Exhibit
10.35


 




 


 





INTERCREDITOR AND
COLLATERAL AGENCY AGREEMENT


 


among


 


VARIOUS CREDITORS OF
TELETECH HOLDINGS, INC.


 


and


 


BANK OF AMERICA, N.A.,


as Collateral Agent


 


Dated as
of October 24, 2003


 




 





 

















 


TABLE
OF CONTENTS


 


	
  SECTION
  1.

  	
  DEFINED
  TERMS AND INTERPRETATION

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  2.

  	
  APPOINTMENT
  OF COLLATERAL AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  3

  	
  DECISIONS
  RELATING TO ADMINISTRATION AND EXERCISE OF REMEDIES VESTED IN THE REQUIRED BENEFITED
  PARTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  4.

  	
  APPLICATION
  OF PROCEEDS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  5.

  	
  PREFERENTIAL
  PAYMENTS AND SPECIAL TRUST ACCOUNT; SHARING

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  6.

  	
  INFORMATION
  FROM BENEFITED PARTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  7.

  	
  DISCLAIMERS,
  INDEMNITY, ETC

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  8.

  	
  INVALIDATED
  PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  9.

  	
  RELATIONSHIP
  AMONG THE BENEFITED PARTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION
  10.

  	
  MISCELLANEOUS

  	
   

  



 


i

















 


INTERCREDITOR
AND COLLATERAL AGENCY AGREEMENT


 


This INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
(this “Agreement”) dated as of October 24, 2003 is entered into among
BANK OF AMERICA, N.A.  (“Bank of
America”) in its capacity as administrative agent for the Lenders (as
defined below) under the Credit Agreement referred to below (in such capacity,
together with its successors and assigns in such capacity, the “Administrative
Agent”), the Purchasers referred to below, various other creditors of
TeleTech Holdings, Inc., a Delaware corporation (the “Company”), and
BANK OF AMERICA, as Collateral Agent (as defined below).


 


R E C I
T A L S


 


A.            Pursuant
to a Note Purchase Agreement dated as of October 1, 2001 (as amended by the
First Amendment to Note Purchase Agreement dated as of February 1, 2003, the
Waiver and Second Amendment to Note Purchase Agreement dated as of August 1,
2003 and the Third Amendment to Note Purchase Agreement dated as of September
30, 2003, and as further amended, restated or otherwise modified from time to
time, the “Note Agreement”) between the Company and each of the
purchasers listed on Schedule A thereto (the “Purchasers”; the
Purchasers, together with each other holder of a Note (as defined below),
collectively, the “Noteholders” and individually each a “Noteholder”),
the Company originally issued and sold its 7.00% Senior Notes, Series A, due
October 31, 2008 and its 7.40% Senior Notes, Series B, due October 31, 2011 (as
amended and restated on or prior to the date hereof, collectively the “Notes”
and individually each a “Note”).


 


B.            Pursuant
to a Subsidiary Guaranty Agreement dated as of October 1, 2001 (the “Noteholder
Guaranty”), various subsidiaries of the Company (collectively the “Guarantors”
and individually each a “Guarantor”) have guaranteed the payment of the
principal of, Make-Whole Amount (as defined below), if any, with respect to and
interest on the Notes and the payment and performance of all other obligations
of the Company under the Note Agreement.


 


C.            Pursuant
to a Credit Agreement dated as of October 29, 2002 (as amended, restated or
otherwise modified from time to time, the “Credit Agreement”) among the
Company, various financial institutions (collectively the “Lenders” and
individually each a “Lender”) and the Administrative Agent, the Lenders
have made loans and other financial accommodations available to the Company.


 


D.            The
Company may from time to time enter into Hedging Agreements (as defined below)
with one or more Lenders or Affiliates (as defined below) thereof.


 


E.             The
Guarantors have guaranteed the payment of all obligations of the Company under
the Credit Agreement pursuant to a Guaranty dated as of October 29, 2002 (the “Lender
Guaranty”).


 


F.             The
financial institutions listed on Schedule I (together with their
respective successors and assigns, collectively the “Cash Management Banks”
and individually each a “Cash Management Bank”) have provided and may
from time to time hereafter provide overdraft protection, lockbox services,
deposit account services and other cash management services to the


 

















 


Company or any of its subsidiaries (any arrangement to provide such
protection and/or services, a “Cash Management Arrangement”).


 


G.            The
Administrative Agent, the Lenders, the Noteholders, the Cash Management Banks,
the Company and the Guarantors have agreed that the Credit Agreement
Obligations (as defined below), the Noteholder Obligations (as defined below),
the Hedging Obligations (as defined below), the Cash Management Obligations (as
defined below), and the Guaranty Obligations (as defined below) shall be
secured pursuant to the Collateral Documents (as defined below) with the
respective priorities provided in this Agreement; the Benefited Parties (as
defined below) have agreed that Bank of America shall be the collateral agent
(in such capacity, together with its successors and assigns in such capacity,
the “Collateral Agent”) to act on behalf of all Benefited Parties
regarding the Collateral (as defined below) and, to the extent necessary in
connection therewith, the Guaranties (as defined below), all as more fully
provided herein; and the parties hereto are entering into this Agreement to,
among other things, further define the rights, duties, authority and
responsibilities of the Collateral Agent and the relationship among the
Benefited Parties regarding their interests in the Guaranties and the
Collateral.


