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PARTICIPANT GUARANTEE
(Teletech Trust No. 2000-B)
from
TELETECH HOLDINGS, INC.,
a Delaware corporation
Dated December 27, 2000
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PARTICIPANT GUARANTEE
THIS PARTICIPANT GUARANTEE (Teletech Trust No. 2000-B) (this
"GUARANTEE"), dated as of December 27, 2000, is made by TELETECH HOLDINGS, INC.,
a Delaware corporation (in such capacity, the "GUARANTOR") in favor of the
Beneficiaries (as hereinafter defined).
W I T N E S S E T H:
WHEREAS, Guarantor is also a party to that certain Participation
Agreement of even date herewith (as amended, supplemented or otherwise modified,
the "PARTICIPATION AGREEMENT"), among Teletech Services Corporation, a Colorado
corporation, as Lessee; Teletech Holdings, Inc., as Guarantor; State Street Bank
and Trust Company of Connecticut, National Association, not in its individual
capacity, except as expressly stated therein, but solely as Certificate Trustee;
First Security Bank, National Association, not in its individual capacity,
except as expressly stated therein, but solely as Administrative Agent; the
financial institutions named on Schedule I thereto, as Certificate Holders; the
financial institutions named on Schedule II thereto, as Lenders; and capitalized
terms used but not otherwise defined in this Guarantee shall have the respective
meanings specified in Appendix 1 to the Participation Agreement; and the rules
of interpretation set forth in Appendix 1 to the Participation Agreement shall
apply to this Guarantee;
WHEREAS, it is a condition precedent to the consummation by
Participants of the transactions to be consummated on the Document Closing Date
and the Advance Date that Guarantor execute and deliver this Guarantee;
WHEREAS, Lessee is a direct wholly-owned Subsidiary of Guarantor, and
it is in the best interests of Guarantor that the Overall Transaction, the
Document Closing Date and the Advance Date occur; and
WHEREAS, this Guarantee, and the execution, delivery and performance
hereof, have been duly authorized by all necessary corporate action of
Guarantor;
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, Guarantor hereby agrees as follows:
Section 1. GUARANTEE. Guarantor hereby irrevocably and unconditionally
guarantees to Administrative Agent (both individually and in its capacity as
Administrative Agent), each Participant and their respective successors and
permitted assigns (each individually a "BENEFICIARY" and collectively the
"BENEFICIARIES"):
(a) the full and prompt payment when due, whether by
acceleration or otherwise, and at all times thereafter, and
(b) the full and prompt performance,
of all of the Liabilities (as hereinafter defined), including (without
duplication) Interest and Yield on any such Liabilities, whether accruing before
or after any bankruptcy or insolvency case or proceeding involving Lessee or the
Trust and, if Interest or Yield on any portion of such obligations ceases to
accrue by operation of law by reason of the commencement of such case or
proceeding, including such Interest and Yield as would have accrued on any such
portion of such obligations if such case or proceeding had not commenced, and
further agrees to pay all expenses (including reasonable attorneys' fees and
legal expenses) paid or incurred by any Beneficiary in endeavoring to collect
the Liabilities, or any part thereof, and in enforcing this Guarantee; provided,
however, any such expenses specifically contracted for by any such Beneficiary
shall be reasonable.
The term "LIABILITIES", as used herein, shall mean (without
duplication) all of the obligations of the Trust or Certificate Trustee on or
with respect to the Notes and the Certificates, including all obligations to pay
Interest on and the principal of the Notes and Yield on and the Certificate
Amount of the Certificates, Fees, and any additional amounts and other sums at
any time due or otherwise required to be paid to the Beneficiaries, by the Trust
or Certificate Trustee, in its capacity as Certificate Trustee, and all other
obligations to be performed by either of them under the terms of any Operative
Document (whether or not Certificate Trustee, Lessee, Lessor or any other Person
shall be relieved or released from any and all liability or obligations under
any thereof, except on account of the full and indefeasible payment and
performance of all the Liabilities and full and strict compliance by Guarantor
with its obligations hereunder or as provided for in SECTION 2.2 hereof).
In any action or proceeding involving any state corporate law, or any
state or federal bankruptcy, insolvency, reorganization or any other law
affecting the rights of creditors generally, if the obligations of Guarantor
under this Guarantee would otherwise be held or determined to be void, invalid
or unenforceable, or subordinated to the claims of any other
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creditors, on account of the amount of its liability under this Guarantee,
then, notwithstanding any other provision hereof to the contrary, the amount
of such liability shall, without any further action by Guarantor or any other
Person, be automatically limited and reduced to the greatest amount which is
valid and enforceable and not subordinated to the claims of other creditors
as determined in such action or proceeding.
