Exhibit 10.(eeeee)
GUARANTY
THIS GUARANTY
(this “Guaranty”
) is made as of May 18, 2006 by SHAWKAT RASLAN, residing at
977 King Street, Greenwich, CT 06831 (“ Guarantor
”), to and for the benefit of CAPITALSOURCE
FINANCE LLC , a Delaware limited liability company, for
itself as Lender and as agent to each and every Lender under the
Credit Agreement described below (“ Lender
”).
WHEREAS , Access Worldwide Communications, Inc., Ash
Creek, Inc., AWWC New Jersey Holdings, Inc., Telemanagement
Services, Inc. and TLM Holdings Corp. (individually and
collectively, the “Borrower” ) and Lender are
parties to that certain Revolving Credit, Term Loan and Security
Agreement, dated as of June 10, 2003 (as amended, supplemented
or modified from time to time, the “ Credit Agreement
”), pursuant to which Borrower has agreed to borrow from
Lender, and Lender has agreed to lend to Borrower, certain amounts
pursuant to the Revolving Facility and Term Loan (each as defined
in the Credit Agreement), all in accordance with and subject to the
terms and conditions set forth in the Credit Agreement, which
borrowings are evidenced by the Loan Documents (as defined in the
Credit Agreement);
WHEREAS , Borrower wishes to enter into a Sixth
Amendment to Revolving Credit, Term Loan and Security Agreement
with Lender (“Amendment”) pursuant to which Borrower is
requesting additional financing accommodations from
Lender;
WHEREAS , as a condition precedent to the obligation of
Lender to execute and deliver and perform under the Amendment and
the other Loan Documents and to make the Loans and Advances (each
as defined in the Credit Agreement) pursuant to the Amendment and
Credit Agreement, Guarantor is required, and has agreed, to execute
and deliver this Guaranty;
WHEREAS , Lender is willing to execute, deliver and
perform under the Amendment, Credit Agreement and the other Loan
Documents and to make the Loans and Advances available only upon
the condition that Guarantor execute and deliver to Lender this
Guaranty and that Guarantor agrees to perform and to comply with
his obligations under this Guaranty;
WHEREAS , Guarantor is the CEO of Access Worldwide
Communications, Inc. and a shareholder and will receive a direct
benefit from the making of the Loans to Borrower pursuant to the
Amendment.
NOW, THEREFORE
, in consideration of the foregoing
and of the covenants and agreements hereinafter set forth, the
receipt and sufficiency of which are hereby acknowledged, and as an
inducement for Lender to enter into the Amendment and the other
Loan Documents, Guarantor, intending to be legally bound hereby,
agrees as follows:
1. All capitalized terms used in
this Guaranty and not defined herein shall have the defined
meanings provided in the Credit Agreement. Whenever the context so
requires, each reference to gender includes the masculine and
feminine, the singular number includes the plural and vice versa.
The words “hereof” “herein” and
“hereunder” and words of similar import when used in
this Guaranty shall refer to this Guaranty as a whole and not to
any particular provision of this Guaranty, and references to
section, article, annex, schedule, exhibit and like references are
references to this Guaranty unless otherwise specified. A Default
or Event of Default shall “continue” or be
“continuing” until such Default or Event of Default has
been cured or waived by Lender. References in this Guaranty to any
Person shall include such Person and its successors and permitted
assigns.
2. Guarantor unconditionally and
absolutely guarantees (i) the due and punctual payment and
performance when due of the Obligations, including without
limitation, the principal of the Loans and Advances and the
interest thereon and any and all other monies and amounts due or
which may become due on or with respect to any of the foregoing,
and the due and punctual performance and observance by Borrower of
all of the other terms, covenants, agreements and conditions of the
Amendment and the other Loan Documents, in any case whether
according to the present terms thereof, at any earlier or
accelerated date or dates or pursuant to any extension of time or
to any change in the terms, covenants, agreements and conditions
thereof now or at any time hereafter made or granted, (ii) all
liabilities and obligations of Guarantor hereunder, and
(iii) all costs, expenses and liabilities (including, without
limitation, reasonable attorneys fees and expenses, documentation
and diligence fees and legal expenses, and search, audit,
recording, professional and filing fees and expenses) that may be
incurred or advanced by Lender in any way in connection with the
foregoing and/or otherwise required to be paid by Guarantor
hereunder (collectively, such items in clauses (i) through
(iii) being the “Guaranteed Obligations” ).