 


NOW, THEREFORE, for good and valuable consideration,
the sufficiency and receipt of which are hereby acknowledged, the parties
hereto agree as follows:


 


SECTION 1.      DEFINED
TERMS AND INTERPRETATION.


 


(a)           As
used in this Agreement, and unless the context requires a different meaning,
the following terms have the respective meanings indicated below, all such
definitions to be equally applicable to the singular and plural forms of the
terms defined:


 


Administrative Agent
- see the Preamble.


 


Affected Benefited Party
- see Section 8.


 


Affiliate
means, as to any Person, any other Person which, directly or indirectly, is in
control of, is controlled by, or is under common control with such Person.  A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the power
to direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, partnership
interests or membership interests, by contract, or otherwise.  Without limiting the generality of the
foregoing, a Person shall be deemed to be controlled by another Person if such
other Person possesses, directly or indirectly, power to vote 20% or more of
the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.


 


Agreement
- see the Preamble.


 


Bank of America
- see the Preamble.


 


Bankruptcy Code
means the Bankruptcy Reform Act of 1978, as codified under Title 11 of the
United States Code, as in effect from time to time.


 

















 


Bankruptcy Proceeding
means, with respect to any Person, a general assignment by such Person for the
benefit of its creditors, or the institution by or against such Person of any
proceeding seeking relief as debtor, or seeking to adjudicate such Person as
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment or
composition of such Person or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors, or seeking appointment of a receiver,
trustee, custodian or other similar official for such Person or for any
substantial part of its property.


 


Benefited Obligations
means, (a) with respect to the Company, all Credit Agreement Obligations, all
Noteholder Obligations, all Hedging Obligations and all Cash Management
Obligations and (b) with respect to any Guarantor, all Guaranty Obligations of
such Guarantor.


 


Benefited Parties
means the holders from time to time of the Benefited Obligations.


 


Breakage Costs
means any loss, cost or expense of the type described in Section 3.05 of the
Credit Agreement as in effect on the date hereof.


 


Cash Management
Arrangement  - see the
Recitals.


 


Cash Management Bank  - see the Recitals.


 


Cash Management
Obligations means all obligations of the Company or any of
its subsidiaries under or in connection with any Cash Management Arrangement,
including reimbursement obligations relating thereto, overdraft liabilities,
fees, expenses and indemnities.


 


Code
means the Uniform Commercial Code as the same may from time to time be in
effect in the State of New York.


 


Collateral
means, with respect to any Debtor, all property and interests in property of
such Debtor in which a Lien has been created in favor of the Collateral Agent
and/or any other Benefited Party to secure the obligations (including any
Benefited Obligations) of such Debtor to any Benefited Party; provided
that “Collateral” shall not include any Specific Collateral.


 


Collateral Agent   - see the Recitals.


 


Collateral Document
means each of the documents referred to on Schedule II and any other
document or instrument pursuant to which any Debtor grants to the Collateral
Agent or any other Benefited Party a Lien on any property to secure the
Benefited Obligations of such Debtor, but excluding any document granting a
Lien on Specific Collateral in favor of a Benefited Party other than the
Collateral Agent.


 


Commitment Fees
means the fees payable under Section 2.09(a) of the Credit Agreement as in
effect on the date hereof.


 


Commitment Termination
Event means (a) the commencement of a Bankruptcy Proceeding
with respect to the Company (other than a Bankruptcy Proceeding that does not
constitute an “Event of Default” under the Credit Agreement), (b) the
acceleration of any Benefited Obligations (which acceleration has not been
rescinded) or (c) the refusal by the


 

















 


Lenders to make any Borrowing (as defined in the Credit Agreement) or
the L/C Issuer (as defined in the Credit Agreement) to issue any Letter of
Credit requested by the Company in accordance with the terms of the Credit
Agreement on any date on which the Commitments (as defined in the Credit
Agreement) are subject to termination pursuant to the terms of the Credit Agreement.


 


Company  - see the Preamble.


 


Credit Agreement
- see the Recitals.


 


Credit Agreement
Obligations means all obligations of the Company under or in
connection with the Credit Agreement, including for principal, interest, fees,
reimbursement obligations under Letters of Credit, Breakage Costs, expenses and
indemnities.


 


Debtor
means each of the Company and each Guarantor.


 


Enforcement
means the commencement of any enforcement, collection (including judicial or
non-judicial foreclosure) or similar proceeding with respect to any Collateral
(other than Specific Collateral).


 


Event of Default
means an  “Event of Default” as defined
in the Credit Agreement or the Note Agreement.


 


Fees and Charges
means any fees and charges (including customary fees in connection with Cash
Management Arrangements), amounts payable for increased costs, yield protection
and other indemnities required to be paid pursuant to any Financing Agreement; provided
that “Fees and Charges” shall not include (a) Letter of Credit Fees, (b) Breakage
Costs, (c) Commitment Fees, (d) fees and expenses described in clause FIRST of subsection
4(a) or (c) Fronting Fees.


 


Financing Agreements
means the Credit Agreement, the other Loan Documents (as defined in the Credit
Agreement), the Note Agreement, the Notes, this Agreement, each Hedging
Agreement, each agreement governing Cash Management Arrangements, the
Guaranties and the Collateral Documents.


 


Fronting Fees
means the fronting fees payable under Section 2.03(k) of the Credit Agreement
as in effect on the date hereof.


 


Guaranties
means the Lender Guaranty, the Noteholder Guaranty and each other guaranty
issued by any subsidiary of the Company of any Benefited Obligations of the
Company.


