-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, TO1cKupUHoaX3Q1WVkHOATGlH8SLrmiXAutj+Aj6voTxaoFgs0BskY09d7Zl1/8u f1czu+3itF30UcGrUe/J/g== 0001275287-06-003236.txt : 20060616 0001275287-06-003236.hdr.sgml : 20060616 20060615184950 ACCESSION NUMBER: 0001275287-06-003236 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20060612 ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060616 DATE AS OF CHANGE: 20060615 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ACCESS WORLDWIDE COMMUNICATIONS INC CENTRAL INDEX KEY: 0001048422 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-MANAGEMENT CONSULTING SERVICES [8742] IRS NUMBER: 521309227 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 333-38845 FILM NUMBER: 06908350 BUSINESS ADDRESS: STREET 1: 4950 COMMUNICATIONS AVE CITY: BOCA RATON STATE: FL ZIP: 33431 BUSINESS PHONE: 5162265000 MAIL ADDRESS: STREET 1: 4950 COMMUNICATIONS AVE CITY: BOCA RATON STATE: FL ZIP: 33431 FORMER COMPANY: FORMER CONFORMED NAME: CULTURAL ACCESS WORLDWIDE INC DATE OF NAME CHANGE: 19971023 8-K 1 aw6137.txt FORM 8-K ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) June 12, 2006 ACCESS WORLDWIDE COMMUNICATIONS, INC. ------------------------------------------------------ (Exact name of registrant as specified in its charter) Delaware 000-23489 52-1309227 ---------------------------- ------------ ------------------- (State or other jurisdiction (Commission (I.R.S. Employer of incorporation) File Number) Identification No.) 4950 Communication Avenue, Suite 300, Boca Raton, Florida 33431 --------------------------------------------------------- ---------- (Address of principal executive offices) (Zip Code) Registrant's telephone number, including area code (571) 438-6140 N/A -------------------------------------------------------------- (Former name or former address, if changed since last report.) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [ ] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ================================================================================ ITEM 2.03 CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT On June 12, 2006 (the "Issuance Date"), Access Worldwide Communications, Inc. (the "Company") issued to Charles Henri Weil (the "Holder"), in exchange for two million dollars ($2,000,000), a promissory note (the "Note"). The Note shall mature four (4) months from the Issuance Date. In addition to the Note, the Company issued to the Holder on the Issuance Date, two hundred thousand (200,000) warrants (the "Warrant"). The Warrant was fully vested upon the Issuance Date and has an exercise price equal to $0.01 per share. The Warrant shall remain exercisable until the date that is ten (10) years from the Issuance Date. ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS. (d) Exhibits 99.1 Subordinated Promissory Note (the "Note") dated June 12, 2006, by and between Access Worldwide Communications, Inc. and Charles Henri Weil. 99.2 Warrant Certificate dated June 12, 2006, by and between Access Worldwide Communications, Inc. and Charles Henri Weil. 99.3 Subordination Agreement by and among the Company, Charles Henri Weil, and CapitalSource Finance, LLC. 2 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. ACCESS WORLDWIDE COMMUNICATIONS, INC. ------------------------------------- (Registrant) Date: June 14, 2006 By /s/ Mark Wright ---------------------------------- General Counsel, Secretary 3 EX-99.1 2 aw6137ex991.txt EXHIBIT 99.1 Exhibit 99.1 THE OBLIGATIONS, LIABILITIES AND INDEBTEDNESS EVIDENCED HEREBY ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH HEREIN TO THE INDEBTEDNESS AND OTHER LIABILITIES OWED BY THE COMPANY (DEFINED BELOW) UNDER AND PURSUANT TO THE REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT, DATED AS OF JUNE 10, 2003 BY AND BETWEEN THE COMPANY, CERTAIN AFFILIATES OF THE COMPANY AND THE SENIOR LENDER (DEFINED BELOW), AND EACH OTHER "LOAN DOCUMENT" (AS DEFINED THEREIN), EACH AS MAY BE AMENDED, RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, AND ANY OTHER HOLDER OF INSTITUTIONAL DEBT (DEFINED BELOW), AND EACH HOLDER HEREOF, BY ITS ACCEPTANCE HEREOF, ACKNOWLEDGES AND AGREES TO BE BOUND BY SUCH SUBORDINATION PROVISIONS. $2,000,000.00 ACCESS WORLDWIDE COMMUNICATIONS, INC. SUBORDINATED PROMISSORY NOTE ACCESS WORLDWIDE COMMUNICATIONS, INC., a Delaware corporation (along with its subsidiaries, the "Company"), promises to pay to Charles Henri Weil (the "Holder") the principal sum of two million dollars and 00/100 cents ($2,000,000.00) on the Maturity Date (as defined below). Pursuant to this subordinated promissory note (the "Note"), the Holder is funding two million dollars ($2,000,000.00) in cash or other immediately available funds to the Company on the date of execution hereof. This Note shall mature on the date (the "Maturity Date") that is the earlier of (a) four (4) months (the "Term") from the date of this Agreement (the "Effective Date") or (b) upon a Change of Control (as defined below), in either case, only after (i) all amounts due under any and all agreements or other instruments evidencing the Company's Institutional Debt (as defined below) have been indefeasibly paid in full in cash or (ii) the holder of the Company's Institutional Debt consents in writing to the repayment of the principal amount hereof. Provided, however, that if the principal amount hereof is not paid at the Maturity Date, such failure to pay shall result in an Event of Default as described in Section 1 below. For purposes of this Note, a "Change of Control" shall be deemed to occur on the effective date of any merger, consolidation, or reorganization which results in the holders of the outstanding voting securities of the Company (determined immediately prior to such merger or consolidation) owning less than an majority of the outstanding voting securities of the surviving corporation (determined immediately following such merger or consolidation), or any sale or transfer by the Company of all or substantially all of its assets. Notwithstanding the foregoing, a Change of Control shall not be deemed to occur if the Company