Exhibit 99.3
SUBORDINATION AGREEMENT
THIS SUBORDINATION AGREEMENT (this "Agreement") is made and entered into
this ____ day of June, 2006, between Xxxxxxx X. Xxxx, an individual residing at
_________________ (the "Creditor"), Access Worldwide Communications, Inc., a
Delaware corporation (the "Company"), and CapitalSource Finance LLC, a Delaware
limited liability company ("the Lender").
WHEREAS, the Lender and the Company and certain of its affiliates have
entered into that certain Revolving Credit, Term Loan and Security Agreement
dated as June 10, 2003 (as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced from time to
time, the "Loan Agreement,") pursuant to which the Lender has agreed to make
Loans to the Company and certain of its affiliates;
WHEREAS, Company executed that certain Subordinated Promissory Note due on
__________, 200__ in the original principal amount of $2,000,000 dated June ___,
2006 in favor of Creditor (the "Subordinated Note") (a copy of the Subordinated
Note is attached hereto as Exhibit A);
WHEREAS, in connection with a Sixth Amendment to Revolving Credit, Term
Loan and Security Agreement dated May 18, 2006, among the Company, certain of
its Affiliates and Lender ("Amendment"), additional financial accommodations are
being made by the Lender for the benefit of the Company and as a condition to
the Lender's agreement to enter into and perform under the Amendment and to
advance funds pursuant thereto, the parties hereto are required to and hereby
desire to enter into this Agreement pursuant to which the Creditor hereby agrees
to and does, among other things, subordinate his claims and rights to receive
payment under the Subordinated Note in favor of the payment of the Obligations
pursuant to the terms and conditions set forth herein;
WHEREAS, the Lender is willing to perform under the Amendment and to
continue to make the Loans available under the Loan Agreement only upon the
condition that each of the Company and the Creditor executes and delivers to the
Lender, this Agreement and agree to perform and to comply with its obligations
hereunder; and
WHEREAS, Creditor acknowledges and confirms that as a creditor of the
Company (a) he will benefit from the execution, delivery and performance by the
Lender of the Loan Documents and the making of the Advances and the funding of
the Loans to the Company, (b) the Loans by the Lender constitute valuable
consideration to the Creditor, (c) this Agreement is intended to be an
inducement to the Lender to execute, deliver and perform the Amendment, to make
the Advances and to fund the Loans, and (d) the Lender is relying upon this
Agreement in continuing to make the Loans to the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, the receipt and sufficiency of which
are hereby acknowledged, and as an inducement for the Lender to continue to make
advances to the Company, the parties hereto, intending to be legally bound
hereby, do agree as follows:
1. Definitions.
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(a) Capitalized terms used herein and not otherwise defined shall
have the meanings assigned to such terms in the Loan Agreement or, to the extent
the same are used or defined therein, the meanings provided in Article 9 of the
UCC in effect on the date hereof. Whenever the context so requires, each
reference to gender includes the masculine and feminine, the singular number
includes the plural and vice versa. This Agreement shall mean such agreement as
the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, from time to time. Unless otherwise
specified, all accounting terms not defined in the Loan Agreement shall have the
meanings given to such terms in and shall be interpreted in accordance with
GAAP. References in this Agreement to any Person shall include such Person and
its successors and permitted assigns.
(b) As used in this Agreement, the following terms shall have the
meanings specified in this Section 1(b).
"Enforcement Action" shall mean any action, whether legal, equitable,
judicial, non-judicial or otherwise, to collect or receive any amounts under the
Subordinated Note or Subordinated Debt including, without limitation, joining
with any other Person in the filing of petition or action to cause an Insolvency
Event, or to enforce or realize upon any Lien, security interest, restriction,
encumbrance, charge, claim, right or other interest or arrangement now or in the
future existing, including, without limitation, any repossession, foreclosure,
public sale, private sale, collection, receipt, obtaining of a receiver or
retention of all or any part of amounts paid pursuant to the Subordinated Note
or Subordinated Debt or Lender Collateral, or any acceleration of the
Subordinated Note or Subordinated Debt or the exercise or enforcement of any
other right, power or remedy with respect to the Subordinated Note or
Subordinated Debt.
"Lender Collateral" means the "Collateral" as defined in the Loan
Agreement.
"Obligations" has the meaning ascribed to the term "Obligations" in
the Loan Agreement and the other Loan Documents, including, without limitation,
the Loans and all Notes, fees, charges and expenses and other amounts for which
Borrower or any Guarantor is now or hereafter becomes liable to pay or deliver
to the Lender under this Agreement, the Loan Agreement or any other Loan
Document and all renewals or replacements of any of the foregoing.