 


Guarantor
- see the Recitals.


 


Guaranty Obligations
means, with respect to any Guarantor, all obligations of such Guarantor under
or in connection with any Guaranty.


 


Hedging Agreement
means (a) any rate swap transaction, basis swap, credit derivative transaction,
forward rate transaction, equity or equity index swap or option, bond or bond
price


 

















 


or bond index swap or option or forward bond or forward bond price or
forward bond index transaction, interest rate option, forward foreign exchange
transaction, cap transaction, floor transaction, collar transaction, currency
swap transaction, cross-currency rate swap transaction, currency option, spot
contract, or any other similar transaction or any combination of any of the
foregoing (including any option to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, and
(b) any transaction of any kind, and each related confirmation, with respect to
interest rates or currency exchange rates which is subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc.  or any International Foreign Exchange Master Agreement (any such
master agreement, together with any related schedules, a “Master Agreement”),
including any such obligation or liability under any Master Agreement.


 


Hedging Obligations
means all obligations of the Company arising under or in connection with any
Hedging Agreement entered into with any Lender or any Affiliate of a Lender.


 


Lender
- see the Recitals.


 


Lender Guaranty
- see the Recitals.


 


Letter of Credit
means any letter of credit issued for the account of the Company or any of its
subsidiaries by a Lender under the Credit Agreement.


 


Letter of Credit Fees
means the letter of credit fees and charges payable under Section 2.03(j) and
(k) (other than Fronting Fees) of the Credit Agreement as in effect on the date
hereof.


 


Lien
means any security interest, mortgage, deed of trust, pledge, hypothecation,
assignment for security, charge or deposit arrangement, encumbrance,
preferential arrangement in the nature of security or lien (statutory or other)
in respect of any property (including those created by, arising under or
evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, or any financing lease having
substantially the same economic effect as any of the foregoing, but not
including the interest of a lessor under an operating lease).


 


Make-Whole Amount
means, with respect to any Note, the “Make-Whole Amount” payable in respect of
such Note pursuant to the Note Agreement as in effect on the date hereof.


 


Maximum Principal
Obligations means the total of the outstanding principal
amount of the Benefited Obligations plus, so long as no Commitment
Termination Event has occurred, the unused portion of the combined commitments
to lend under the Credit Agreement minus the amount of all Specific
Collateral.


 


Note Agreement
- see the Recitals.


 


Noteholder
- see the Recitals.


 


Noteholder Guaranty
- see the Recitals.


 

















 


Noteholder Obligations
means all obligations of the Company under or in connection with the Note
Agreement, including all principal of, Make-Whole Amount, if any, with respect
to and interest on the Notes, and all fees, expenses and indemnities.


 


Notes -
see the Recitals.


 


Notice of Special Default
- see subsection 5(a).


 


Person
means any individual, corporation, partnership, limited liability company,
trust or other entity.


 


Preferential Payment
means any payment or Proceeds from the Company or any Guarantor or any other
source with respect to any Benefited Obligations (including from the exercise
of any set-off) which are:


 


(i)            received
by a Benefited Party (other than a Cash Management Bank to the extent the
applicable payment or Proceeds are applied to pay Cash Management Obligations)
within 90 days prior to the commencement of a Bankruptcy Proceeding with
respect to the Company, which payment reduces the amount of the Benefited
Obligations owed to such Benefited Party below the amount owed to such
Benefited Party as of the 90th day prior to such commencement, or


 


(ii)           received
by a Benefited Party (other than a Cash Management Bank to the extent the
applicable payment or Proceeds are applied to pay Cash Management Obligations)
(A) within 90 days prior to the occurrence of any Event of Default (other than
an Event of Default arising as a result of the commencement of a Bankruptcy
Proceeding with respect to the Company) which has not been waived or cured
within 45 days after the occurrence thereof and which payment reduces the
amount of the Benefited Obligations owed to such Benefited Party below the
amount owed to such Benefited Party as of the 90th day prior to the occurrence
of such Event of Default or (B) within 45 days after the occurrence of such
Event of Default, or


 


(iii)          except
(A) as provided in subsection 5(b) and (B) to the extent applied by a
Cash Management Bank to pay Cash Management Obligations so long as (I) such
Cash Management Bank is permitting the applicable Debtor (or Debtors) to
continue the applicable Cash Management Arrangement substantially in the
ordinary course of business and (II) no Bankruptcy Proceeding has been
commenced with respect to the Company and such Cash Management Bank has not
received notice that the Credit Agreement Obligations or the Noteholder
Obligations have been accelerated, received by a Benefited Party after the
occurrence of a Special Event of Default;


 


provided that (x) the netting by a
Cash Management Bank of positive and negative balances in accounts included in
a Cash Management Arrangement shall not constitute a Preferential Payment prior
to the first Business Day after the Business Day on which a Bankruptcy
Proceeding has been commenced with respect to the Company or the Credit
Agreement Obligations or the Noteholder Obligations have been accelerated; (y)
the application by any Benefited Party of any Specific Collateral shall not
constitute a Preferential Payment if and to the extent that prepayments made to
other Benefited Parties arising out of the same event that gave rise to, and
made at the time of the delivery to such Benefited Party (or an agent therefor)
of,


 

















 


such Specific Collateral do not constitute Preferential Payments; and
(z) no payment to, or application of Proceeds by, a Cash Management Bank to
reimburse itself for amounts made available pursuant to a cash collateral order
or similar order in a Bankruptcy Proceeding shall constitute a Preferential
Payment.