either merges or consolidates with or into another company or sells or disposes of all or substantially all of its assets to 1 another company, if such merger, consolidation, sale or disposition is in connection with a corporate restructuring wherein the stockholders of the Company immediately before such merger, consolidation, sale, or disposition own, directly or indirectly, immediately following such merger, consolidation, sale, or disposition at least a majority of the combined voting power of all outstanding classes of securities of the company resulting from such merger or consolidation, or to which the Company sells or disposes of its assets, in substantially the same proportion as their ownership in the Company immediately before such merger, consolidation, sale, or disposition. For purposes of this Note, "Institutional Debt" means the principal of and premium, if any, and interest on (including interest which accrues after a bankruptcy, notwithstanding any law to the contrary), and any other indebtedness, obligations, liabilities, charges, fees, costs, and expenses payable pursuant to the terms of agreements or instruments creating or evidencing indebtedness of the Company outstanding as of the date of initial issuance of this Note or indebtedness thereafter created, assumed, incurred, or guaranteed by the Company and its affiliates, and all renewals, extensions, and refinances thereof, which is payable to banks, commercial finance companies, insurance companies or other institutional lenders including, without limitation, CapitalSource Finance LLC and its affiliates, its successors, assigns or other transferees (the "Senior Lender"). Upon the Effective Date of this Agreement, the Holder of this Note will earn a Holder's Fee equal to two hundred thousand (200,000) warrants in the form attached hereto as Exhibit A, (the "Holder's Fee") due and payable upon the Effective Date. Copies of all credit agreements and other instruments evidencing the Company's Institutional Debt are available for the Holder's review at the Company's executive offices. Any outstanding principal balance of this Note shall be payable in cash or other immediately available funds to the Holder upon the earlier of (i) the Maturity Date, or (ii) upon acceleration of all amounts due and owing hereunder in accordance with the terms hereinafter set forth. The principal amount may be paid before the Maturity Date, in full or in part, subject to obtaining the prior written consent of any holders of the Company's Institutional Debt, at any time by providing the Holder thirty (30) days written notice of its intent to prepay all or any part of the Note. 1. Events of Default. Subject to the terms of any agreements or ----------------- instruments evidencing the Company's Institutional Debt, and subject to the rights of the holders of such Institutional Debt, the occurrence of any one or more of the following shall constitute an "Event of Default" hereunder: (a) nonpayment by the Company of any portion of the principal or Holders Fee when due in accordance with the terms hereof; (b) the Company (i) suspending or discontinuing its business, (ii) making an assignment for the benefit of creditors, or (iii) filing a voluntary petition in bankruptcy or having a petition in bankruptcy filed against it. 2 If an Event of Default occurs, then, subject to the terms of any agreements or instruments evidencing the Company's Institutional Debt, and subject to the rights of the holders of such Institutional Debt, (i) the Holder may declare the principal amount of this Note, to be immediately due and payable, and (ii) Holder will receive an additional Holders Fee. Additionally, with the passing of each four (4) month Term of the Note, the Holder will continue to receive additional Holder's Fees until such time that the principal amount of the Note is paid in full to Holder. In no event shall Holder seek remedies from Company as a result of an Event of Default outside that which is set forth in this Section 1. 2. Use of Proceeds. The Company shall use the proceeds obtained from the --------------- sale of this Note for, among other things, its working capital needs. 3. Subordination. ------------- (a) Subordination of Payment. The Holder hereby: (i) subordinates all ------------------------ obligations, liabilities, indebtedness, claims and demands arising hereunder to all of the Institutional Debt; and (ii) agrees that payment of principal and any other amounts owing hereunder is hereby expressly subordinated to payment in full of the Institutional Debt (including without limitation all interest accruing on any Senior Debt or any financing provided by Senior Lender after the commencement of any proceeding described in Section 1(d) hereof). (b) Unsecured Note. The Holder and the Company agree that this Note -------------- and the obligations, indebtedness and liabilities evidenced hereby, are, and at all times shall be, unsecured. (c) Limit on Enforcement Actions by the Holder. The Holder hereby ------------------------------------------ agrees not to accelerate, demand, sue for, commence any collection or enforcement action or proceeding with respect to, take, receive, accept or retain any payment or distribution of any character, whether in cash, securities or other property, and whether by set off or otherwise, in respect of the principal or any other payment in connection with the obligations, liabilities and indebtedness evidenced hereby; or incur any debt or liability to, or receive any loan, return of capital, advance, gift, dividend or any other transfer of any property whether real or personal, or tangible or intangible, from the Company with respect to the obligations, liabilities and indebtedness evidenced hereby (each, an "Enforcement Action") until the Institutional Debt shall have been paid in full with interest (including without limitation interest during any bankruptcy or similar proceeding involving the Company, from the date of the filing thereof to the date of distribution, notwithstanding any statute, including without limitation the Federal