"Subordinated Debt" means collectively any and all indebtedness,
liabilities, obligations, fees, charges, expenses, and/or payments, all
indemnification and insurance payments and other amounts, penalties, late
charges, interest, advances, payables, covenants and duties of any kind at any
time owing, owed or payable by the Company to the Creditor under or pursuant to
the Subordinated Note or otherwise and all renewals or replacements of any of
the foregoing.
2. Subordination of the Subordinated Note.
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(a) The Subordinated Note and Subordinated Debt are hereby are
expressly subordinated in right of payment, delivery and issuance and in right
of remedies and action to the prior performance and satisfaction and
indefeasible payment in full in cash of the Obligations and termination of the
Loan Documents and to the Lender's right to take all actions and to pursue all
remedies under the Loan Documents, at law, in equity and otherwise as provided
herein.
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(b) Notwithstanding any other provision of, the Subordinated Note,
any of the Loan Documents or any other document executed in connection with any
of the foregoing or evidencing or with respect to any Subordinated Debt, the
Company shall not make any payments of principal, interest or other amounts on
the Subordinated Note, whether scheduled payments, prepayments or otherwise,
until indefeasible payment in full in cash of all of the Obligations and
termination of the Loan Documents.
(c) Notwithstanding any other provision of this Agreement, the
Subordinated Note any Loan Document or any other document, instrument, or
agreement executed in connection with any of the foregoing or evidencing or with
respect to any Subordinated Debt, the Creditor shall not take any Enforcement
Action with respect to any Subordinated Debt or the Subordinated Note until
indefeasible payment in full in cash of all of the Obligations and termination
of the Loan Documents.
(d) If the Company shall make any payment, delivery or issuance with
respect to the Subordinated Note or Subordinated Debt to the Creditor or the
Creditor shall receive or collect any such payment, delivery or issuance or
shall take any Enforcement Action that is prohibited by this Agreement, then (i)
such payment, delivery or issuance shall be deemed to be the property of,
segregated, received and held in trust for the benefit of the Lender, and shall
be immediately paid over and delivered forthwith to the Lender, and (ii) such
Enforcement Action shall be null and void and of no force or effect.
3. Amendments to the Subordinated Note. Each of the Creditor and the
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Company agree not to modify, change, terminate, restate, supplement or amend
orally or by any course of dealing or in any other manner the Subordinated Note
or to modify the method for calculating amounts due under any of the
Subordinated Note without first obtaining the prior written consent of the
Lender. The Creditor shall not assign, transfer or otherwise convey the
Subordinated Note to any Person unless such Person agrees in writing, in form
and substance satisfactory to Lender in its Permitted Discretion, to be bound by
the terms of this Agreement applicable to the Creditor.
4. No Liens. Until full performance and indefeasible and irrevocable
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payment in full in cash of the Obligations and termination of the Loan
Documents, Creditor shall not seek to obtain, and shall not take, accept, obtain
or have, any Lien or security interest in any asset or property of the Company
as security for the Subordinated Note or any Subordinated Debt, or any part
thereof, and, if and to the extent that any such Lien or security interest at
any time exists in favor of Creditor, such Liens and security interests hereby
are subordinated to all Liens, security interests, restrictions, encumbrances,
charges, interests and other arrangements, now or hereafter existing, for the
benefit of or in favor of the Lender or any of its or their Affiliates or its or
their successors or assigns granted or given by the Company or any other
Borrower or any Guarantor or any of its or their Affiliates, successors or
assigns to secure the Obligations, or any part thereof, notwithstanding the date
or order of attachment, creation, effectiveness or perfection of any of the
foregoing or the provision of any applicable law or otherwise. Creditor and the
Company represent that as of the date hereof Creditor does not have and has not
taken or accepted, and the Company has not granted or given to Creditor, any
Lien or security interest in any asset or property of the Company.