 


Proceeds
(a) with respect to any Collateral, has the meaning assigned to it under the
Code and, in any event, includes (i) any and all proceeds of any collection,
sale or other disposition of such Collateral and (ii) any and all amounts from
time to time paid or payable under or in connection with any of such Collateral;
and (b) with respect to any Guaranty, means all amounts paid to the Collateral
Agent or any other Benefited Party under such Guaranty.


 


Purchaser
- see the Recitals.


 


Repayment Event - see Section 8.


 


Required Benefited
Parties means (a) Benefited Parties holding more than 50% of
the Benefited Obligations, (b) at any time the principal amount of the
Noteholder Obligations is at least equal to 10% of the Maximum Principal
Obligations, the Required Noteholders, and (c) at any time the total of the
principal amount of the Credit Agreement Obligations plus (so long as no
Commitment Termination Event has occurred) the unused portion of the combined
Commitments (under and as defined in the Credit Agreement) minus the amount of
any Specific Collateral for the Credit Agreement Obligations is at least equal
to 10% of the Maximum Principal Obligations, the Required Lenders.


 


Required Noteholders
means “Required Holders” as defined in the Note Agreement.


 


Required Lenders
means “Required Lenders” as defined in the Credit Agreement.


 


Special Event of Default
means  (i) the commencement of a
Bankruptcy Proceeding with respect to the Company, (ii) any other Event of
Default which has not been waived or cured within 45 days after the occurrence
thereof, (iii) the making of a demand for payment under any Guaranty or (iv)
the acceleration of the Credit Agreement Obligations, the Noteholder
Obligations, any Cash Management Obligations or any Hedging Obligations.


 


Special Trust Account
means an interest bearing trust account maintained by the Collateral Agent for
the purpose of receiving and holding Preferential Payments.


 


Specific Collateral
- see subsection 10(k).


 


UCC
means the Uniform Commercial Code as in effect from time to time in the State
of New York.


 


Unmatured Event of
Default means an event that, with the giving of any notice,
the passage of time or both, would be an Event of Default.


 


(b)           Section
captions are included in this Agreement for convenience only and shall not be
given effect in interpreting this Agreement.  Section and Schedule references are to sections and schedules of
this Agreement.  The term “including”
shall in all cases mean


 

















 


“including, without limitation.” Reference to any agreement (including
this Agreement), document or instrument means, unless otherwise stated, such
agreement, document or instrument as amended, restated or otherwise modified
from time to time prior to or after the date hereof.  Reference to any law means such law as amended, modified, codified,
replaced or re-enacted, in whole or in part, as in effect from time to time,
including rules, regulations, enforcement procedures and interpretations
promulgated thereunder.  This Agreement
and the other documents relating to this Agreement are the result of
negotiations among and have been reviewed by counsel to the Collateral Agent,
the Administrative Agent, the Purchasers and certain of the other parties, and
are the products of all parties. 
Accordingly, they shall not be construed against any party merely
because of such party’s involvement in their preparation.


 


SECTION 2.      APPOINTMENT
OF COLLATERAL AGENT.


 


Each of the Lenders (by its consent to the execution
and delivery by the Administrative Agent of this Agreement), each of the
Noteholders and (by its acceptance of the benefits hereof) each other Benefited
Party:


 


(a)           designates
and appoints Bank of America to serve as the Collateral Agent under this
Agreement and the Collateral Documents (and, to the extent necessary in
connection therewith, the Guaranties);


 


(b)           authorizes
the Collateral Agent to act as agent for the Benefited Parties for the purposes
of executing and delivering on behalf of the Benefited Parties the Collateral
Documents and, subject to the provisions of this Agreement, enforcing the
Benefited Parties’ rights in respect of the Collateral (and, to the extent
necessary in connection therewith, the Guaranties) and the obligations of the
Debtors under the Collateral Documents (and, to the extent necessary in
connection therewith, the Guaranties), together with such other powers as are
reasonably incidental thereto;


 


(c)           acknowledges and agrees that
(i) the Collateral Agent will file a deed of trust with respect to the
Company’s headquarters facility and Uniform Commercial Code financing
statements with respect to the personal property of the Company and the
Guarantors, (ii) except as expressly set forth in clause (iii) below,
the Collateral Agent will use reasonable efforts to obtain an account control
agreement with respect to each deposit account (other than deposit accounts
maintained outside the United States and payroll accounts) maintained by the
Company or any Guarantor and (iii) unless the Required Lenders or the Required
Noteholders so request during the existence of an Event of Default, the
Collateral Agent will not be required to take any other action to perfect its
security interest in the Collateral or to notify third Parties of such security
interest (including, without limitation, noting the Collateral Agent’s lien on
certificates of title, filing leasehold mortgages, filing against intellectual
property with the Patent and Trademark Office, filing fixture financing
statements, filing against Collateral maintained outside the United States,
obtaining landlord waivers, obtaining blocked account or control agreements
from Wells Fargo Bank National Association or Silicon Valley Bank or any
similar action); and


 


(d)           acknowledges and agrees that,
notwithstanding any provision in any Financing Agreement to the contrary, (i)
no Debtor makes any representation or warranty as to the creation,


 

