Guarantor agrees that, in the event of the dissolution, bankruptcy or
insolvency of Lessee or the Trust, or the inability or failure of either of them
to pay debts as they become due, or an assignment by either of them for the
benefit of creditors, or the commencement of any case or proceeding in respect
of Lessee or the Trust under any bankruptcy, insolvency or similar laws, and if
such event shall occur at a time when any of the Liabilities may not then be due
and payable, Guarantor shall pay to Administrative Agent for the benefit of the
Beneficiaries forthwith the full amount which would be payable hereunder by
Lessee if all Liabilities were then due and payable.
To the extent permitted by law, notwithstanding any modification,
discharge or extension of any of the Liabilities or any amendment, modification,
stay or cure of the rights or remedies of any Beneficiary which may occur in any
bankruptcy or reorganization case or proceeding concerning Lessee, the Trust,
Certificate Trustee or any other Person, whether permanent or temporary, and
whether assented to by any Beneficiary, Guarantor hereby agrees that it shall be
obligated hereunder to pay and perform the Liabilities and to discharge its
other obligations hereunder and under the Operative Documents in accordance with
the terms of the Operative Documents and the terms of this Guarantee in effect
on the date immediately prior to such case or proceeding (including the
obligation to perform and pay the portion of the Liabilities consisting of
Interest or Yield accruing or that would have accrued after the commencement of
such bankruptcy or reorganization case or proceeding). Guarantor understands and
acknowledges that by virtue of this Guarantee it has specifically assumed any
and all risks of a bankruptcy or reorganization case or proceeding concerning
Lessee, the Trust, or any other Person.
This Guarantee shall in all respects constitute an absolute and
unconditional guaranty of payment and performance (and not of collection), and
shall remain in full force and effect until the full and indefeasible payment
and performance of all of the Liabilities and all of Guarantor's obligations
hereunder (notwithstanding, without limitation, the dissolution of Lessee or the
Trust). The liability of Guarantor hereunder may be enforced without the
Beneficiaries being required to resort to any other right, remedy or security.
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Administrative Agent, on behalf of itself and the Beneficiaries, and
the Beneficiaries may, from time to time at the discretion of each of them and
without notice to Guarantor, take any or all of the following actions to the
extent permitted by law: (a) retain or obtain a lien upon or a security interest
in any property to secure any of the Liabilities or any obligation hereunder;
(b) retain or obtain the primary or secondary obligation of any obligor or
obligors, in addition to Guarantor, with respect to any of the Liabilities; (c)
extend or renew for one or more periods (regardless of whether longer than the
original period), alter or exchange any of the Liabilities, or release or
compromise any obligation of Guarantor hereunder or any obligation of any nature
of any other obligor (including the Trust or Certificate Trustee) with respect
to any of the Liabilities; (d) release or fail to perfect its lien upon or
security interest in, or impair, surrender, release or permit any substitution
or exchange for, all or any part of any property securing any of the Liabilities
or any obligation hereunder, or extend or renew for one or more periods
(regardless of whether longer than the original period) or release, compromise,
alter or exchange any obligations of any nature of any obligor with respect to
any such property; and (e) resort to Guarantor for payment of any of the
Liabilities, regardless of whether Administrative Agent or any other Person
shall have resorted to any other Person or to any property securing any of the
Liabilities or any obligation hereunder or shall have proceeded against any
other obligor primarily or secondarily obligated with respect to any of the
Liabilities (all of the actions referred to in this paragraph being hereby
expressly waived by Guarantor). Notwithstanding the foregoing, nothing in this
paragraph shall be deemed a waiver of any notice which Guarantor is entitled to
receive pursuant to the specific terms of the Operative Documents.
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Section 2. GUARANTOR'S OBLIGATIONS UNCONDITIONAL.