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5. Representations and Warranties of Company and the Creditor. Each of
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the Company and Creditor severally represent and warrant to Lender, as
applicable, that:
(a) it has not relied and will not rely on any representation or
information of any nature made by or received from the Lender in deciding to
execute this Agreement;
(b) all terms and provisions relating to the Subordinated Note, and
Subordinated Debt, including, without limitation, the computation of the
interest and principal due under the Subordinated Note, are set forth solely in
the Subordinated Note, and there are no other liabilities, indebtedness,
amounts, payments, covenants, agreements, or other obligations (other than those
reflected in the Subordinated Note) owing to the Creditor by or from the
Company;
(c) it is not a party to or subject to or bound by any agreement
document, or instrument conflicting with this Agreement or the Subordinated Note
(and all agreements ancillary thereto) or otherwise relating to the Subordinated
Debt other than the Subordinated Note, and its obligations under this Agreement
are not subordinated in any way to any other obligation of such Person or to the
rights of any other Person;
(d) (i) the execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby have been
duly and validly authorized by all necessary actions and pursuant to all
necessary consents required therefore; (ii) this Agreement has been duly
executed and delivered by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, subject to the
effect of any applicable bankruptcy, moratorium, insolvency, reorganization or
other similar law affecting the enforceability of creditors' rights generally
and to the effect of general principles of equity which may limit the
availability of equitable remedies (whether in a proceeding at law or in
equity); and (iii) no approval, consent, authorization of, filing registration
or qualification with, or other action by, it or any other Person or
Governmental Authority is or will be necessary to permit the valid execution,
delivery and performance of this Agreement by it or the consummation of the
transactions contemplated hereby;
(e) the execution, delivery and performance by it of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
(i) conflict with or violate any provision of any applicable law, statute, rule,
regulation, ordinance, license or tariff or any judgment, decree or order of any
court or other Governmental Authority binding on or applicable to it or any of
its properties or assets; (ii) conflict with, result in a breach of, constitute
a default of or an event of default under, or an event, fact, condition or
circumstance which, with notice or passage of time, or both, would constitute or
result in a conflict, breach, default or event of default under, require any
consent not obtained under, or result in or require the acceleration of any
indebtedness pursuant to, any indenture, agreement or other instrument to which
it is a party or by which it, or any of its properties or assets are bound or
subject; (iii) if applicable, conflict with or violate any provision of its
certificate of incorporation or formation, by-laws, limited liability company
agreement or similar documents or any agreement by and between it and its
shareholders or equity owners or among any such shareholders or equity owners;
or (iv) result in the creation or imposition of any Lien of any nature
whatsoever upon any of its properties or assets.
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(f) (i) it is not in default or breach of the performance, observance
or fulfillment of any obligation, covenant or condition contained in any
agreement, document or instrument to which it is a party or by which it or any
of its properties or assets is or are bound or subject, which default or breach,
if not remedied within any applicable grace period or cure period, could
reasonably be expected to have or result in a Material Adverse Effect or that
could interfere with the validity of this Agreement or its right to enter into
this Agreement or its ability to perform the transactions contemplated hereby;
and (ii) there is no action, suit, proceeding or investigation pending or, to
its knowledge, threatened, before or by any court, arbitrator or Governmental
Authority (1) against or affecting it, this Agreement or the transactions
contemplated hereby, or (2) that questions or could prevent the validity of this
Agreement or its right or ability to execute or deliver this Agreement or to
consummate the transactions contemplated hereby;
(g) it is not (i) a party to any judgment, order or decree or any
agreement, document or instrument, or subject to any restriction, which would
materially adversely affect its ability to execute and deliver, or perform
under, this Agreement, or (ii) in default in the performance, observance or
fulfillment of any obligation, covenant or condition contained in any agreement,
document or instrument to which it is a party or to which any of its properties
or assets are subject, which default, if not remedied within any applicable
grace or cure period, could reasonably be expected to have or result in a
Material Adverse Effect, nor is there any event, fact, condition or circumstance
which, with notice or passage of time or both, would constitute or result in a
conflict, breach, default or event of default under, any of the foregoing which,
if not remedied within any applicable grace or cure period could reasonably be
expected to have or result in a Material Adverse Effect;
(h) the Subordinated Note is in full force and effect and has not
been amended, modified, terminated or supplemented, and constitutes the legal,
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms;
(i) Creditor is the legal and beneficial direct owner of the
Subordinated Note free and clear of all Liens and has not transferred, sold,
pledged, encumbered, assigned or otherwise disposed of the Subordinated Note or
any part thereof; and
(j) Creditor has full legal capacity and has all requisite power,
right and authority to execute, deliver and perform under this Agreement and is
not under any legal restriction, limitation or disability that would prevent it
from doing any of the foregoing.
The foregoing representations and warranties (i) are made by each of the
Company and the Creditor with the knowledge and intention that the Lender will
rely thereon, (ii) shall survive the execution and delivery of this Agreement,
and (iii) do not contain any untrue statements of material fact or omit to state
any fact necessary to make the statements herein not materially misleading, and
there is no fact known to the Company or the Creditor which it has not disclosed
to Lender in writing which could reasonably be expected to have or result in a
Material Adverse Effect.