 


perfection or enforceability
of any security interest in or lien on any personal property not covered by the
UCC (or, solely with respect to perfection, as to which a security interest may
not be perfected by central filing in accordance with Section 9-50l(a)(2) of
the UCC) or any real property other than the Company’s headquarters facility
(the “Initial Collateral”); and (ii) so long as no Event of Default exists, no
Debtor shall have any obligation to take any action (x) to create or perfect
any security interest in or lien on any personal property other than the
Initial Collateral or (y) of the types described in the parenthetical clause at
the end of subsection 2(c); it being understood that prior to request by
the Required Lenders or the Required Noteholders during the existence of an
Event of Default, the sole obligation of each Debtor with respect to the
creation and perfection of security interests in and liens on Collateral shall
be (i) to take all actions necessary to create, perfect and maintain security
interests in all personal property of such Debtor in which a security interest
may be perfected by the central filing of a financing statement under the
applicable Uniform Commercial Code, (ii) to grant the Collateral Agent
“control” over all deposit accounts (other than deposit accounts maintained
outside the United States and payroll accounts) and investment property of such
Debtor (except for existing accounts at Wells Fargo Bank National Association
and Silicon Valley Bank, which will be closed no later than January 31, 2004,
and securities accounts maintained outside the United States), (iii) in the
case of TeleTech Services Corporation, to create and perfect a lien on the
Company’s headquarters facility and (iv) to take such other actions as the
Collateral Agent may reasonably request from time to time in furtherance of the
foregoing.


 


SECTION 3.      DECISIONS RELATING TO ADMINISTRATION AND
EXERCISE OF REMEDIES VESTED IN THE REQUIRED BENEFITED PARTIES.


 


(a)           Except as set forth in subsection
3(f) or 10(g), the Collateral Agent agrees that it will not (i)
release any Lien or Collateral without the consent of the Required Benefited
Parties or (ii) commence Enforcement without the direction of the Required
Benefited Parties.  Subject to subsections
2(c) and (d), the Collateral Agent agrees to administer the
Collateral and to make such demands and give such notices under the Collateral
Documents as the Required Benefited Parties may request, and to take such
action to enforce the Collateral Documents (and, to the extent necessary in
connection therewith, the Guaranties) and to realize upon, collect and dispose
of the Collateral or any portion thereof as may be directed by the Required
Benefited Parties.  The Collateral Agent
shall not be required to take any action that is in the opinion of counsel to
the Collateral Agent contrary to law or to the terms of this Agreement, any
Guaranty or any Collateral Document, or that would in the opinion of such
counsel subject the Collateral Agent or any of its officers, employees, agents
or directors to liability, and the Collateral Agent shall not be required to
take any action under this Agreement, any Guaranty or any Collateral Document
unless and until the Collateral Agent shall be indemnified to its reasonable
satisfaction by one or more of the Benefited Parties against any and all loss,
cost, expense or liability in connection therewith.


 


(b)           Each Benefited Party agrees that the
Collateral Agent shall act as the Required Benefited Parties may request
(regardless of whether any individual Benefited Party agrees, disagrees or
abstains with respect to such request) and that the Collateral Agent shall have
no liability for acting in accordance with such request (provided such
action does not conflict with the express terms of this Agreement, any Guaranty
or any Collateral Document).  The
Collateral Agent shall give prompt notice to each Lender and each Noteholder of
any action taken pursuant


 

















 


to the instructions of the
Required Benefited Parties to enforce any Collateral Document; provided
that the failure to give any such notice shall not impair the right of the
Collateral Agent to take any such action or the validity of any action so
taken.


 


(c)           The Collateral Agent may at any time
request directions from the Required Benefited Parties as to any course of
action or other matter relating hereto or relating to any Guaranty or any
Collateral Document.  Except as
otherwise provided in this Agreement, directions given by the Required
Benefited Parties to the Collateral Agent hereunder shall be binding on all
Benefited Parties, for all purposes.  If
the Collateral Agent has asked the Benefited Parties for instruction and if the
Required Benefited Parties have not yet responded to such request, the
Collateral Agent shall be authorized to take, but shall not be required to take
and shall in no event have any liability for failure to take, such actions with
regard to any Event of Default which the Collateral Agent, in good faith,
believes to be reasonably required to promote and protect the interests of the
Benefited Parties and to maximize both the value of the Collateral and the
present value of the recovery by the Benefited Parties on the Benefited
Obligations and shall give the Benefited Parties appropriate notice of such
action; provided that once such instructions have been received by the
Collateral Agent, the actions of the Collateral Agent shall be governed thereby
and the Collateral Agent shall not take any further action which would be
contrary thereto.


 


(d)           Nothing contained in this Agreement
shall affect the right (if any) of any Benefited Party to give the Company or
any other applicable Person notice of any default or to accelerate or make
demand for payment of its Benefited Obligations under any applicable Financing
Agreement.  Each Benefited Party agrees
not to take any action to enforce any term or provision of any Collateral
Document or to enforce any of its rights in respect of the Collateral (other
than Specific Collateral) except through the Collateral Agent in accordance
with this Agreement.


 


(e)           The Collateral Agent shall not be
deemed to have actual or constructive knowledge or notice of the occurrence of
any Event of Default until it has received written notice thereof from the Company
or any Benefited Party stating that it is a “Notice of Default.” Any Benefited
Party that has actual knowledge of an Event of Default shall deliver to the
Collateral Agent a written statement describing such Event of Default (provided
that failure to do so shall not constitute a waiver of such Event of Default by
any Benefited Party).  Upon receipt of a
notice from the Company or any Benefited Party of the occurrence of an Event of
Default, the Collateral Agent shall promptly (and in any event no later than
three business days after receipt of such notice in the manner provided in subsection
10(a)) give notice of such Event of Default to all other Benefited Parties.


