EXHIBIT 15
AGREEMENT AMONG GUARANTORS
THIS AGREEMENT AMONG GUARANTORS dated May 24, 2005, by and among Oak
Finance Investments Limited ("Borrower"), Excalibur Investment Group Limited
("Excalibur"), Xxxxxxx Xxxxxxxxxxxx ("Xxxxxxxxxxxx"), Xxxxxxx Xxxxx ("Xxxxx")
and Xxxxxx Xxxxx Xxxx (Ball").
WHEREAS, each of the Guarantors (as defined below) has guaranteed to the
lenders (collectively, the "Lender") named in the Line of Credit Agreement (the
"Credit Agreement"), dated the date hereof, among Oak, the Lender and Stonegate
Bank as administrative agent and collateral agent for the Lender, the payment
and performance by Borrower of its Obligations under the Credit Agreement;
WHEREAS, the Guarantors desire to provide for rights of indemnity and
contribution in the event that any of them are required to perform their
respective obligations under their Guaranties.
1. Certain Definitions. As used herein,
(a) "Advance" means the advance made under the Credit Agreement.
(b) "Claims" means any suits, claims, or demands by third parties,
including reasonable counsel fees incurred in investigating or defending such
Claims, suffered by any of them and caused by, relating to, arising out of,
resulting from, or in any way connected with the Advance and the transactions
contemplated by the Credit Agreement.
(c) "Collateral" has the meaning given it in the Credit Agreement.
(d) "Guarantor" means any or all of Excalibur, Xxxxxxxxxxxx, Xxxxx and
Ball.
(e) "Indemnified Party" means any Guarantor that has become subject to a
Claim or has suffered a Loss and any of the heirs and assigns of such Guarantor
and any of the directors, officers, trustees, partners, employees, agents,
attorneys and shareholders of such Guarantor.
(f) "Loan Documents" has the meaning given to it in the Credit Agreement.
(g) "TAC" means The A Consulting Team, Inc., a New York Corporation.
(h) "TAC Stock Purchase Agreement" has the meaning given it in the Credit
Agreement.
(i) "Loss" means any and all losses, damages, expenses or liabilities of
any kind or nature.
2. Covenant to Comply. Oak and each of the Guarantors agrees, for the
benefit of each other party to this Agreement, that they will comply with each
and every obligation that they respectively owe to the Lender in connection with
the Advance and otherwise.
3. Indemnity. Borrower and each Guarantor other than an Indemnified Party
(collectively, the "Indemnifying Parties") shall indemnify, protect, defend and
save harmless each Indemnified Party from and against all Losses from any
Claims; provided, that no Indemnifying Party shall be obligated to indemnify,
protect, defend or save harmless an Indemnified Party if the loss, damage,
expense or liability was caused by or resulted from (a) the gross negligence or
willful misconduct of that Indemnified Party; (b) the willful violation by any
Indemnifying Party of its obligation under any Loan Document; (c) the willful
breach by any Indemnifying Party of the representations and warranties that such
Indemnifying Party has made in any of the Loan Documents or Section 1 of this
Agreement; or, (d) in case of Ball or Excalibur, the willful breach of Section 5
of this Agreement. In case any action shall be brought against an Indemnified
Party based upon the above and in respect of which indemnity may be sought
against any Indemnified Party, the Indemnified Party against whom such claim was
brought, shall promptly notify the Indemnifying Parties, and the Indemnifying
Parties shall assume the defense thereof, including the employment of counsel
selected by the Indemnifying Parties and reasonably satisfactory to the
Indemnified Party. The Indemnified Party shall nonetheless have the right to
employ separate counsel to defend any such claim and to participate in the
defense thereof at the Indemnified Party's sole cost and expense. No
Indemnifying Party shall be liable for any settlement of any such claim effected
without its consent, unless such settlement includes an explicit and
unconditional release from the party bringing the action of all Indemnified
Parties and does not contain any admission of fault or culpability on behalf of
such Indemnified Parties, but if settled with the consent of the Indemnifying
Parties, or if there be a final judgment for the claimant of any such claim, the
Indemnifying Parties will indemnify and save harmless the Indemnified Party
against whom such claim was made from and against any Loss by reason of such
settlement or judgment.
4. Contribution. If the Indemnification provided for in Section 3 is
unavailable or insufficient to hold harmless an Indemnified Party, then each
applicable Indemnifying Party shall contribute to the amount paid or payable by
such Indemnified Party as a result of the Claims or Losses referred to in
Section 3 of this Agreement (a) in such proportion as is appropriate to reflect
the relative benefits received by the Indemnifying Parties on the one hand and
the Indemnified Party from the Advance or (b) if the allocation provided by
clause (a) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (a)
above but also the relative fault of the Indemnifying Parties on the one hand
and the Indemnified Party on the other in connection with actions or omissions
that resulted in such Losses, as well as any other relevant equitable
considerations. Relative fault of the Indemnifying Parties on the one hand and
the Indemnified Party on the other hand shall be determined by reference to,
among other things, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such actions or omission. The
amount paid or payable by an indemnified party as a result of the Losses
referred to in the first sentence of this Section 4 shall be deemed to include
any legal or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending against any action or claim which is
the subject of this Section 4. Each party entitled to contribution agrees that
upon the service of a summons or other initial legal process upon it in any
action instituted against it in respect of which contribution may be sought, it
shall promptly give written notice of such service to the party or parties from
whom contribution may be sought, but the omission so to notify such party or
parties of any such service shall not relieve the party from whom contribution
may be sought from any obligation it may have hereunder or otherwise. The
Indemnifying Parties may agree, as between themselves and without limiting the
Indemnified Party, as to the respective amounts of such liability for which they
each shall be responsible.