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6. Covenants. Until full performance and indefeasible and irrevocable
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payment in full in cash of the Obligations and termination of the Loan
Documents, except as specifically and expressly permitted in this Agreement:
(a) Creditor and its Affiliates shall not commence or join with any
other Person in commencing in any bankruptcy, reorganization, receivership or
similar proceeding or other Enforcement Action in connection with Company or any
Guarantor or any of its or their Affiliates or any of its or their assets or
properties or the Subordinated Note or Subordinated Debt;
(b) each of Creditor and Company shall take all necessary and
appropriate actions to ensure that (i) this Agreement and the provisions hereof
remain enforceable against Creditor and Company, as applicable, and (ii) it
complies with its covenants, agreements and obligations under this Agreement;
(c) neither Creditor nor Company, nor any of their respective
Affiliates, shall do or cause or permit to be done, or enter into or make or
become a party to any agreement (oral or written), arrangement or commitment to
do or cause to be done, any of the things prohibited by this Agreement or that
conflicts with this Agreement or that would prevent it from complying herewith
and/or performing hereunder;
(d) the Creditor and Company each hereby shall take or cause to be
taken such further actions, to obtain such consents and approvals and to duly
execute, deliver and file or cause to be executed, delivered and filed such
further agreements, assignments, instructions, documents and instruments as may
be necessary or as may be requested by the Lender in its Permitted Discretion in
order to fully effectuate the purposes, terms and conditions of this Agreement
and the consummation of the transactions contemplated hereby, whether before, at
or after the performance of the transactions contemplated hereby or the
occurrence of a Default or Event of Default;
(e) each of Creditor and Company shall notify the Lender in writing
promptly of any material default or breach by the Company under the Subordinated
Note or this Agreement or of any termination of the Company's obligations under
the Subordinated Note or Subordinated Debt, provided, that any failure to
deliver any such notices shall not otherwise affect the subordination provisions
or other obligations, agreements or covenants of Creditor or Company herein;
(f) Creditor shall, upon reasonable request by the Lender, and
subject to any applicable confidentiality or other legal requirements, furnish
promptly or make available to the Lender, for its benefit and the benefit of the
Lender, copies of all books, records, monthly reports, statements of account,
budgets, and any other similar items which Creditor maintains with respect to
payments under the Subordinated Note and Subordinated Debt;
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(g) Creditor shall not (i) sell, lease, transfer, pledge, encumber,
restrict, assign or otherwise dispose of the Subordinated Note or any interest
therein to any Person unless such Person agrees in writing, in form and
substance satisfactory to Lender in its Permitted Discretion, to be bound by the
terms of this Agreement with respect to such payments, deliveries and issuances
and amounts owing to it by the Company, or (ii) create, incur, assume or suffer
to exist any Lien on the Lender Collateral or any other property or asset of the
Company; and
(h) the Company shall keep true, complete and accurate records with
respect to the Subordinated Note and Subordinated Debt and amounts due
thereunder.
7. Loan Agreement; Acknowledgment and Consent.
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(a) The Creditor acknowledges and confirms receipt of a copy of the
Loan Agreement and hereby acknowledges and consents to all terms and provisions
of the Loan Agreement and the execution, delivery and performance by Company of
the Loan Agreement and other Loan Documents, including, without limitation, the
creation of the Obligations and the granting of security interests by the
Company pursuant thereto and the rights of Lender to assign and participate any
part of the Loans pursuant to Section 12.2 of the Loan Agreement.
(b) The Creditor acknowledges and agrees that the Lender shall have
unconditional power and discretion, without notice to or consent from the
Creditor, to make any change, modification or amendment at any time to any of
the Loan Documents, Loans, Notes and/or Obligations and to deal in any manner
with the Loan Documents, Loans, Notes and/or Obligations and any security or
guaranties therefor, including, without limitation, the release, surrender,
extension, renewal, acceleration, compromise or substitution thereof without
affecting, impairing, or discharging, in whole or in part, the obligations of
the Creditor hereunder. Without limiting the foregoing, the Lender may
administer the Loan Documents, Loans and Obligations in any manner it sees fit
and may take and do any and all actions (or refrain therefrom) with respect to
the Loan Documents, Loans and Obligations, including, without limitation,
release any or all Lender Collateral for the Obligations, release any guarantor
of the Obligations, extend the time for payment of the Obligations, or any part
thereof, change the interest rate on the Obligations under the Loan Documents,
reduce or increase the amount of the Obligations under the Loan Documents,
accelerate the Obligations, make any amendment, or modification whatsoever of
any of the terms or conditions of the Loan Documents, extend, in whole or in
part, by renewal or otherwise, the time for the payment of any principal or
interest or any other amount pursuant to the Notes or for the performance of any
term or condition of the Loan Documents, settle, release, substitute, modify,
impair or exercise, or fail or refuse to exercise, any claims, rights, or
remedies, of any kind or nature, which the Lender may at any time have against
Company, or with respect to any collateral or lien held by the Lender at any
time, whether under any Loan Document or otherwise, and collect and retain or
liquidate any property or assets subject to such lien, or foreclose on any of
the Lender Collateral, take additional collateral, obtain additional guarantors,
accept a deed in lieu of foreclosure, exercise any and all powers, rights and
remedies and/or take or fail to take any other action with respect to the
Obligations.