 


(f)            Unless the Collateral Agent has
received notice (as provided in subsection 3(e) above) that an Event of
Default exists, the Collateral Agent may (and shall at the request of any
Debtor), without the approval of any other Benefited Party, (i) release any
Collateral under any Collateral Document which is permitted to be sold or
disposed of or otherwise released pursuant to the Credit Agreement and the Note
Agreement and execute and deliver such releases as may be necessary to
terminate of record the Collateral Agent’s security interest (for the benefit
of the Benefited Parties) in such Collateral; and (ii) subordinate any Lien on
any property which constitutes Collateral to the holder of any Lien on such
property which is permitted by


 

















 


Section 7.01(h), (k) or (l)
(but in the case of subsection 7.01(1), solely with respect to purchase money
security interests or leases of equipment or other personal property and so
long as the senior Lien attaches only to the property so acquired or leased) of
the Credit Agreement and Section 10.5(h), (i) or (j) of the Note Agreement,
each as in effect on the date hereof. 
In determining whether any such release or subordination is permitted,
the Collateral Agent may, in the absence of actual notice to the contrary (and
without any review of any Financing Agreement or any other investigation or
inquiry), conclusively rely upon a certificate from the Company that such
release or subordination is permitted by the Credit Agreement and the Note
Agreement.


 


(g)           Without limiting subsection 3(f)
but subject to Section 5, the security interest of the Collateral Agent
in any Specific Collateral shall automatically, and without further action, (i)
be subordinated to the security interest of the Benefited Party that holds such
Specific Collateral, and the Collateral Agent shall not take any action to
enforce or realize upon such Collateral (other than giving any notice of claim
to a subordinate interest in such Collateral that the Collateral Agent deems
necessary or appropriate to preserve such claim) without the prior written
consent of such Benefited Party; and (ii) be released upon such Benefited
Party’s application of such Specific Collateral to any Benefited Obligations
arising under Letters of Credit in accordance with the provisions of subsection
10(k).  The Collateral Agent is
authorized to execute and deliver any documents reasonably requested by any
Benefited Party to evidence any such subordination or release.


 


(h)           Any term of the Collateral Documents
may be amended, and the performance or observance by the parties to a
Collateral Document of any term of such Collateral Document may be waived
(either generally or in a particular instance and either retroactively or
prospectively) by the Collateral Agent upon the written consent of the Required
Benefited Parties; provided that no amendment to the Collateral Documents
which directly or indirectly narrows the description of the Collateral or the
obligations being secured thereby or changes the priority of payments to the
Benefited Parties under the Collateral Documents may be made without the
written consent of all of the Benefited Parties.


 


SECTION 4.      APPLICATION
OF PROCEEDS.


 


(a)           All Proceeds received by the
Collateral Agent from, or in respect of the Collateral of, any Debtor in
connection with an Enforcement, and all Preferential Payments made by the
Company or any Guarantor which are required to be paid to all Benefited Parties
in accordance with Section 5,shall be applied promptly by the Collateral
Agent as follows:


 


FIRST:  To the payment of the reasonable costs and
expenses of the collection of such Proceeds and any sale, collection or other
realization upon any such Collateral, including reasonable fees and expenses of
counsel, and all reasonable expenses, liabilities and advances made or incurred
by the Collateral Agent in connection therewith, and all other amounts due to
the Collateral Agent in its capacity as such;


 


SECOND:  To the ratable payment of the Benefited
Obligations then due and owing by the Company or such Guarantor (including
Letter of Credit Fees and up to $5,000,000 of then outstanding Cash Management
Obligations (other than customary fees in connection with Cash Management
Arrangements) but excluding Cash Management


 

















 


Obligations in excess of
$5,000,000, Hedging Obligations, Make-Whole Amounts, Breakage Costs, Fronting
Fees, Commitment Fees and Fees and Charges); provided that with respect
to Benefited Obligations consisting of the undrawn amounts of outstanding
Letters of Credit, payment shall be made to the Collateral Agent, to be
retained as collateral, for the ratable portion of the Benefited Obligations
consisting of such undrawn amounts of outstanding Letters of Credit (provided
that (i) if any payment is made by a Benefited Party under any such Letter of
Credit, the Collateral Agent shall pay to such Benefited Party the ratable
portion of the amount of cash held as collateral therefor pursuant to this
clause which is allocable to the amount paid under such Letter of Credit (or in
respect of such time draft) less the amount of any Specific Collateral held by
such Benefited Party; and (ii) if and to the extent that any such Letter of
Credit shall expire or terminate, the amount of cash held as collateral
therefor pursuant to this clause shall be applied in accordance with this subsection
4(a)), calculated in accordance with the provisions of subsection 4(b);


 


THIRD:  To the ratable payment of Hedging
Obligations, remaining Cash Management Obligations, Make-Whole Amounts,
Breakage Costs, Fronting Fees and Commitment Fees;


 


FOURTH:  To the ratable payment of Fees and Charges;
and


 


FIFTH:  After payment in full of all Benefited
Obligations, to the payment to or upon the order of the Company or the
Guarantors, or to whomsoever may be lawfully entitled to receive the same or as
a court of competent jurisdiction may direct, of any surplus then remaining
from such Proceeds.