Guarantor acknowledges that this Guaranty shall be deemed a
continuing guaranty of the Guaranteed Obligations under the
Amendment and the other Loan Documents.
3. The obligations of Guarantor
hereunder shall not in any way be affected by the partial or
complete unenforceability or invalidity of any other guaranty or
surety agreement, pledge, assignment, Lien or other security
interest or security for any of the Guaranteed Obligations or of
the value, genuineness, validity or enforceability of the
Collateral or any of the Guaranteed Obligations.
4. Guarantor hereby represents and
warrants to Lender (which representations and warranties shall
survive the execution and delivery of this Guaranty and the making
of Loans and Advances under the Amendment and Credit Agreement)
that: (A) Guarantor is an individual citizen of the United
States residing at 977 King Street, Greenwich, CT 06831;
(B) Guarantor has all requisite power and authority and full
legal capacity to execute, deliver and perform this Guaranty and
other Loan Documents to which he is a party, and (ii) to
consummate the transactions contemplated hereunder and under the
other Loan Documents to which he is a party, and Guarantor is under
no legal restriction, limitation or disability that would prevent
Guarantor from doing any of the foregoing; (C) this Guaranty
and the other Loan Documents to which he is a party have been duly
executed and delivered by Guarantor and constitute the legal, valid
and binding obligation of Guarantor, enforceable against Guarantor
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); (D) the execution, delivery
and performance by Guarantor of this Guaranty and the other Loan
Documents to which he is a party and the consummation of the
transactions contemplated hereby and thereby have been duly and
validly authorized by all necessary actions on the part of
Guarantor (none of which actions have been modified or rescinded
and all of which are in full force and effect) and do not and will
not (1) 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 Guarantor or any
of his properties or assets, (2) 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 Guarantor is a party or by which Guarantor or
any of Guarantor’s properties or assets are bound or subject;
or (3) result in the creation or imposition of any Lien of any
nature whatsoever upon any of the properties or assets of
Guarantor, except those contemplated hereunder or under the other
Loan Documents; (E) Guarantor is not (1) a party or
subject to any judgment, order or decree or any agreement, document
or instrument or subject to any restriction, any of which do or
would adversely affect or prevent Guarantor’s ability to
execute or deliver, perform under, consummate the transactions
contemplated by, or
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observe the covenants and agreements contained
in, this Guaranty or the other Loan Documents to which he is a
party, or to pay the Guaranteed Obligations; or (2) 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 he is a party or by which he or any
of his 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 Material Adverse Change, 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 or Material Adverse Change;
(F) Guarantor is in compliance with all laws, statutes, rules,
regulations, ordinances and tariffs of any Governmental Authority
with respect or applicable to him and/or his assets and properties
and is not in violation of any order, judgment or decree of any
court or other Governmental Authority or arbitration board or
tribunal, in each case except where noncompliance or violation
could not reasonably be expected to have or result in a Material
Adverse Effect, and there is no event, fact, condition or
circumstance which, with notice or passage of time, or both, would
constitute or result in any noncompliance with, or any violation
of, any of the foregoing, in each case except where noncompliance
or violation could not reasonably be expected to have or result in
a Material Adverse Effect; (G) there is no action, suit,
proceeding or investigation pending or, to Guarantor’s
knowledge, threatened, before or by any court, arbitrator or
Governmental Authority (1) against or affecting the
Collateral, Guarantor, this Guaranty or the other Loan Documents to
which Guarantor is a party or the transactions contemplated hereby
or thereby, (2) that questions or could prevent the validity
of this Guaranty or the other Loan Documents to which Guarantor is
a party or the right or ability of Guarantor to execute or delivery
this Guaranty or such other documents or to consummate the
transactions contemplated hereby and thereby; (3) that could
reasonably be expected to have or result in, either individually or
in the aggregate, any Material Adverse Change or Material Adverse
Effect, or (4) that could reasonably be expected to result in
any Change of Control, nor is Guarantor aware that there is any
basis for the foregoing; (H) the execution, delivery and
performance of and consummation of the transactions contemplated by
this Guaranty and other Loan Documents to which Guarantor is a
party do not require any consent, approval or authorization of, or
filing, registration or qualification which has not been obtained
with, any Governmental Authority or any other Person;
(I) Guarantor is not a party to and has not entered into any
agreement, document or instrument that conflicts with this Guaranty
or that otherwise relates to the Guaranteed Obligations (other than
the Loan Documents to which he is a party); (J) the
obligations of Guarantor under this Guaranty are not subordinated
in any way to any other obligation of Guarantor or to the rights of
any other Person; (K) no representation or warranty made by
Guarantor in this Guaranty or in any other Loan Document contains
any untrue statement of material fact or omits to state any fact
necessary to make the statements herein or therein not materially
misleading, and there is no fact known to Guarantor which Guarantor
has not disclosed to Lender in writing which could reasonably be
expected to have or result in a Material Adverse Effect. The
foregoing representations and warranties are made with the
knowledge and intention that Lender is relying and will rely
thereon, and such representations and warranties shall survive the
execution and delivery of this Guaranty.