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8. Insolvency Proceedings. If there shall occur any receivership,
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insolvency, assignment for the benefit of creditors, bankruptcy (voluntary or
involuntary), reorganization, arrangement with creditors (whether or not
pursuant to bankruptcy or other insolvency laws), sale of all or substantially
all the assets of, or the, dissolution, liquidation or any other marshaling of
the assets and liabilities of, Company or any Guarantor (each, an "Insolvency
Event") (i) the Lender, shall be entitled to receive indefeasible and
irrevocable payment in full in cash and full performance and satisfaction of all
Obligations then outstanding before Creditor or any of its Subsidiaries or
Affiliates shall be entitled to receive any payment or distribution, whether in
cash, securities or other property, in respect of any amounts due with respect
to the Subordinated Note or Subordinated Debt at the time outstanding, (ii)
Creditor hereby assigns to the Lender all rights, title, and interest of the
Creditor in and to the Subordinated Note and Subordinated Debt and any claims
arising thereunder in any such proceeding in connection with an Insolvency
Event; and (iii) any payment or distribution, whether in cash, securities or
other property payable or deliverable in respect of the amounts due under or
with respect to the Subordinated Note or Subordinated Debt shall be paid or
delivered, to the extent of the unpaid balance of the Obligations, for
application to the payment thereof, directly to the Lender. In the event of any
proceedings in connection with an Insolvency Event, Lender shall be entitled to
rely upon this Agreement, which the parties acknowledge is enforceable in
accordance with its terms upon the occurrence of any Insolvency Event, and shall
have the right to prove, in addition to its claims on account of the
Obligations, its claims hereunder in any such proceeding, so as to establish its
rights hereunder and to receive directly from any receiver, trustee or other
court officer or custodian distributions of any sort which would otherwise be
payable on account of the Collateral or Obligations.
9. Reliance. The Creditor, by its acceptance hereof, acknowledges and
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agrees as a creditor of Company, that (a) it will benefit from the execution,
delivery and performance by the Lender of the Loan Documents, the making of the
Advances and the funding of the Loans to the Company, (b) the funding of the
Loans by the Lender constitute valuable consideration to the Creditor, (c) this
Agreement is intended to be an inducement to the Lender to execute, deliver and
perform the Loan Documents, to make Advances and to fund the Loans to Company,
whether the Obligations under the Loan Documents were created or existed before
or after the creation or existence of the Subordinated Note or Subordinated
Debt, and (d) the Lender is relying on the subordination and other provisions of
this Agreement in entering into and performing under the Loan Documents and in
acquiring and holding, or in continuing to hold, the Loans and in making and
funding the Advances and Loans to the Company.
10. Rights of the Lender Regarding Collateral. In addition to the
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provisions set forth in this Agreement and in the Loan Documents, upon the
occurrence of a Default or an Event of Default the Lender shall have the right
to exercise any and all other rights and remedies provided for herein or in any
Loan Document, under the UCC or at law or equity generally, including, without
limitation, the right (a) to foreclose its security interests and Liens, (b) to
realize upon or to take possession of or sell any of the Lender Collateral with
or without judicial process, and (c) to exercise, in the name of the Creditor
and Company, such rights and powers with respect to the Lender Collateral as the
Creditor or Company might exercise.
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11. No Third Party Beneficiary; Subrogation. This Agreement is not
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intended to benefit or confer any rights upon Company or upon any third party.