 


Until such Proceeds are so
applied, the Collateral Agent shall hold such Proceeds in its custody in an
interest-bearing account in accordance with its regular procedures for handling
deposited funds.


 


(b)           Payment shall be based upon the
proportion which the amount of the Benefited Obligations described in clause
FIRST, SECOND, THIRD and FOURTH of subsection 4(a), as applicable, owing
by the Company or any Guarantor to any Benefited Party bears to the total
amount of all Benefited Obligations described in such clause owing by such
Person to all Benefited Parties.


 


(c)           Payments by the Collateral Agent in
respect of (i) the Credit Agreement Obligations and, to the extent relating to
the Credit Agreement Obligations, the Guaranty Obligations, shall be made to
the Administrative Agent for distribution to the Lenders in accordance with the
Credit Agreement; (ii) the Noteholder Obligations and, to the extent relating
to the Noteholder Obligations, the Guaranty Obligations, shall be made to the
applicable Noteholder; (iii) the Hedging Obligations and, to the extent
relating to the Hedging Obligations, the Guaranty Obligations, shall be made to
the holder of such Hedging Obligations and (iv) the Cash Management Obligations
and, to the extent relating to the Cash Management Obligations, the Guaranty
Obligations, shall be made to the applicable Cash Management Bank.


 

















 


SECTION 5.      PREFERENTIAL
PAYMENTS AND SPECIAL TRUST ACCOUNT; SHARING.


 


(a)           The Collateral Agent shall give each
Benefited Party a written notice (a “Notice of Special Default”)
promptly, but no later than three business days, after being notified in
writing by a Benefited Party that a Special Event of Default has occurred.  After the receipt of such Notice of Special
Default, all Preferential Payments other than those payments received pursuant
to subsection 5(b) shall be deposited into the Special Trust
Account.  Each Benefited Party agrees
that no Event of Default shall occur for failure by the Company to make any
payment to any Benefited Party as a result of payments so made on a timely
basis to the Collateral Agent.


 


(b)           If (i) such Special Event of Default
is waived by the applicable Benefited Parties and no other Event of Default has
occurred and is continuing, (ii) such Special Event of Default is cured by the
Company or any amendment of the applicable Financing Agreement and no other
Event of Default has occurred and is continuing or (iii) no Benefited
Obligations have been accelerated and the Required Benefited Parties have not
instructed the Collateral Agent to commence Enforcement prior to the 90th day
following the occurrence of such Special Event of Default (notwithstanding that
such Special Event of Default or any other Event of Default exists), the
Collateral Agent thereupon shall return all amounts, together with a pro rata
share of interest earned thereon, held in the Special Trust Account
representing payment of any Benefited Obligations to the Benefited Party
initially entitled thereto, and no payments thereafter received by a Benefited
Party shall constitute a Preferential Payment by reason of such cured or waived
Special Event of Default.  No payment
returned to a Benefited Party for which such Benefited Party has been obligated
to make a deposit into the Special Trust Account shall thereafter ever be
characterized as a Preferential Payment.


 


(c)           Each Benefited Party agrees that upon
the occurrence of a Special Event of Default it shall (i) promptly notify the
Collateral Agent of the amount of all Preferential Payments (if any) previously
received by such Benefited Party and of the receipt thereafter of any
Preferential Payment, (ii) hold such amounts in trust for the Benefited Parties
and act as agent of the Benefited Parties during the time any such amounts are
held by it and (iii) deliver to the Collateral Agent such amounts for deposit
into the Special Trust Account.


 


(d)           If (i) the Benefited Obligations have
been accelerated or (ii) the Required Benefited Parties have instructed the
Collateral Agent to commence Enforcement, then all funds, together with
interest accrued thereon, held in the Special Trust Account and all subsequent
Preferential Payments shall be applied in accordance with the provisions of subsection
4(a).


 


(e)           For the purposes of determining the amount
of outstanding Benefited Obligations, if any Benefited Party is required to
deposit any Preferential Payment in the Special Trust Account, then the
obligations intended to be satisfied by such Preferential Payment shall be
revived, as of the date of the deposit of such amount with the Collateral
Agent, in the amount of such Preferential Payment and such obligation shall
continue in full force and effect (and bear interest from such deposit date at
the non-default rate provided in the underlying document) as if such Benefited
Party had not received such payment. 
All such revived obligations shall be included as Benefited Obligations
for purposes of allocating any payments under subsection 4(a)


 

















 


and for applying the
definition of Required Benefited Parties. 
If any such revived obligation shall not be allowed as a claim under the
Bankruptcy Code due to the fact that the Preferential Payment has in fact been
made by the Company, the Benefited Parties shall make such other equitable
arrangements for the purchase and sale of participation in the Benefited
Obligations to effectuate the intent of this subsection 5(e).


 


SECTION 6.      INFORMATION
FROM BENEFITED PARTIES


 


Each
Benefited Party shall promptly from time to time, upon written request of the
Collateral Agent, (i) notify the Collateral Agent of the outstanding Benefited
Obligations owed to such Benefited Party as at such date as the Collateral
Agent may specify and (ii) notify the Collateral Agent of any payment received
thereafter by such Benefited Party to be applied to the Benefited Obligations
payable to such Benefited Party.  Each
Benefited Party shall certify as to such amounts and the Collateral Agent shall
be entitled to rely conclusively upon such certification.


 


SECTION 7.      DISCLAIMERS, INDEMNITY, ETC.


