EXHIBIT 10(ll)
WARRANT ESCROW AGREEMENT
This Warrant Escrow Agreement (this "Agreement"), dated as of
April 3, 2001, by and among ACCESS WORLDWIDE COMMUNICATIONS, INC., a Delaware
corporation (the "Company"), the lenders identified on the signature pages
hereto (collectively, the "Lenders"), BANK OF AMERICA, N.A., successor to
NationsBank, N.A., as agent for the Lenders (in such capacity, the "Agent"), and
INVESTORS TITLE ACCOMMODATION CORPORATION, as escrow agent (the "Escrow Agent").
All capitalized terms not defined herein shall have the meaning assigned to them
in the Credit Agreement (as defined below).
SECTION 1. Deposit. Pursuant to the terms of the Fourth
Amendment and Waiver Agreement, dated as of April 3, 2001, among the Company,
the Guarantors listed on the signature pages thereof, the Lenders and the Agent
(the "Fourth Amendment and Waiver Agreement"), concurrently with the execution
of the Fourth Amendment and Waiver Agreement, the Company shall deliver a
warrant (the "Warrant") initially to purchase 1,510,909 shares (the "Warrant
Shares") of its Common Stock, par value $0.01 per share (the "Common Stock"), to
the Escrow Agent for deposit in a designated account (the Warrant while held by
the Escrow Agent pursuant to this Agreement, the "Escrow Property"). The Escrow
Agent hereby agrees that upon receipt thereof, such Escrow Property shall be
released from escrow hereunder only in conformity with, and upon the terms and
conditions set forth in, this Agreement.
SECTION 2. Release from Escrow. (a) The Escrow Agent shall
release the Warrant to the Agent in the amount indicated in the Release
Certificate (as defined below) upon the earlier of (i) March 31, 2002 and (ii)
the request of the Agent to the Company upon the occurrence of a Put Event (as
defined in Section 9 of the Warrant). Notwithstanding the foregoing, if there
are no then existing Defaults or Events of Default under the Credit Agreement
dated as of March 12, 1999 among the Company, certain Guarantors named on the
signature pages thereto, the Lenders and the Agent, as amended (the "Credit
Agreement"), on or before the following dates, the aggregate amount of the
Warrant Shares indicated in the Warrant shall be reduced as follows: (x) to the
extent the Company makes voluntary partial prepayments of the Term Loan pursuant
to the terms contained in the Credit Agreement on or before March 31, 2002 which
exceed $5,000,000 in the aggregate, the aggregate number of Warrant Shares would
be reduced on a pro rata basis by the ratio of (1) the aggregate amount of such
prepayments of the Term Loan prior to March 31, 2002 to (2) the total
outstanding indebtedness of the Company under the Credit Agreement prior to the
application of such prepayments, and (y) if on or before March 31, 2002, the sum
of (I) the outstanding principal balance of the Term Loan plus (II) the
Aggregate Revolving Committed Amount is reduced to an amount equal to or less
than $13,920,625, the aggregate number of Warrant Shares shall be reduced to
zero.
(b) The Escrow Agent shall not release any Escrow Property
unless it shall have received a certificate substantially in the form of Exhibit
A hereto (the "Release Certificate") which shall provide in reasonable detail
instructions as to the delivery of the Escrow Property. To the extent that the
certificate representing the Warrant is to be registered in names and/or
denominations other than those set forth on the certificate(s) constituting the
Escrow Property, the Release Certificate shall provide such information. If
necessary, the Escrow Agent
shall present such certificate(s) and information to the Company for
registration of transfer or exchange and shall deliver such Warrant in
accordance with the terms of the Release Certificate.
SECTION 3. Compensation and Reimbursement of Escrow Agent. The
Company shall pay to the Escrow Agent such fees and expenses as shall be agreed
upon in writing between them on or before the date hereof.
SECTION 4. Responsibilities of the Escrow Agent. (a) The
Escrow Agent shall be obligated to perform only such duties as are expressly set
forth in this Agreement. No implied covenants or obligations shall be inferred
from this Agreement against the Escrow Agent, nor shall the Escrow Agent be
bound by the provisions of any agreement of the Company or the Lenders beyond
the specific terms hereof.