Bankruptcy Code, any rule of law or bankruptcy procedures to the contrary). (d) Bankruptcy, Insolvency, Etc. Upon any bankruptcy, insolvency, --------------------------- dissolution, receivership, or other proceeding involving the Company or its property, the Holder agrees that all Institutional Debt shall first be indefeasibly paid in full in cash before any payment or distribution of any kind is made to the Holder of this Note and any payment or distribution that may be made with respect to this Note, whether in cash, securities, or otherwise, shall be held 3 in trust for the benefit of the holder of the Institutional Debt and immediately upon receipt delivered to the holder of the Institutional Debt until all Institutional Debt has been paid in full and the Holder shall irrevocably authorize, empower and direct all receivers, trustees, liquidators, conservators and others having authority to effect all such payments and deliveries. The Holder shall take no actions which would (i) impair any rights or interests of the Senior Lender under any Loan Document or of any other holder of Institutional Debt under any other agreement or instrument or under this Section 3, (ii) contest the validity or enforceability of the Institutional Debt, any Loan Document, any other agreement or instrument evidencing or relating to the Institutional Debt, Section 3 of this Note or any of the respective terms thereof, or (iii) impair the ability of the Senior Lender or any other holder of Institutional Debt to enforce and collect the Institutional Debt or to preserve, protect and realize upon any collateral security. (e) Unauthorized Distributions Held in Trust. The Holder hereby ---------------------------------------- agrees that, in the event any payment or distribution of any character, whether in cash, securities or other property, is received by the Holder in contravention of the terms of subordination set forth in this Section 3, such payment or distribution shall be held by the Holder, as trustee of an express trust, in trust for the benefit of, and shall be paid over or delivered and transferred to the Senior Lender, for application to all amounts due under the Institutional Debt remaining unpaid until such amounts shall have been paid in full. The Holder hereby assigns to the Senior Lender all rights of the Holder to any such payments or distributions, which the Senior Lender may exercise in the name of the Payee, and agree to execute such instruments as may be required by the Senior Lender to enable the Senior Lender to enforce such claims. (f) Notation of Subordination. The Holder agrees to note on the face ------------------------- of any promissory note or other instrument issued by the Company evidencing the indebtedness under this Note that such promissory note or other instrument is subject to the terms and conditions set forth herein. (g) Rights of Senior Lender or other Holder of Institutional Debt ------------------------------------------------------------- Regarding Company. This Section 3 is a continuing agreement of subordination and - ----------------- the Senior Lender or any other holder of Institutional Debt may continue to make loans to or otherwise accept the obligations of the Company in reliance hereon, without notice to the Holder, and may make renewals, extensions or other modifications of any kind relating to the terms and conditions of any of the Institutional Debt or any collateral security or guaranty therefor, and may release or exchange or otherwise deal with any collateral security or guaranty or may release any balance of funds on deposit or otherwise held by the Senior Lender without notice to or consent of the Holder and without impairing or affecting the rights hereunder of Senior Lender or any other holder of the Institutional Debt. (h) Intended Third-Party Beneficiaries. The Senior Lender and any ---------------------------------- other holder of the Institutional Debt is the intended third party beneficiary of Section 3 of this Note and each other provision of this Note which refers to or relates to the Institutional Debt. 4 4. Miscellaneous. ------------- (a) Usury. Nothing herein contained, nor any transaction related ----- hereto, shall be construed or so operate as to require the Company to pay interest at a greater rate than is now lawful, or to make any payment, or to do any act contrary to law. (b) Ownership. The Holder shall be deemed to be the owner of this --------- Note for all purposes, and the full payment of the Holder's Fee and principal under this Note to the Holder shall constitute the full and complete discharge of the Company for such purposes. (c) Assignment. This Note and the rights, obligations and duties of ---------- the Company or the Holder hereunder shall not be assignable or otherwise transferable by either party; provided, however, that in the event that Company is acquired by another entity and becomes a wholly-owned subsidiary of that entity, then all references herein to Company shall also be applicable to its shareholder and such shareholder shall be bound by the terms hereof as if it were the Company. (d) Modification. No term or provision contained herein may be ------------ modified, amended or waived except by written agreement or consent signed by the party to be bound thereby. Notwithstanding the foregoing, without the prior written consent of Senior Lender : (i) this Note shall not be materially modified, amended or otherwise changed; and (ii) Section 6 of this Note and each other provision of this Note which specifically refers to or relates to the Institutional Debt shall not be modified, amended, otherwise changed or waived. (e) Binding Effect and Benefit. This Note shall inure to the benefit -------------------------- of, and shall be binding upon, the parties hereto, their heirs, executors, administrators, personal representatives, successors in interest and permitted assigns. (f) Further Assurances. Company and Holder agree that from time to ------------------ time hereafter, upon request, each party will, at such party's sole expense, execute and deliver