2.1 Guarantor's obligations hereunder are independent of the
obligations of Lessee, the Trust, Certificate Trustee, or any other Person, and
each Beneficiary may enforce any of its rights hereunder independently of any
other right or remedy that it may at any time hold with respect to the
Liabilities or any security or other guaranty therefor. To the extent permitted
by law, such obligations shall be absolute and unconditional, shall not be
subject to any counterclaim, setoff, deduction, diminution, abatement,
recoupment, suspension, deferment, reduction or defense (other than full and
indefeasible payment and performance of all of the Liabilities and full and
strict compliance by Guarantor with its obligations hereunder), whether based
upon any claim that Lessee, the Trust, Certificate Trustee, Guarantor, any
Beneficiary or any other Person may have against any Beneficiary or any other
Person or otherwise, and shall remain in full force and effect without regard
to, and shall not be released, discharged or in any way affected by, any
circumstance or condition whatsoever (other than full and indefeasible payment
and performance of all of the Liabilities and all of Guarantor's obligations
hereunder), whether or not Lessee, the Trust, Certificate Trustee, Guarantor or
any other Person shall have any knowledge or notice thereof, including:
A. any amendment, modification, addition, deletion, supplement or
renewal to or of or other change in the Liabilities or any
Operative Document or any of the agreements referred to in any
thereof, or any other instrument or agreement applicable to
any Operative Document or any of the parties to such
agreements, or to the Leased Property, any other Teletech
Collateral, or any assignment, mortgage or transfer thereof or
of any interest therein, or any furnishing or acceptance of
additional security for, guaranty of or right of offset with
respect to, any of the Liabilities; or the failure of any
security or the failure of any Beneficiary to perfect or
insure any interest in the Leased Property or any other
Teletech Collateral;
B. any failure, omission or delay on the part of Lessee, the
Trust, Certificate Trustee, any Beneficiary or any other
Person to conform or comply with any term of any instrument or
agreement referred to in clause (A) above;
C. any waiver, consent, extension, indulgence, compromise,
release or other action or inaction under or in respect of any
instrument, agreement, guaranty, right of offset or security
referred to in CLAUSE (A) above or any
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obligation or liability of Lessee, Certificate Trustee or
any Beneficiary, or any exercise or non-exercise by any
Beneficiary of any right, remedy, power or privilege under
or in respect of any such instrument, agreement, guaranty,
right of offset or security or any such obligation or
liability;
D. any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding
with respect to Lessee, the Trust, Certificate Trustee, any
Beneficiary or any other Person or any of their respective
properties or creditors, or any action taken by any trustee,
receiver or court in any such proceeding;
E. except as provided in the second sentence of SECTION 2.2
hereof, any limitation on the liability or obligations of any
Person (including Lessee, the Trust or the Certificate
Trustee) under any Operative Document, the Liabilities, any
collateral security for the Liabilities (including the
Teletech Collateral), or any other guaranty of the Liabilities
or any discharge, termination, cancellation, frustration,
irregularity, invalidity or unenforceability, in whole or in
part, of any of the foregoing or any other agreement,
instrument, guaranty or security referred to in CLAUSE (A)
above or any term of any thereof;
F. any defect in the title, compliance with specifications,
condition, design, operation or fitness for use of, or any
damage to or loss or destruction of, or any interruption or
cessation in the use of the Leased Property or any other
Teletech Collateral by Lessee or any other Person for any
reason whatsoever (including, without limitation, any
governmental prohibition or restriction, condemnation,
requisition, seizure or any other act on the part of any
governmental or military authority, or any act of God or of
the public enemy) regardless of the duration thereof (even
though such duration would otherwise constitute a frustration
of a lease), whether or not resulting from accident and
whether or not without fault on the part of Lessee, the Trust,
Certificate Trustee or any other Person;
G. any merger or consolidation of Lessee, the Trust or Guarantor
into or with any other Person or any sale, lease or transfer
of any of the assets of Lessee, the Trust, Certificate Trustee
or Guarantor to any other Person;
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H. any change in the ownership of any shares of capital stock of
Lessee or Guarantor or any corporate change in or
reorganization of Lessee or Guarantor;
I. any loan to or other transaction between any of the
Beneficiaries and Guarantor, the Trust, Certificate Trustee or
Lessee; or
J. any other occurrence or circumstance whatsoever (other than
full and indefeasible payment and performance of all of the
Liabilities and all of Guarantor's obligations hereunder),
whether similar or dissimilar to the foregoing, and any other
circumstance that might otherwise constitute a legal or
equitable defense or discharge of the liabilities of a
guarantor or surety or that might otherwise limit recourse
against Guarantor.