After and to the extent that all Obligations owing to Lender under the Loan
Documents have been indefeasibly paid in full due to payments or distributions
to Lender on account of this Agreement, then and to that extent, Creditor shall
become subrogated to the rights of Lender under the Loan Documents to receive
payment of the remaining Obligations from Company, if any. The Company agrees
that no such payments or distributions directed to Lender on account of this
Agreement shall be deemed by the Company, whether in connection with its other
creditors or otherwise, to be a payment by the Company on account of the
Subordinated Note or Subordinated Debt.
12. Rights and Remedies. The Lender, shall have the right in its sole
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discretion to determine which rights and/or remedies the Lender may at any time
pursue, relinquish, subordinate or modify, and such determination will not in
any way modify or affect any of the Lender's rights, Liens or remedies under any
Loan Document or this Agreement, applicable law or equity. The enumeration of
any rights and remedies in this Agreement or any Loan Document is not intended
to be exhaustive, and all rights and remedies of the Lender described in this
Agreement and the Loan Documents are cumulative and are not alternative to or
exclusive of any other rights or remedies which the Lender otherwise may have.
The partial or complete exercise of any right or remedy shall not preclude any
other further exercise of such or any other right or remedy.
13. Waiver.
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(a) No course of action or dealing, renewal, waiver, release or
extension of any provision of any Loan Document or this Agreement, or single or
partial exercise of any such provision, or delay, failure or omission on the
Lender's part in enforcing any such provision shall affect the liability of
Creditor or the Company or operate as a waiver of such provision or preclude any
other or further exercise of such provision. No waiver by the Lender of any one
or more defaults by any other party in the performance of any of the provisions
of any Loan Document or this Agreement shall operate or be construed as a waiver
of any future default, whether of a like or different nature, and each such
waiver shall be limited solely to the express terms and provisions of such
waiver.
(b) Notwithstanding any other provision of any Loan Document or this
Agreement or any other document executed in connection with any of the foregoing
or evidencing or with respect to any Subordinated Debt, by completing the
Closing and/or making of Advances and/or funding the Loans, Lender does not
waive any breach of any representation or warranty under any Loan Document or
this Agreement, and all of the Lender's claims and rights resulting therefrom
are specifically reserved.
(c) The Creditor hereby waives and agrees not to assert against the
Lender any rights which a guarantor or surety could exercise (provided that the
Creditor has not assumed and is not hereby assuming the status of guarantor or
surety with respect to the Obligations), and nothing in this Agreement shall
constitute or be construed as making the Lender a guarantor or surety.
(d) The Creditor waives any and all claims against the Lender for the
failure of the Lender or any other person to exercise diligence or reasonable
care in the preservation, protection, enforcement, sale or other treatment of
all or any part of the Lender Collateral, or based upon any other action taken
or omitted to be taken with respect to the Obligations or Lender Collateral by
the Lender. The Creditor agrees that the Lender have no duties of any nature
whatsoever to the Creditor, whether express or implied, by virtue of this
Agreement operation of law or otherwise.
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(e) The Creditor hereby irrevocably waives and agrees not to assert
any right of setoff, recoupment, counterclaim, defense, demand, presentment,
protest and/or deduction under contract, at law or in equity or otherwise which
may now exist or may hereafter arise as a result of the existence of the
Subordinated Note, and/or Subordinated Debt or any other indebtedness,
obligations, loans, advances or accounts payable, covenants and duties of any
kind or nature, now or hereafter owing by the Company or its Affiliates or its
or their successors or assigns to the Creditor whether direct or indirect,
absolute or contingent, secured or unsecured or due or to become due, and all
defenses with respect to any and all instruments and all notices and demands of
any description, and the pleading of any statute of limitations as a defense to
any demand. The Creditor waives any rights it may have under applicable law or
assert the doctrine of marshalling or otherwise to require the Lender to marshal
any property of the Company for the benefit of the Creditor.
14. Entire Agreement. This Agreement constitutes the entire agreement
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between the Creditor, the Company and the Lender with respect to the subject
matter hereof and thereof, and supersedes all prior agreements and
understandings, if any, relating to the subject matter hereof. Any promises,
representations, warranties or guarantees not herein contained and hereinafter
made with respect to the subject matter hereof shall have no force and effect
unless in writing signed by the parties hereto. Each party hereto acknowledges
that it has been advised by counsel in connection with the negotiation and
execution of this Agreement and is not relying upon oral representations or
statements inconsistent with the terms and provisions hereof.
15. Amendment. No provision of this Agreement may be changed, modified,
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amended, restated, waived, supplemented, discharged, canceled or terminated
orally or by any course of dealing or in any other manner other than by a
written agreement signed by the Creditor, the Lender and the Company. Each party
hereto acknowledges that it has been advised by counsel in connection with the
negotiation and execution of this Agreement and is not relying upon oral
representations or statements inconsistent with the terms and provisions hereof.