such other instruments and documents and take such further action as may be reasonably necessary to carry out the intent of this Note. (g) Governing Law; Waiver of Jury Trial. This Note shall be ----------------------------------- interpreted, and the rights and liabilities of the parties hereto determined, in accordance with the internal laws (as opposed to conflicts of law provisions) of the State of Delaware. As part of the consideration for new value this day received, the Holder hereby consents to the jurisdiction of any state or federal court located within Wilmington, Delaware. Each of the Company and the Holder hereby irrevocably and unconditionally waives trial by jury in any suit or proceeding arising out of or related to this Note. (h) Incorporation by Reference. All exhibits and documents referred -------------------------- to in this Note shall be deemed incorporated herein by any reference thereto as if fully set out herein. 5 (i) Headings and Captions. Subject headings and captions are included --------------------- for convenience purposes only and shall not affect the interpretation of this agreement. (j) Notice. All notices, requests, demands and other communications ------ permitted or required hereunder shall be in writing, and either (i) delivered in person, (ii) sent by express mail or other overnight delivery service providing receipt of delivery, (iii) mailed by certified or registered mail, postage prepaid, return receipt requested or (iv) sent by telex, telegraph or other facsimile transmission as follows: If to Company addressed or Access Worldwide Communications, Inc. delivered in person to: 4950 Communications Avenue, Suite 300 Boca Raton, Florida 33431 Attention: Mark Wright Phone: 561-226-5000 Fax: 800-569-1587 If to the Holder, ------------------------------------- addressed or delivered ------------------------------------- in person to: ------------------------------------- ------------------------------------- or to such other address as either party may designate by notice in accordance with this Section. Any such notice or communication, if given or made by prepaid, registered or certified mail or by recorded express delivery, shall be deemed to have been made when actually received. (k) Severability. If any portion of this Note is held invalid, ------------ illegal or unenforceable, such determination shall not impair the enforceability of the remaining terms and provisions herein, which may remain effective, and to this end this Note is declared to be severable. (l) Waiver. No waiver of a default, breach or other violation of any ------ provision of this Note shall operate or be construed as a waiver of any subsequent default, breach or other violation or limit or restrict any right or remedy otherwise available. No delay or omission on the part of the Holder to exercise any right or power arising by reason of a default shall impair any such right or power or prevent its exercise at any time during the continuance thereof. (m) Gender and Pronouns. Throughout this agreement, the masculine ------------------- shall include the feminine and neuter and the singular shall include the plural and vice versa as the context requires. 6 (n) Entire Agreement. This Note constitutes the entire agreement of ---------------- the parties and supersedes any and all other prior agreements, oral or written, with respect to the subject matter contained herein. [SIGNATURES ON FOLLOWING PAGE] 7 [SIGNATURE PAGE TO PROMISSORY NOTE] IN WITNESS WHEREOF, the Company has signed and sealed this Note on this 12th day of June, 2006. ACCESS WORLDWIDE COMMUNICATIONS, INC. By: ---------------------------------- Shawkat Raslan Chairman and Chief Executive Officer 8 EX-99.2 3 aw6137ex992.txt EXHIBIT 99.2 Exhibit 99.2 THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR UNDER ANY APPLICABLE STATE SECURITIES LAW AND MAY NOT BE TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION STATEMENT IS NOT REQUIRED UNDER THE SECURITIES ACT AND THE RULES AND REGULATIONS PROMULGATED THEREUNDER OR UNDER APPLICABLE STATE SECURITIES LAWS. WARRANT CERTIFICATE ------------------- To Purchase 200,000 Shares of Common Stock of: ACCESS WORLDWIDE COMMUNICATIONS, INC. JUNE 12, 2006 THIS IS TO CERTIFY THAT, for value received, Charles Henri Weil (the "Holder") is entitled to purchase from Access Worldwide Communications, Inc., a Delaware corporation (the "Company"), two hundred thousand (200,000) shares of the Company's common stock, par value $0.01 per share (the "Common Stock"), on the terms and conditions hereinafter set forth. I. Grant of Warrant ---------------- 1.1 Grant and Vesting. The Company hereby grants to the Holder a warrant ----------------- to purchase up to 200,000 shares of Common Stock (this "Warrant"), as adjusted as provided herein, at a purchase price equal to $0.01 per share of Common Stock (the "Exercise Price"). This Warrant shall vest (the "Vesting Date") as to all 200,000 shares of Common Stock on the Effective Date, as such date is defined in that certain Subordinated Promissory Note, payable by the Company to Holder dated as of the date hereof (the "Note"). The shares of Common Stock, or other securities for which this Warrant may be exercised as a result of transactions contemplated by Article II, are referred to as the "Warrant Shares." 1.2 Exercise Period. This Warrant shall be exercisable commencing on the --------------- Vesting Date and continue to be exercisable until 5:00 p.m., Eastern Standard Time, on the date that is ten (10) years from the Vesting Date (the "Exercise Period"). 