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5. Covenants of Excalibur and Ball. In furtherance of Section 2, each of
Excalibur and Xxxx covenant to the other that they will perform and discharge
each and every obligation under the Warrant respectfully issued them to the
holder thereof.
6. Actions and Omissions by TAC. Notwithstanding any provision of this
Agreement, no Guarantor shall be liable to any other Guarantor for a failure to
cause TAC to perform any action as required by any Loan Document unless such
other Guarantor shall have the action to impede TAC from performing such
auction.
7. Released Collateral. At such time as the Lender releases the
Collateral, the Collateral shall be allocated as follows:
(a) if no Event of Default has occurred and the Collateral has been
returned to the pledgors thereof without sale or transfer in any part, then the
Collateral shall be returned to each of Oak, Excalibur and Ball in the number of
shares of TAC stock pledged by each of Oak, Excalibur and Ball; and
(b) if an Event of Default has occurred and less than all of the
Collateral has been returned to the pledgors thereof, then the Collateral that
is returned shall be allocated as follows:
FIRST, to Ball, up to 2,303,531 shares, less the number of shares that are
subject to the Warrant issued by Ball;
SECOND, to Excalibur, up to 4,972,701 shares (less the number of shares
that are Escrow Shares or that were Escrow Shares and were subsequently
transferred to TAC), less the number of shares that are subject to the Warrant
issued by Excalibur;
THIRD, to Oak, up to 1,649,697, plus the number of shares (if any) that
Oak has purchased from TAC under Section 2.5 of the TAC Stock Purchase
Agreement; and
FOURTH, the balance, if any, to Ball, Excalibur and Oak in proportion to
the number of shares of TAC respectively held by them at such time.
8. Miscellaneous.
(a) Choice of Law. This Agreement shall be governed and construed, in
accordance with the laws of the State of New York, and the respective rights and
obligations of the parties hereto shall be governed by such laws, without regard
to principles of conflicts of laws.
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(b) Jurisdiction. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST ANY PARTY
TO THIS AGREEMENT ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY, BUT IS NOT
REQUIRED TO, BE INSTITUTED IN ANY FEDERAL OR STATE COURT LOCATED IN THE STATE OF
NEW YORK, COUNTY OF NEW YORK, AND IF SO INSTITUED ANY PARTY NAMED AS A DEFENDANT
IN SUCH SUIT, ACTION OR PROCEEDING WAIVES ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING,
AND HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY
SUIT, ACTION OR PROCEEDING. EACH PARTY HEREBY DESIGNATES AND APPOINTS CT
CORPORATION AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF
SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR
PROCEEDING IN ANY FEDERAL OR STATE COURT LOCATED IN THE STATE OF NEW YORK,
COUNTY OF NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID
ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO SUCH PARTY IN
THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF
PROCESS UPON SUCH PARTY IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF
NEW YORK. BORROWER (x) SHALL GIVE PROMPT NOTICE TO AGENT OF ANY CHANGED ADDRESS
OF ITS AUTHORIZED AGENT HEREUNDER, (y) MAY AT ANY TIME AND FROM TIME TO TIME
DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK (WHICH OFFICE
SHALL BE DESIGNATED AS THE ADDRESS FOR SERVICE OF PROCESS), AND (c) SHALL
PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN
OFFICE IN NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
(c) No modification or waiver of any provision of this Agreement shall be
effective unless such modification or waiver shall be in writing and signed by
the party from whom such modification or waiver is sought, and the same shall
then be effective only for the period and on the conditions provided therein.
(d) A determination that any portion of this Agreement is unenforceable or
invalid shall not affect the enforceability or validity of any other provision,
and any determination that the application of any provisions of this Agreement
to any person or circumstance is illegal or unenforceable shall not affect the
enforceability or validity of such provisions that may apply to other persons or
circumstances.
9. Successors and Assigns.
(a) All covenants and agreements in this Agreement shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto.
10. Waiver of Jury Trial. THE PARTIES HERETO AGREE THAT ANY SUIT, ACTION
OR PROCEEDING, WHETHER CLAIM OR COUNTERCLAIM, BROUGHT BY ANY OF THEM ON OR WITH
RESPECT TO THIS AGREEMENT OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR
THERETO, SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. THE PARTIES HERETO
EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO A TRIAL
BY JURY IN ANY SUCH SUIT, ACTION OR PROCEEDING AND WAIVES ANY RIGHT IT MAY HAVE
TO CLAIM OR RECOVER, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY SPECIAL,
EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER DAMAGES OTHER THAN, OR IN ADDITION
TO, ACTUAL DAMAGES.
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IN WITNESS WHEREOF, the undersigned have signed this Agreement as of the
date and year first written above.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first set forth above.
OAK FINANCE INVESTMENTS LIMITED
By:/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Authorized Person
EXCALIBUR INVESTMENT GROUP LIMITED
By:/s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Authorized Person
/s/ Xxxxxxx Xxxxxxxxxxxx
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Xxxxxxx Xxxxxxxxxxxx
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxx Xxxx
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Xxxxxx Xxxxx Xxxx
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