2.2 The obligations of Guarantor set forth herein constitute full
recourse obligations of Guarantor enforceable against it to the full extent of
all its assets and properties, notwithstanding any provision in the
Participation Agreement, any other Operative Document or any other document or
agreement to the contrary. Guarantor's obligations hereunder will be reduced by
the amount of all non-refundable payments made by Lessee under and pursuant to
the terms of the Operative Documents. Notwithstanding the foregoing, Guarantor
shall not be required to pay more under this Guarantee than Lessee is required
to pay pursuant to the Operative Documents, solely as a result of (i) in
connection with a Condemnation or Casualty, the application of the provisions of
Sections 14.1(e) or 15.2(b) of the Lease, or (ii) if Lessee elects the Sale
Option, the limitation of Lessee's liability at Section 20.1(k) of the Lease.
2.3 Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Liabilities and notice of or proof of
reliance by any Beneficiary upon this Guarantee or acceptance of this Guarantee,
and the Liabilities and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Guarantee. Guarantor
unconditionally waives, to the extent permitted by law: (a) acceptance of this
Guarantee and proof of reliance by any Beneficiary hereon; (b) notice of any of
the matters referred to in CLAUSES (A) through (I) of SECTION 2.1 hereof or any
right to consent or assent to any thereof; (c) all notices that may be required
by statute, rule of law or otherwise, now or hereafter in effect, to preserve
intact any rights against Guarantor, including any demand, presentment, protest,
proof or notice of nonpayment under any Operative Document, and notice of
default or any failure on the part of Lessee to perform and comply with any
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covenant, agreement, term or condition of any Operative Document; (d) any right
to the enforcement, assertion or exercise against Lessee of any right, power,
privilege or remedy conferred in any Operative Document or otherwise; (e) any
requirement of diligence on the part of any Person; (f) any requirement of any
Beneficiary to take any action whatsoever, to exhaust any remedies or to
mitigate the damages resulting from a default by any Person under any Operative
Document; (g) any notice of any sale, transfer or other disposition by any
Person of any right under, title to or interest in any Operative Document or the
Leased Property or any other Teletech Collateral and (h) any other circumstance
whatsoever that might otherwise constitute a legal or equitable discharge,
release or defense of a guarantor or surety, or that might otherwise limit
recourse against Guarantor.
2.4 Guarantor agrees that this Guarantee shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of the Trust or Certificate Trustee (including any payment by Lessee) arising
under the Operative Documents is rescinded or must be otherwise restored by any
Beneficiary, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise.
2.5 Guarantor further agrees that, without limiting the generality of
this Guarantee, if an Event of Default shall have occurred and be continuing and
any Beneficiary is prevented by Applicable Law from exercising its remedies
under the Operative Documents, such Beneficiary shall be entitled to receive
hereunder from Guarantor, upon demand therefor, the sums which would otherwise
have been due from Lessee or Certificate Trustee had such remedies been
exercised.
Section 3. WAIVER OF SUBROGATION. Guarantor hereby irrevocably waives
any claim or other rights which it may now or hereafter acquire against Lessee,
the Trust or Certificate Trustee arising from the existence, payment,
performance or enforcement of Guarantor's obligations under this Guarantee or
any other Operative Document, including any right of subrogation, reimbursement,
exoneration, or indemnification, any right to participate in any claim or remedy
of any Beneficiary against Lessee, the Trust or Certificate Trustee or any
property or assets now or hereafter constituting part of the Trust Estate,
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law, including the right to take or receive from Lessee, the
Trust or Certificate Trustee directly or indirectly, in cash or other property
or by setoff or in any manner, payment or security on account of such claim or
other rights. If any amount shall be paid to Guarantor in violation of the
preceding sentence and the Liabilities shall not have been indefeasibly paid in
cash, such amount shall be deemed
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to have been paid to Guarantor for the benefit of, and held in trust for, the
Beneficiaries, and shall forthwith be paid to Certificate Trustee to be
credited and applied pursuant to the terms of the Operative Documents.
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by the Participation Agreement and
that the waiver set forth in this paragraph is knowingly made in
contemplation of such benefits.
Section 4. ADDITIONAL WAIVERS. Guarantor authorizes Administrative
Agent and each Beneficiary, at its sole option, without notice or demand and
without affecting the liability of Guarantor hereunder, to release and reconvey
(with or without the receipt of any consideration) any lien against any or all
real or personal property security for the Liabilities (including the Teletech
Collateral), to foreclose any or all deeds of trust, mortgages, security
agreements or other instruments or agreements by judicial or nonjudicial sale,
and to exercise any other remedy against Lessee any security or any other
guarantor, all without affecting the liability of Guarantor hereunder. Guarantor
waives any right to receive notice of any judicial or nonjudicial sale or
foreclosure of any real property, and the failure of Guarantor to receive such
notice shall not impair or affect Guarantor's liability hereunder.