1.3 Shares To Be Issued; Reservation of Shares. The Company covenants and ------------------------------------------ agrees that (a) all of the securities issuable upon the exercise of this Warrant in accordance with the terms hereof will, upon issuance in accordance with the terms hereof and payment of the Exercise Price therefore, be duly authorized, validly issued and outstanding, fully paid and non-assessable shares of Common Stock, and (b) the Company will cause during the Exercise Period, there to be authorized and reserved a sufficient number of shares of Common Stock to provide for the exercise of this Warrant in full. II. Adjustments to Warrant ---------------------- 2.1 Stock Splits and Combinations. If the Company shall combine all of ----------------------------- its outstanding shares of Common Stock into a smaller number of shares, the number of Warrant Shares purchaseable under this Warrant shall be proportionately decreased, as of the effective date of such combination, so that the Holder of this Warrant, if exercised on or after that date, shall be entitled to receive the number and kind of Warrant Shares which the Holder of this Warrant would have owned and been entitled to receive as a result of the combination had the Warrant been exercised immediately prior to that date. If the Company shall subdivide all of its outstanding shares of Common Stock, the number of Warrant Shares purchasable under the Warrant shall be proportionally increased as of the effective date of such subdivision so that the Holder of this Warrant, if exercised on or after that date, shall be entitled to receive the number and kind of Warrant Shares which the Holder of this Warrant would have owned and been entitled to receive as a result of the subdivision had the Warrant been exercised immediately prior to that date. 2.2 Stock Dividends and Distributions. If the Company shall fix a record --------------------------------- date for the holders of its Common Stock entitled to receive a dividend or other distribution payable in additional shares of Common Stock, then the number of Warrant Shares purchaseable under this Warrant shall be proportionately increased as of the time of such issuance, or in the event such record date is fixed, as of the close of business on such record date so that the Holder of this Warrant, if exercised after that date, shall be entitled to receive the number and kind of Warrant Shares and additional shares of Common Stock of the Company which the Holder of this Warrant would have owned and been entitled to receive as a result of the dividend or distribution had the Warrant been exercised immediately prior to that date. 2.3 Other Dividends and Distributions. If the Company shall fix a record --------------------------------- date for the holders of Common Stock entitled to receive a dividend or other distribution payable in securities of the Company other than shares of Common Stock, then lawful and adequate provision shall be made so that the Holder of this Warrant shall be entitled to receive upon exercise of this Warrant, in addition to the number of Warrant Shares immediately theretofore issuable upon exercise of this Warrant, the kind and number of securities of the Company which the Holder would have owned and been entitled to receive had this Warrant been exercised immediately prior to that date. 2.4 Reclassification, Exchange and Substitution. If the Common Stock is ------------------------------------------- changed into the same or a different number of shares of any class or classes of stock, whether by recapitalization, reclassification or otherwise (other than by a subdivision or combination of shares or stock dividend or a reorganization, merger, consolidation or sale of assets provided for elsewhere in this Article II), then the Holder of this Warrant shall be entitled to receive upon exercise of this Warrant, in lieu of the Warrant Shares immediately theretofore issuable upon exercise of this Warrant, the kind and amount of stock and other securities and property receivable upon such recapitalization, reclassification or other change, by the holders of the number of shares of Common Stock for which the Warrant could have been exercised immediately prior to such recapitalization, reclassification or other change (in any event, subject to further anti-dilution protection as provided in this Article II). 2 2.5 Reorganizations, Mergers, Consolidations or Sales of Assets. If any ------------------------------------------------------------ of the following transactions (each, a "Special Transaction") shall become effective: (a) a capital reorganization, share exchange or exchange offer (other than a recapitalization, subdivision, combination, reclassification or exchange of shares provided for elsewhere in this Article II), (b) a consolidation or merger of the Company with and into another entity, or (c) a sale or conveyance of all or substantially all of the Company's assets, then as a condition of any Special Transaction, lawful and adequate provision shall be made so that the Holder of the Warrant shall thereafter have the right to purchase and receive upon exercise of this Warrant, in lieu of the Warrant Shares immediately theretofore issuable upon exercise of this Warrant, other securities, cash or other assets as may be issued or payable in and pursuant to the terms of such Special Transaction to the holders of shares for which this Warrant could have been exercised immediately prior to such Special Transaction. 2.6 Liquidation. If the Company shall, at any time prior to the end of ----------- the Exercise Period, dissolve, liquidate or wind up its affairs, the Holder shall have the right, but not the obligation, to exercise this Warrant. Upon such exercise, the Holder shall have the right to receive, in lieu of the shares of Common Stock that the Holder otherwise would have been entitled to receive upon such exercise, the same kind and amount of assets as would have been issued, distributed or paid to the Holder upon any such dissolution, liquidation or winding up with respect to such shares of Common Stock had the Holder been the holder of record of such shares of Common Stock receivable upon exercise of this Warrant on the date for determining those entitled to receive any such distribution. 2.7 Notice. Whenever this Warrant or the number of Warrant Shares is to ------ be adjusted as provided herein, the Company shall forthwith as soon as reasonably practicable, cause to be sent to the Holder a notice stating in reasonable detail the relevant facts and any resulting adjustments and the calculation thereof. 