(b) The Escrow Agent shall not be liable hereunder except for
its own gross negligence, bad faith or willful misconduct and the Company and
the Lenders agree to indemnify the Escrow Agent for and hold it harmless as to
any loss, liability or expenses, including attorney fees, incurred without gross
negligence, bad faith or willful misconduct on the part of the Escrow Agent and
arising out of or in connection with the Escrow Agent's duties under this
Agreement. In no event shall the Escrow Agent be liable (i) for acting in good
faith, without gross negligence, bad faith or willful misconduct, in accordance
with instructions from the Company and/or the Lenders or any of their agents,
(ii) for incidental, indirect, special or consequential damages, (iii) for the
acts or omissions of its nominees, correspondents, designees, sub-agents or
sub-custodians that do not constitute gross negligence, bad faith or willful
misconduct or (iv) for any amount in excess of the value of the Escrow Property.
(c) The Escrow Agent shall (in the absence of bad faith, gross
negligence or willful misconduct) be entitled to rely upon any order, judgment,
certification, instruction, notice, opinion or other writing delivered to it in
compliance with the provisions of this Agreement without being required to
determine the authenticity or the correctness of any fact stated therein or the
propriety or validity of service thereof or such court's jurisdiction in the
matter. The Escrow Agent may (in the absence of bad faith, gross negligence or
willful misconduct) act in reliance upon any instrument comporting with the
provisions of this Agreement or signature believed by it to be genuine and
assume that any person purporting to give notice or receipt or advice or make
any statement or execute any document in connection with the provisions hereof
has been duly authorized to do so.
The Escrow Agent may at any time request in writing written
instructions from the Company and the Agent, and may at its option include in
such request the course of action it proposes to take, and the date on which it
proposes to act, regarding any matter arising in connection with its duties and
obligations hereunder. The Escrow Agent shall not be liable for acting without
the consent of the Company and the Agent in accordance with such a proposal on
or after the date specified therein, provided that the specified date shall be
at least five Business Days after the Company and the Agent receive the Escrow
Agent's request for instructions and its proposed course of action, and
provided further that, prior to so acting, the Escrow Agent has not received
the written instructions requested or other written instructions signed by the
Company and the Agent not inconsistent with the terms of this Agreement. The
Agent, the
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Escrow Agent and the Company shall send copies of all such written
correspondence received or sent by such party to the other parties hereto.
(d) The Escrow Agent shall not be obligated to take any legal
action or commence any proceeding in connection with the Escrow Property, any
account in which Escrow Property is deposited or this Agreement, or to prosecute
or defend any such legal action or proceeding brought by persons not a party to
this Agreement. The Escrow Agent may act in accordance with advice of counsel
chosen by it with respect to any matter relating to this Agreement and shall not
be liable and shall be fully indemnified for any liability whatsoever for any
action taken or omitted to be taken in good faith in accordance with such
written advice. The Company shall promptly pay, upon demand, the reasonable fees
and expenses of any such counsel.
(e) The Escrow Agent does not have any interest in the Escrow
Property deposited hereunder but is serving as escrow holder only and has only
possession thereof.
(f) The Escrow Agent makes no representation as to the
validity, value, genuineness or collectability of any security or other document
or instrument held by or delivered to it by the Company or the Agent.
(g) The Escrow Agent shall not be called upon to advise any
party as to selling or retaining, or taking or refraining from taking any action
with respect to, any securities or other property deposited hereunder.
(h) In the event of any ambiguity in the provisions of this
Agreement or any dispute between or conflicting claims by or between any party
or any other person or entity with respect to any property deposited hereunder,
the Escrow Agent shall be entitled, at its sole option, to refuse to comply with
any and all claims, demands or instructions with respect to such property so
long as such dispute or conflict shall continue, and the Escrow Agent shall not
be or become liable in any way to the undersigned for its failure or refusal to
comply with such conflicting claims, demands or instructions. The Escrow Agent
shall be entitled to refuse to act until, at its sole option, either such
conflicting or adverse claims or demands shall have been finally determined by a
court of competent jurisdiction or settled by agreement between the conflicting
parties as evidenced in writing, satisfactory to the Escrow Agent or the Escrow
Agent shall have received security or an indemnity satisfactory to the Escrow
Agent sufficient to save the Escrow Agent harmless from and against any and all
loss, liability or expense which the Escrow Agent may incur by reason of its
acting. The Escrow Agent may in addition elect in its sole option to commence an
interpleader action or seek other judicial relief or orders as the Escrow Agent
may deem necessary.