16. Notices. Any notice or request under this Agreement shall be given to
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any party hereto at such party's address set forth beneath its signature on the
signature page hereto, or at such other address as such party may hereafter
specify in a notice given in the manner required under this Section 17. Any such
notice or request shall be given only by, and shall be deemed to have been
received upon (each, a "Receipt"): (a) registered or certified mail, return
receipt requested, on the date on which such received as indicated in such
return receipt, (b) delivery by a nationally recognized overnight courier, one
(1) Business Day after deposit with such courier, or (c) facsimile or electronic
transmission, in each case upon telephone or further electronic communication
from the recipient acknowledging receipt (whether automatic or manual from
recipient), as applicable.
10
17. Governing Law; Jurisdiction; Construction. This Agreement shall be
-----------------------------------------
governed by and construed in accordance with the internal laws of the State of
Maryland without giving effect to its choice of law provisions. Any judicial
proceeding against the Creditor or the Company with respect to any Subordinated
Debt and/or the Subordinated Note, any of the Loan Documents or this Agreement
may be brought in any federal or state court of competent jurisdiction located
in the State of Maryland. By execution and delivery of this Agreement, the
Creditor and the Company each (a) accepts the non-exclusive jurisdiction of the
aforesaid courts and irrevocably agrees to be bound by any judgment rendered
thereby, (b) waives personal service of process, (c) agrees that service of
process upon it may be made by certified or registered mail, return receipt
requested, pursuant to Section 17 hereof, and (d) waives any objection to
jurisdiction and venue of any action instituted hereunder and agrees not to
assert any defense based on lack of jurisdiction, venue, convenience or forum
non conveniens. Nothing shall affect the right of the Lender to serve process in
any manner permitted by law or shall limit the right of the Lender to bring
proceedings against the Creditor or Company in the courts of any other
jurisdiction having jurisdiction. Any judicial proceedings against the Lender,
involving, directly or indirectly, the Subordinated Debt and/or Subordinated
Note, Loan Documents, or this Agreement shall be brought only in a federal or
state court located in the State of Maryland. Each of the Creditor and the
Company acknowledges that it participated in the negotiation and drafting of
this Agreement and that, accordingly, it shall not move or petition a court
construing this Agreement to construe it more stringently against one party than
against any other.
18. Severability; Captions; Counterparts; Facsimile Signature. If any
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provision of this Agreement is adjudicated to be invalid under applicable laws
or regulations, such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the remainder of
this Agreement which shall be given effect so far as possible. The captions in
this Agreement are intended for convenience and reference only and shall not
affect the meaning or interpretation of this Agreement. This Agreement may be
executed in one or more counterparts (which taken together, as applicable, shall
constitute one and the same instrument) and by facsimile transmission, which
facsimile signatures shall be considered original executed counterparts. Each
party to this Agreement agrees that it will be bound by its own facsimile
signature and that it accepts the facsimile signature of each other party.
19. Successors and Assigns; Participations; New Lenders. This Agreement
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(a) shall inure to the benefit of, and may be enforced by, the Lender,
Transferees, Participants (to the extent expressly provided in the Loan
Agreement) and all future holders of the Notes, and any lender funding to or
funding or financing source for the Lender any of the Obligations or any of the
Lender Collateral and each of their respective successors and permitted assigns,
and (b) shall be binding upon and enforceable against the Creditor and the
Company and the Creditor's and the Company's permitted assigns and successors.
The Creditor and the Company shall not assign, delegate or transfer this
Agreement or any of its rights or obligations thereunder without the prior
written consent of the Lender. This Agreement shall be binding upon the Creditor
and the Company and their respective heirs, administrators, executors,
successors and assigns. Nothing contained in this Agreement or any other Loan
Document shall be construed as a delegation to the Lender or any Lender of the
Company's duty of performance. EACH OF THE CREDITOR AND THE COMPANY ACKNOWLEDGES
AND AGREES THAT THE LENDER AT ANY TIME AND FROM TIME TO TIME MAY (I) DIVIDE AND
REISSUE (WITHOUT ANY SUBSTANTIVE CHANGES OTHER THAN THOSE RESULTING FROM SUCH
DIVISION) THE NOTES, AND/OR (II) SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS
IN OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS
AGREEMENT, ANY NOTE, THE OBLIGATIONS, THE LENDER COLLATERAL AND/OR THE LOAN
DOCUMENTS TO ONE OR MORE OTHER PERSONS, IN EACH CASE ON THE TERMS AND CONDITIONS
IN THE LOAN AGREEMENT.