2.8 Fractional Interests. The Company shall not be required to issue -------------------- fractions of shares of Common Stock upon the exercise of this Warrant. If any fraction of a share of Common Stock would be issuable upon the exercise of this Warrant, the Company shall, upon such issuance, purchase such fraction for an amount in cash equal to the current value of such fraction, computed on the basis of the last reported closing price of the Common Stock on the securities exchange or quotation system on which the shares of Common Stock are then listed or traded, as the case may be, if any, on the last business day prior to the date of exercise upon which such a sale shall have been effected, or, if the Common Stock is not so listed or traded on an exchange or quotation system, as the Board of Directors of the Company may in good faith determine. 3 2.9 Effect of Alternate Securities. If at any time, as a result of an ------------------------------ adjustment made pursuant to this Article II, the Holder of this Warrant shall thereafter become entitled to receive any securities of the Company other than shares of Common Stock, then the number of such other securities receivable upon exercise of this Warrant shall be subject to adjustment from time to time on terms as nearly equivalent as practicable to the provisions with respect to shares of Common Stock contained in this Article II. 2.10 Successive Application. The provisions of this Article II shall apply ---------------------- from time to time to successive events covered by this Article II. Upon the occurrence of any event contemplated by this Article II, all references to Common Stock, to the Company and to other defined terms shall be equitably adjusted to protect the interests of the Holder. III. Exercise -------- 3.1 Exercise of Warrant. ------------------- (a) The Holder may exercise this Warrant by (i) surrendering this Warrant Certificate with the form of exercise notice attached hereto as Exhibit "A" duly executed by the Holder, and (ii) making payment to the Company of the aggregate Exercise Price for the applicable Warrant Shares in cash or by certified check or wire transfer of immediately available funds to an account designated by the Company. Upon any partial exercise of this Warrant, the Company shall issue to the Holder, for its surrendered Warrant Certificate, a replacement Warrant Certificate identical in all respects to this Warrant Certificate, except that the number of Warrant Shares shall be reduced accordingly. (b) Each person in whose name any Warrant Share certificate is issued upon exercise of this Warrant shall for all purposes be deemed to have become the holder of record of the Warrant Shares for which this Warrant was exercised as of the date of exercise. Certificates for the Warrant Shares so purchased, representing the aggregate number of shares specified in the form of exercise notice, shall be delivered to the holder hereof within a reasonable time. 3.2 Issuance of Warrant Shares. The Warrant Shares purchased shall be -------------------------- issued to the Holder exercising this Warrant as of the close of business on the business day on which all actions and payments required to be taken or made by the Holder hereunder shall have been so taken or made. Certificates for the Warrant Shares so purchased shall be delivered to the Holder as soon as reasonably practicable after this Warrant is so exercised. 4 IV. Rights of the Holder -------------------- Except as provided herein, the Holder shall not, solely by virtue of this Warrant and prior to the issuance of the Warrant Shares upon due exercise hereof, be entitled to any rights as a shareholder of the Company. No provision of this Warrant, in the absence of affirmative action by the holder hereof to purchase Warrant Shares, and no mere enumeration herein of the rights or privileges of the holder hereof, shall give rise to any liability of such holder for the Exercise Price or as a shareholder of the Company, whether such liability is asserted by the Company or by creditors of the Company. V. Loss ---- Upon receipt by the Company of evidence reasonably satisfactory to it of the loss, theft, destruction or mutilation of this Warrant, and (in the case of loss, theft or destruction) reasonably satisfactory indemnification, and upon surrender and cancellation of this Warrant, if mutilated, the Company shall immediately execute and deliver a new Warrant of like tenor and date. VI. Representations of the Holder ----------------------------- The Holder further understands that the Holder of this Warrant represents to the Company that it is aware of the Company's business affairs and financial condition and has acquired sufficient information about the Company to reach an informed and knowledgeable decision to acquire this Warrant and the shares issuable upon exercise of this Warrant. The holder of this Warrant further represents that it is acquiring this Warrant and the right to acquire the shares issuable upon exercise of this Warrant for investment purposes only, for its own account only and not with a view to, or for resale in connection with, any "distribution" thereof within the meaning of the Securities Act. The holder of this Note acknowledges and understands that the shares issuable upon conversion of this Note will constitute "restricted securities" under the Securities Act and will not have been registered under the Securities Act in reliance upon a specific exemption therefrom, which exemption depends upon, among other things, the bona fide nature of the holder's investment intent as expressed herein. The certificates representing the Warrant Shares shall bear a legend substantially similar to the following: "The securities represented by this certificate have not been registered under the Securities Act of 1933, as amended (the "Act") or under applicable state securities laws, and may not be offered or sold except (1) pursuant to an effective registration statement under the Act or (2) upon the delivery by the holder to the Company of an opinion of counsel reasonably satisfactory