Section 5. REASONABLENESS AND EFFECT OF WAIVERS. Guarantor warrants and
agrees that each of the waivers set forth in this Guarantee is made with full
knowledge of its significance and consequences and that, under the
circumstances, the waivers are reasonable and not contrary to public policy or
law. If any of such waivers are determined to be contrary to any applicable law
or public policy, such waivers shall be effective only to the maximum extent
permitted by law.
Section 6. TRANSFERS BY BENEFICIARIES. Each Beneficiary may, from time
to time, whether before or after any discontinuance of this Guarantee, at its
sole discretion and without notice to or consent of Guarantor, assign or
transfer any or all of the Liabilities or any interest therein, subject to
Article XII of the Participation Agreement; and, notwithstanding any such
assignment or transfer or any subsequent assignment or transfer thereof, such
Liabilities shall be and remain Liabilities for the purposes of this Guarantee,
and each and every immediate and successive permitted assignee or permitted
transferee of any of the Liabilities or of any interest therein shall, to the
extent of such assignee's or transferee's interest in the Liabilities, be
entitled to the benefits of this Guarantee to the same extent as if such
assignee or transferee were such Beneficiary.
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Section 7. NO WAIVER BY BENEFICIARIES. No delay in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise of any right or remedy shall preclude other or further exercise thereof
or the exercise of any other right or remedy; nor shall any modification or
waiver of any of the provisions of this Guarantee be binding upon any
Beneficiary except as expressly set forth in a writing duly signed and delivered
on its behalf. No action permitted hereunder shall in any way affect or impair
any Beneficiary's rights or Guarantor's obligations under this Guarantee. For
the purposes of this Guarantee, Liabilities shall include all of the obligations
described in the definition thereof, notwithstanding any right or power of
Lessee, the Trust, Certificate Trustee or anyone else to assert any claim or
defense as to the invalidity or unenforceability of any such obligation, and no
such claim or defense shall affect or impair the obligations of Guarantor
hereunder. Guarantor's obligations under this Guarantee shall, to the extent
permitted by law, be absolute and unconditional irrespective of any circumstance
whatsoever which might constitute a legal or equitable discharge or defense of
Guarantor (other than full and indefeasible payment and performance of all of
the Liabilities and all of Guarantor's obligations hereunder). Guarantor hereby
acknowledges that there are no conditions to the effectiveness of this
Guarantee.
Section 8. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon
Guarantor and upon Guarantor's successors and assigns; and all references herein
to Guarantor shall be deemed to include any successor or successors, whether
immediate or remote, to such Person.
Section 9. SEVERABILITY. Wherever possible, each provision of this
Guarantee shall be interpreted in such manner as to be effective and valid under
Applicable Laws, but if any provision of this Guarantee shall be prohibited by
or invalid thereunder, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Guarantee.
Section 10. NOTICES. All notices, demands, declarations, consents,
directions, approvals, instructions, requests and other communications required
or permitted by this Guarantee shall be in writing and shall be deemed to have
been duly given when addressed to the appropriate Person and delivered in the
manner specified in Section 15.3 of the Participation Agreement. The initial
address for notices to Guarantor is set forth beneath its signature below.
Section 11. GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
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THE STATE OF COLORADO, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES TO THE
EXTENT PERMITTED BY APPLICABLE LAW.
Section 12. SUBMISSION TO JURISDICTION. (i) Guarantor hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Guarantee or any other Operative Document, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the United States District Court for the
District of Colorado in Denver, Colorado, and appellate courts from any thereof
and, to the extent permitted by law, irrevocably agrees to be bound by any
judgment rendered thereby in connection with this Guarantee;
(b) consents that any such action or proceedings may be
brought to such courts, and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such party
at its address set forth on Schedule III to the Participation Agreement or at
such other address of which the other parties hereto shall have been notified
pursuant to Section 15.3 of the Participation Agreement; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction.
Section 13. JURY TRIAL. TO THE EXTENT PERMITTED BY LAW, GUARANTOR
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS GUARANTEE OR ANY OTHER
OPERATIVE DOCUMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT
DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR
THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS
GUARANTEE OR ANY OTHER OPERATIVE DOCUMENT AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[SIGNATURE PAGE FOLLOWS]
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PARTICIPANT GUARANTEE
IN WITNESS WHEREOF, Guarantor has caused this Participant Guarantee to
be executed and delivered as of the date first above written.
TELETECH HOLDINGS, INC., a Delaware
corporation
By: /s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: Treasurer
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxx
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