11
The terms "Lender" in this Agreement includes Transferees and Participants and
successors and assigns, each of which shall have all rights and benefits of the
Lender hereunder. Each Transferee and Participant and lender to or funding or
financing source for the Lender (to the extent provided in the Loan Agreement)
shall have all of the rights and benefits with respect to the Obligations,
Notes, Lender Collateral, this Agreement and/or Loan Documents held by it as
fully as if the original holder thereof. Notwithstanding any other provision of
this Agreement or any Loan Document or any other document executed in connection
with any of the foregoing or evidencing or with respect to any Subordinated
Debt, the Lender may disclose to any Transferee or Participant all information,
reports, financial statements, certificates and documents obtained under any
provision of this Agreement; provided, that Transferees and Participants shall
be subject to the confidentiality provisions contained in the Loan Agreement
that are applicable to Lender.
20. Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
--------------------
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION ARISING
HEREUNDER OR IN ANY WAY CONNECTED WITH OR INCIDENTAL TO THE DEALINGS OF THE
PARTIES WITH RESPECT HERETO OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER NOW
EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE. EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO
THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH
ANY COURT AS WRITTEN EVIDENCE OF THE CONSENTS OF THE PARTIES TO THE WAIVER OF
THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY.
21. Survival; Termination. It is the express intention and agreement of
---------------------
the parties hereto that all covenants, representations, warranties and waivers
and indemnities made by the Creditor and/or the Company herein shall survive the
execution, delivery and termination of this Agreement until all Obligations are
performed in full and indefeasibly paid in full in cash. This Agreement shall
continue in full force and effect until full performance and indefeasible
payment in full in cash of all Obligations and termination of the Loan
Documents. Notwithstanding any other provision of this Agreement or any Loan
Document or any other document executed in connection with any of the foregoing
or evidencing or with respect to any Subordinated Debt, no termination of this
Agreement shall affect the Lender's rights or any of the Obligations existing as
of the effective date of such termination until the Obligations have been fully
performed and indefeasibly paid in cash in full.
12
22. Confidentiality and Publicity. Each of Creditor and the Company agree
-----------------------------
that the Lender and each Lender reserves the right to review and approve all
materials that the Creditor or the Company or any of its Affiliates prepares
that contain the Lender's name or describe or refer to this Agreement, any of
the terms hereof or thereof or any of the transactions contemplated hereby or
thereby. Creditor shall not, and shall not permit any of its Affiliates to, use
the Lender's name (or the name of any of the Lender's Affiliates) in connection
with any of its business operations. Nothing contained in this Agreement is
intended to permit or authorize any party hereto or any of their Affiliates to
contract on behalf of any other party hereto. Creditor agrees that Lender or any
Affiliate of Lender may disclose a general description of transactions arising
under this Agreement for advertising, marketing or other similar purposes.
23. Approvals and Duties. Unless expressly provided herein to the
--------------------
contrary, any approval, consent, waiver or satisfaction of the Lender with
respect to any matter that is subject of this Agreement or any Loan Document may
be granted or withheld by the Lender in its sole and absolute discretion. Other
than the Lender's duty of reasonable care with respect to the Lender Collateral,
the Lender shall have no responsibility for or obligation or duty with respect
to any of the Lender Collateral or any matter or proceeding arising out of or
relating thereto, including, without limitation, any obligation or duty to
collect any sums due in respect thereof or to protect or preserve any rights
pertaining thereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
13
Signature Page to Subordination Agreement
IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Subordination Agreement as of the date first written above.
LENDER:
------
CAPITALSOURCE FINANCE LLC
By:
------------------------------------------
Title:
------------------------------------------
CapitalSource Finance LLC
0000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxx Xxxxx, XX 00000
Attention: Healthcare Finance Group, Portfolio
Manager
Telephone: (000) 000-0000
Fax: (000) 000-0000
COMPANY:
-------
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:
-------------------------------------
Title:
-------------------------------------
Telephone:
-------------------------------------
Fax:
-------------------------------------
E-MAIL:
-------------------------------------
CREDITOR:
--------
------------------------------------------------
Xxxxxxx X. Xxxx
Address:
-------------------------------------
Telephone:
-------------------------------------
Fax:
-------------------------------------
E-MAIL:
-------------------------------------
14
Exhibit A
---------
Subordinated Note
-----------------
See Attached
15