to the Company that such registration statement is not required under the Securities Act and the rules and regulations promulgated thereunder or under applicable state securities laws." 5 VII. Registration Rights ------------------- Within thirty (30) days of the date that is one year after the Vesting Date, or as soon as practicable thereafter, the Company shall cause to be prepared and filed with the Securities and Exchange Commission (the "Commission"), and cause to become effective no later than sixty (60) days after the date of filing, or as soon as practicable thereafter, (the "Effective Date"), a registration statement on Form S-1 (or such other available registration statement form that is eligible for use) (as may be amended from time to time, the "Registration Statement") and such other documents, as may be necessary, in the opinion of counsel for the Company, so as to permit a public offering and sale by the Holder of the Warrant Shares under the Securities Act. Notwithstanding the foregoing to the contrary, the Company shall not be required to file the Registration Statement within thirty (30) days of the date the Company is required to file its annual report on Form 10-K with the Securities and Exchange Commission. All expenses incurred in connection with the registration of the Warrant Shares, including without limitation, all blue sky registration and filing fees, legal fees, accounting fees, printing expenses, other expenses and fees of experts used in connection with such registration and any fees and expenses incidental to any post-effective amendment to the Registration Statement, shall be borne and paid by the Company, excluding Holder's legal fees relating to the Warrants and commissions related to sales of the Warrant Shares. The Company shall take all reasonable efforts to keep such registration effective for a period of not less than two (2) years after the Effective Date, and shall take all reasonable efforts to cause the Warrant Shares at all times during such period to be freely tradable under the Registration Statement, except as may be required under the Federal Securities laws, and shall take such other actions as may be necessary or advisable to enable the Holder to consummate the public sale of the Warrant Shares by the Holder under the Registration Statement. VIII. Miscellaneous ------------- 8.1 Assignment. This Warrant and the rights, obligations and duties of ---------- the Company or the Holders hereunder shall not be assignable or otherwise transferable by either party; provided, however, that in the event that Company is acquired by another entity and becomes a wholly-owned subsidiary of that entity, then all references herein to Company shall also be applicable to its stockholder and such stockholder shall be bound by the terms hereof as if it were the Company. 8.2 Modification. No term or provision contained herein may be modified, ------------ amended or waived except by written agreement or consent signed by the party to be bound thereby. 8.3 Binding Effect and Benefit. This Warrant shall inure to the benefit -------------------------- of, and shall be binding upon, the parties hereto, their heirs, executors, administrators, personal representatives, successors in interest and permitted assigns. 6 8.4 Further Assurances. Company and Holder agree that from time to time ------------------ hereafter, upon request, each party will, at such party's sole expense, execute and deliver such other instruments and documents and take such further action as may be reasonably necessary to carry out the intent of this Warrant. 8.5 Governing Law; Waiver of Jury Trial. This Warrant shall be ----------------------------------- interpreted, and the rights and liabilities of the parties hereto determined, in accordance with the internal laws (as opposed to conflicts of law provisions) of the State of Delaware. As part of the consideration for new value this day received, the Holder hereby consents to the jurisdiction of any state or federal court located within Wilmington, Delaware. Each of the Company and the Holder hereby irrevocably and unconditionally waives trial by jury in any suit or proceeding arising out of or related to this Warrant. 8.6 Incorporation by Reference. All exhibits and documents referred to in -------------------------- this Warrant shall be deemed incorporated herein by any reference thereto as if fully set out herein. 8.7 Headings and Captions. Subject headings and captions are included for --------------------- convenience purposes only and shall not affect the interpretation of this agreement. 8.8 Notice. All notices, requests, demands and other communications ------ permitted or required hereunder shall be in writing, and either (i) delivered in person, (ii) sent by express mail or other overnight delivery service providing receipt of delivery, (iii) mailed by certified or registered mail, postage prepaid, return receipt requested or (iv) sent by telex, telegraph or other facsimile transmission as follows: If to Company addressed or Access Worldwide Communications, Inc. delivered in person to: 4950 Communications Avenue, Suite 300 Boca Raton, Florida 33431 Attention: Mark Wright Fax: 800-569-1587 If to the Holder, ------------------------------------- addressed or delivered ------------------------------------- in person to: ------------------------------------- ------------------------------------- or to such other address as either party may designate by notice in accordance with this Section. Any such notice or communication, if given or made by prepaid, registered or certified mail or by recorded express delivery, shall be deemed to have been made when actually received. 8.9 Severability. If any portion of this Warrant is held invalid, illegal ------------ or unenforceable, such determination shall not impair the enforceability of the remaining terms and provisions herein, which may remain effective, and to this end this Warrant is declared to be severable. 