(i) No provision of this Agreement shall require the Escrow
Agent to expend or risk its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder.
(j) The Escrow Agent shall not be required to invest any
amounts held as part of the Escrow Property.
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SECTION 5. Resignation and Removal of Escrow Agent. (a) The
Escrow Agent may resign at any time by giving at least 20 days written notice to
the Company and the Agent. Such resignation shall take effect upon the
appointment of a successor escrow agent as provided below. During such 20-day
period, the Company shall appoint a successor escrow agent that is reasonably
acceptable to Agent at which time the Escrow Agent shall hold such property or
funds, pending distribution, until all fees, costs and expenses or other
obligations owed to the Escrow Agent are paid. If a successor escrow agent has
not been appointed or has not accepted such appointment by the end of the 20-day
period, the Escrow Agent may apply to a court of competent jurisdiction for the
appointment of a successor escrow agent, or for other appropriate relief and the
costs, expenses and reasonable attorney's fees and expenses which the Escrow
Agent incurs in connection with such a proceeding shall be paid by the Company.
(b) The Company may remove the Escrow Agent upon 30 days'
written notice to the Escrow Agent and the Agent. Such removal shall take effect
upon delivery of the Escrow Property to a successor escrow agent designated in
writing by the Company that is reasonably acceptable to Agent, and the Escrow
Agent shall thereupon be discharged from all obligations under this Agreement
and shall have no further duties or responsibilities in connection herewith. The
Escrow Agent shall deliver the Escrow Property without unreasonable delay after
receiving notice from the Company of its designation of a successor escrow agent
and upon receipt of all fees and reimbursement for all costs and other expenses
or other obligations owed to the Escrow Agent.
(c) If after 45 days from the date of delivery of its written
notice of intent to resign or of the Company's notice of removal the Escrow
Agent has not received a written designation of a successor escrow agent, the
Escrow Agent's sole responsibility shall be to retain custody of the Escrow
Property, or to apply to a court of competent jurisdiction for appointment of a
successor escrow agent and after such appointment to have no further duties or
responsibilities in connection herewith.
(d) The provisions of Sections 2, 3, 4, 5 and 6 shall survive
termination of this Agreement and/or the resignation or removal of the Escrow
Agent.
(e) Upon the appointment of a successor escrow agent and the
acceptance of such appointment, such successor escrow agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Escrow Agent, and the retiring Escrow Agent shall be discharged
from its duties and obligations under this Agreement, but shall not be
discharged from any liability for actions taken as Escrow Agent hereunder prior
to such succession. After any retiring Escrow Agent's resignation or removal,
the provisions of this Agreement shall continue to inure to its benefit as to
any actions taken or omitted to be taken by it while it was Escrow Agent under
this Agreement.
SECTION 6. Choice of Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH
CAROLINA WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
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SECTION 7. Benefits and Assignment. Nothing in this Agreement,
expressed or implied, shall give or be construed to give any person, firm or
corporation, other than the parties hereto and their successors and assigns, any
legal claim under any covenant, condition or provision hereof, all the
covenants, conditions and provisions contained in this Agreement being for the
sole benefit of the parties hereto and their successors and assigns. No party
may assign any of its rights or obligations under this Agreement without the
written consent of all the other parties, which consent may be withheld in the
sole discretion of the party whose consent is sought.
SECTION 8. Amendment and Waiver. This Agreement may be
modified, waived, discharged or terminated only by a written amendment signed by
each of the parties hereto, and no waiver of any provision hereof shall be
effective unless expressed in a writing signed by the party to be charged. No
delay or omission by any party in exercising any right with respect to this
Agreement shall operate as a waiver. A waiver on any one occasion shall not be
construed as a bar to, or waiver of, any right or remedy on any future occasion.