5. Guarantor hereby waives demand,
setoff, counterclaim, presentment, protest, notice of dishonor or
non-payment, as well as all defenses with respect to any and all
instruments, notice of acceptance hereof, notice of Loans or
Advances made, credit extended, collateral received or delivered,
or any other action taken by Lender in reliance hereon, and all
other demands and notices of any description, except such as are
expressly provided for herein, it being the intention hereof that
Guarantor shall remain liable as a principal until the full amount
of all Guaranteed Obligations shall have been indefeasibly paid in
full in cash and performed and satisfied in full and the Credit
Agreement terminated, notwithstanding any act, omission or anything
else which might otherwise operate as a legal or equitable
discharge of Guarantor. The pleading of any statute of limitations
as a defense to any demand against Guarantor hereunder and/or under
any other Loan Document is expressly waived by
Guarantor.
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6. Guarantor acknowledges and agrees
that its obligations as a Guarantor shall not be impaired,
modified, changed, released or limited in any manner whatsoever by
any impairment, modification, change, release or limitation of the
liability of Borrower or any other guarantor of the Guaranteed
Obligations or any other Person or its or their respective estates
in bankruptcy resulting from the operation of any present or future
provision of the bankruptcy laws or other similar statute, or from
the decision of any court.
7. Guarantor acknowledges and agrees
that Lender shall have the full right and power, in its sole
discretion and without any notice to or consent from Guarantor and
without affecting or discharging, in whole or in part, the
liability of Guarantor hereunder to deal in any manner with the
Guaranteed Obligations and any security or guaranties therefor,
including, without limitation, to (A) release, extend, renew,
accelerate, compromise or substitute and administer the Guaranteed
Obligations and other obligations under the Loan Documents in any
manner it sees fit, (B) release any or all collateral for the
Guaranteed Obligations, (C) release any guarantor of the
Guaranteed Obligations, (D) extend the time for payment of the
Guaranteed Obligations or any part thereof, (E) change the
interest rate on the Guaranteed Obligations under the Credit
Agreement, (F) reduce or increase the outstanding principal
amount of the Guaranteed Obligations under the Credit Agreement,
(G) make any change, amendment or modification whatsoever to
the terms or conditions of the Loan Documents, (H) extend, in
whole or in part, on one or any number of occasions, the time for
the payment of any principal or interest or any other amount
pursuant to the Credit Agreement or for the performance of any term
or condition of the Loan Documents, (I) settle, compromise,
release, substitute, impair, enforce or exercise, or fail or refuse
to enforce or exercise, any claims, rights, or remedies, of any
kind or nature, which Lender may at any time have against Borrower
or any other guarantor of the Guaranteed Obligations or any other
Person, or with respect to any security interest of any kind held
by Lender at any time, whether under any Loan Document or
otherwise, (J) release or substitute any security interest of
any kind held by Lender at any time, (K) collect and retain or
liquidate any collateral subject to such security interest,
(L) make advances for the purpose of performing any term or
covenant contained in the Loan Documents with respect to which
Borrower or any other guarantor of the Guaranteed Obligations is in
default, (M) foreclose on any of the Collateral,
(N) grant waivers or indulgences, (O) obtain any
additional guarantors, (P) take a deed in lieu of foreclosure,
and/or (Q) take or fail to take any other action whatsoever
with respect to the Guaranteed Obligations. Guarantor hereby waives
and agrees not to assert against Lender any rights which a
guarantor or surety could exercise. Notwithstanding any other
provision of this Guaranty or any other Loan Document, Guarantor
agrees that Lender has no duties of any nature whatsoever to any
Guarantor, whether express or implied, by virtue of this Guaranty,
or any other Loan Document, operation of law or
otherwise.
8. Guarantor agrees that his
obligations hereunder are independent of the obligati