7 8.10 Waiver. No waiver of a default, breach or other violation of any ------ provision of this Warrant shall operate or be construed as a waiver of any subsequent default, breach or other violation or limit or restrict any right or remedy otherwise available. No delay or omission on the part of the Holder to exercise any right or power arising by reason of a default shall impair any such right or power or prevent its exercise at any time during the continuance thereof. 8.11 Gender and Pronouns. Throughout this Warrant, the masculine shall ------------------- include the feminine and neuter and the singular shall include the plural and vice versa as the context requires. 8.12 Entire Agreement. This Warrant constitutes the entire agreement of ---------------- the parties and supersedes any and all other prior agreements, oral or written, with respect to the subject matter contained herein. [SIGNATURES ON FOLLOWING PAGE] 8 IN WITNESS WHEREOF, the Company has caused this Warrant to be duly executed and delivered as of the 12th day of June, 2006 ACCESS WORLDWIDE COMMUNICATIONS, INC. By: ------------------------------------- Shawkat Raslan Chairman and Chief Executive Officer 9 EXHIBIT A EXERCISE NOTICE [To be executed only upon exercise of Warrant] The undersigned registered owner of this Warrant irrevocably exercises this Warrant for the purchase of the number of shares of Common Stock of Access Worldwide Communications, Inc. as is set forth below, and herewith makes payment therefor, all at the price and on the terms and conditions specified in the attached Warrant Certificate and requests that certificates for the shares of Common Stock hereby purchased (and any securities or other property issuable upon such exercise) be issued in the name of and delivered to the person specified below whose address is set forth below, and, if such shares of Common Stock shall not include all of the shares of Common Stock now and hereafter issuable as provided in the attached Warrant Certificate, then Access Worldwide Communications, Inc. shall, at its own expense, promptly issue to the undersigned a new Warrant Certificate of like tenor and date for the balance of the shares of Common Stock issuable thereunder. Date: --------------------------------------------------------------------------- Amount of Shares Purchased: ----------------------------------------------------- Aggregate Purchase Price: $ ---------------------------------------------------- Printed Name of Registered Holder: ---------------------------------------------- Signature of Registered Holder: ------------------------------------------------- NOTICE: The signature on this Exercise Notice must correspond with the name as written upon the face of the attached Warrant Certificate in every particular, without alteration or enlargement or any change whatsoever. Stock Certificates to be issued and registered in the following name, and delivered to the following address: ------------------------------------------------ (Name) ------------------------------------------------ (Street Address) ------------------------------------------------ (City) (State) (Zip Code) 10 EX-99.3 4 aw6137ex993.txt EXHIBIT 99.3 Exhibit 99.3 SUBORDINATION AGREEMENT THIS SUBORDINATION AGREEMENT (this "Agreement") is made and entered into this ____ day of June, 2006, between Charles H. Weil, 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. ----------- (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. -------------------------------------- (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. 2 (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 ----------------------------------- 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 -------- 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. 3 5. Representations and Warranties of Company and the Creditor. Each of ---------------------------------------------------------- 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. 4 (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. 5 6. Covenants. Until full performance and indefeasible and irrevocable --------- 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; 6 (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. ------------------------------------------ (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. 7 8. Insolvency Proceedings. If there shall occur any receivership, ---------------------- 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 -------- 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 ----------------------------------------- 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. 8 11. No Third Party Beneficiary; Subrogation. This Agreement is not --------------------------------------- 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 ------------------- 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. ------ (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. 9 (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 ---------------- 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, --------- 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 ------- 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 --------------------------------------------------------- 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 --------------------------------------------------- (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 4445 Willard Avenue, 12th Floor Chevy Chase, MD 20815 Attention: Healthcare Finance Group, Portfolio Manager Telephone: (301) 841-2796 Fax: (301) 841-2340 COMPANY: - ------- ACCESS WORLDWIDE COMMUNICATIONS, INC. By: ------------------------------------- Title: ------------------------------------- Telephone: ------------------------------------- Fax: ------------------------------------- E-MAIL: ------------------------------------- CREDITOR: - -------- - ------------------------------------------------ Charles H. Weil Address: ------------------------------------- Telephone: ------------------------------------- Fax: ------------------------------------- E-MAIL: ------------------------------------- 14 Exhibit A --------- Subordinated Note ----------------- See Attached 15 -----END PRIVACY-ENHANCED MESSAGE-----