SECTION 9. Headings. The headings contained in this
Agreement are for convenience of reference only and shall have no effect on
the interpretation or operation thereof.
SECTION 10. Notices. All notices, instructions, reports and
other written communications to be given or made under this Agreement shall be
deemed to have been validly given or made if, unless otherwise indicated,
delivered personally, by facsimile (receipt confirmed by telephone) or sent by
first-class mall, postage prepaid:
(a) To the Escrow Agent at:
Investors Title Accommodation Corporation
121 N. Columbia Street
Chapel Hill, NC 27514
Attn: Ms. Carol Hayden
Facsimile No.: (919) 968-2224
(b) To the Company at:
Access Worldwide Communications
4950 Blue Lake Drive, Suite 300
Boca Raton, FL 33431
Attn: Mr. Michael Dinkins
Facsimile No.: (800) 464-8599
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with a copy to:
Shapiro, Abrams & Zedeck
1776 North Pine Island Road, Suite 326
Fort Lauderdale, FL 33322
Attn: Kenneth W. Shapiro, Esq.
Facsimile No.: (954) 523-0997
(c) To the Agent at:
Bank of America, N.A.
8300 Greensboro Drive
Suite 800
McLean, VA 22102
Attn: Mr. James W. Harper
Facsimile No.: (703) 761-8559
with a copy to:
Moore & Van Allen, PLLC
100 North Tryon Street, Floor 47
Charlotte, NC 28202-4003
Attention: David L. Eades, Esq.
Telecopy No.: (704) 378-2044
(d) To the following Lenders at:
Fleet National Bank
502 Carnegie Center
Mail Stop: NJRP 44802B
Princeton, NJ 08543
Attn: Mr. Stephen Hill
Facsimile No.: (609) 799-9198
with a copy to:
FSC Corp.
c/o Bank Boston Capital
175 Federal Street - 10th Floor
Boston, MA 02210
Attn: Ms. Mary Josephs Reilly
Facsimile No.: (617) 434-1153
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ARK CLO 2000-1, Limited
c/o Patriarch Partners, LLC
40 Wall Street - 25th Floor
New York, NY 10005
Attn: Lynn Tilton/Dennis Dolan
Facsimile No.: (212) 825-2038
with a copy to:
Woodside Capital
36 Woodland Street
Hartford, CT 06105
Attn: Mr. Scott Schooley
Facsimile No.: (860) 547-1870
European American Bank
1 EAB Plaza
Uniondale, NY 11555
Attn: Mr. Michael Cipot
Facsimile No.: (516) 296-5613
SECTION 11. Severability. The invalidity, illegality or
unenforceability of any provision of this Agreement shall in no way affect the
validity, legality or enforceability of any other provision; and if any
provision is held to be unenforceable as a matter of law, the other provisions
shall not be affected thereby and shall remain in full force and effect.
SECTION 12. Entire Agreement. This Agreement shall constitute
the entire agreement of the parties with respect to the subject matter herein
and supersedes all prior oral or written agreements in regard thereto.
SECTION 13. Rights and Remedies. The rights and remedies
conferred upon the parties hereto shall be cumulative, and the exercise or
waiver of any such right or remedy shall not preclude or inhibit the exercise of
any additional rights or remedies. The waiver of any right or remedy shall not
preclude or inhibit the subsequent exercise of such right or remedy.
SECTION 14. Representations and Warranties. (a) The Company
hereby represents and warrants that this Agreement has been duly authorized,
executed and delivered on its behalf and constitutes the legal, valid and
binding obligation of the Company. The execution, delivery and performance of
this Agreement by the Company does not violate any applicable law or regulation
to which the Company is subject, except for such consents and approvals as have
been obtained and are in full force and effect.
(b) The Escrow Agent hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered on its behalf and
constitutes the legal, valid and binding obligation of the Escrow Agent. The
execution, delivery and performance of this Agreement by the Escrow Agent does
not violate any applicable law or regulation to which it is
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subject and does not require the consent of any governmental or other regulatory
body to which it is subject, except for such consents and approvals as have been
obtained and are in full force and effect.
(c) Each Lender hereby represents and warrants that this
Agreement has been duly authorized, executed and delivered on its behalf and
constitutes the legal, valid and binding obligation of such Lender. The
execution, delivery and performance of this Agreement by such Lender does not
violate any applicable law or regulation to which it is subject and does not
require the consent of any governmental or other regulatory body to which it is
subject, except for such consents and approvals as have been obtained and are in
full force and effect.
SECTION 15. Counterparts. This Agreement may be executed by
each of the parties hereto in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all such counterparts shall together constitute on and the same agreement.
SECTION 16. Termination. This Agreement shall terminate
automatically following (i) disbursement of all Escrow Property, (ii) the
reduction of the aggregate amount of the Warrant Shares to zero pursuant to
Section 2(a) or (iii) unless sooner terminated by agreement of the parties
hereto (in accordance with the terms hereof); provided, however, that the
obligations of the Company under Section 3 and Section 4(b) (and any existing
claims thereunder) shall survive termination of this Agreement and the
resignation or removal of the Escrow Agent; provided, further, that until such
disbursement, the Company will cause this Agreement (or any permitted successor
agreement) to remain in effect and will cause there to be an escrow agent
(including any permitted successor thereto) acting hereunder (or under any such
permitted successor agreement).
SECTION 17. Beneficial Ownership of Warrant Shares. The
parties hereto agree that the beneficial ownership of the Warrant Shares as of
the date hereof shall be as set forth on Exhibit B attached hereto.
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IN WITNESS WHEREOF, the parties have caused this Warrant
Escrow Agreement to be executed by duly authorized representatives as of the day
and year first written above.
COMPANY:
ACCESS WORLDWIDE COMMUNICATIONS, INC.
By:
----------------------------------------
Name:
Title:
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ESCROW AGENT:
INVESTORS TITLE ACCOMMODATION CORPORATION,
as Escrow Agent
By:
----------------------------------------
Name:
Title:
10
LENDERS
BANK OF AMERICA, N.A., successor to
NationsBank, N.A., individually in its
capacity as Lender and in its capacity
as Agent
By:
----------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By:
----------------------------------------
Name:
Title:
ARK CLO 2000-1, LIMITED
By: Patriarch Partners, LLC,
its Collateral Manager
By:
------------------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By:
-----------------------------------
Name:
Title:
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Exhibit A
Bank of America, N.A.
8300 Greensboro Drive
Suite 800
McLean, VA 22102
Attn: Mr. James W. Harper
, 2001
Investors Title Accommodation Corporation
121 N. Columbia Street
Chapel Hill, NC 27514
Attn: Ms. Carol Hayden
Ladies and Gentlemen:
Reference is made to the Warrant Escrow Agreement dated as of April 3,
2001 (the "Escrow Agreement") by and among Access Worldwide Communications,
Inc., a Delaware corporation (the "Company"), the Lenders set forth on the
signature pages thereto, Bank of America, N.A., as agent for such Lenders (the
"Agent"), and Investors Title Accommodation Corporation, as escrow agent.
Capitalized terms used herein but not defined shall have the meanings ascribed
to such terms in the Escrow Agreement.
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Pursuant to Section 2(b) of the Escrow Agreement, we hereby
instruct you to release a Warrant for a total of ________ Warrant Shares from
escrow and to deliver said Warrant to the Agent.
Very truly yours,
BANK OF AMERICA, N.A., in its capacity
as Agent
By:
--------------------------------------------
Name:
Title:
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Exhibit B
WARRANT FULLY-DILUTED
WARRANTS PERCENTAGE PERCENTAGE*
-------- ---------- -------------
Bank of America, N.A. 581,118.847 38.46153847% 4.62%
Ark CLO 2000-1, Limited 464,895.077 30.76923077% 3.68%
Fleet National Bank** 232,447.538 15.38461538% 1.85%
European American Bank 232,447.538 15.38461538% 1.85%
1,510,909 100% 12%
*Assumes outstanding 9,740,001 shares of common stock, full granting and
exercise of 1,300,000 options for common stock and 40,000 shares of preferred
stock.
**On April 3, 2001, Fleet National Bank has assigned its beneficial interests in
the Warrant to FSC Corp.
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