 


(a)           The Collateral Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the Collateral Documents.  The
Collateral Agent shall not by reason of this Agreement, any Guaranty or any
Collateral Document be a trustee for any Benefited Party or have any other
fiduciary obligation to any Benefited Party (including any obligation under the
Trust Indenture Act of 1939, as amended). 
The Collateral Agent shall not be responsible to any Benefited Party for
any recitals, statements, representations or warranties contained in any
Financing Agreement or in any certificate or other document referred to or
provided for in, or received by any of them under, any Financing Agreement
(other than statements, representations and warranties made by the Collateral
Agent), or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of any Financing Agreement or any other document referred to or
provided for therein or any Lien under any Collateral Document or the
perfection or priority of any such Lien or for any failure by the Company, any
Guarantor, any Benefited Party or any other Person to perform any of its
respective obligations under any Financing Agreement.  Without limiting the foregoing, the Collateral Agent shall not be
required to take any action under any Guaranty or any Collateral Document,
including any action to perfect any security interest granted in the Collateral
pursuant to any Collateral Document, or to administer any Collateral unless
instructed to do so by the Required Benefited Parties; provided that,
subject to subsection 2(d), any Benefited Party may instruct the
Collateral Agent to take actions necessary to preserve, protect or continue any
existing security interest (including, without limitation, an instruction to
file a Uniform Commercial Code financing statement) without the need to obtain
the consent of the Required Benefited Parties. The Collateral Agent may employ
agents and attorneys-in-fact and shall not be responsible, except as to money
or securities received by it or its authorized agents, for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it with
reasonable care.  Neither the Collateral
Agent nor any of its directors, officers, employees or agents shall be liable
or responsible for any action taken or omitted to be taken by it or them
hereunder, under any Guaranty or Collateral Documents or in connection with any
of the foregoing, except for the gross negligence or willful misconduct of such
Person.


 

















 


(b)           The Collateral Agent shall be
entitled to rely upon any certification, notice or other communication
(including any thereof by telephone, facsimile, telegram or cable) believed by
it to be genuine and correct and to have been signed or sent by or on behalf of
the proper Person or Persons, and upon advice and statements of independent
legal counsel, independent accountants and other experts selected by the
Collateral Agent.  As to any matters not
expressly provided for by this Agreement, the Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder in
accordance with instructions signed by the Required Benefited Parties, and such
instructions of the Required Benefited Parties, and any action taken or failure
to act pursuant thereto, shall be binding on all Benefited Parties.


 


(c)           The Benefited Parties agree severally
(but not jointly) that they will indemnify the Collateral Agent, in its
capacity as the Collateral Agent, ratably in accordance with the amount of the
Benefited Obligations held by each of the Benefited Parties at the time any
item described below arises, to the extent the Collateral Agent is not
reimbursed by the Company or the Guarantors under the Financing Agreements or reimbursed
out of any Proceeds pursuant to clause FIRST of subsection 4(a), for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by or asserted against the
Collateral Agent in any way relating to or arising out of this Agreement, any
Guaranty or any Collateral Document or the enforcement of any of the terms
hereof or thereof, including reasonable fees and expenses of counsel (including
the allocated cost of internal counsel); provided that no Benefited
Party shall be liable for any such payment to the extent the obligation to make
such payment is found in a final judgment by a court of competent jurisdiction
to have arisen from the Collateral Agent’s gross negligence or willful
misconduct.  The obligations of the
Benefited Parties under this subsection 7(c) shall survive the payment
in full of the Benefited Obligations and the termination of this Agreement.


 


(d)           Except for action expressly required
of the Collateral Agent hereunder, the Collateral Agent shall, notwithstanding subsection
7(c), in all cases be fully justified in failing or refusing to act
hereunder unless it shall be further indemnified to its reasonable satisfaction
by the Benefited Parties against any and all liability and expense that may be
incurred by it by reason of taking or continuing to take any such action.


 


(e)           The Collateral Agent may deem and
treat the payee of any promissory note or other evidence of indebtedness or
obligation relating to any Benefited Obligation as the owner thereof for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof, signed by such payee and in form reasonably satisfactory to the Collateral
Agent, shall have been filed with the Collateral Agent.  Any request, authority or consent of any
Person who at the time of making such request or giving such authority or
consent is the holder of any such note or other evidence of indebtedness or obligation
shall be conclusive and binding on any subsequent holder, transferee or
assignee of such note or other evidence of indebtedness or obligation and of
any note or notes or other evidences of indebtedness or obligation issued in
exchange therefor.


 


(f)            Except as expressly provided herein,
the Collateral Agent shall have no duty to take any affirmative steps with
respect to the administration or collection of amounts payable in respect of
the Guaranties, the Collateral Documents or the Collateral.  The Collateral Agent shall


 

















 


incur no liability (except
to the extent the actions or omissions of the Collateral Agent in connection
therewith constitute gross negligence or willful misconduct) as a result of any
sale of any Collateral, whether at any public or private sale.


 


(g)           (i) The Collateral Agent may resign
at any time by giving at least 45 days’ notice thereof to the Lenders and the
Noteholders, the Collateral Agent may be removed as the Collateral Agent at any
time, with or without cause, by the Required Benefited Parties and the
Collateral Agent may be removed by the Required Noteholders at any time that
(A) an Event of Default exists under the Note Agreement or the principal amount
of the Notes constitutes more than 50% of the Maximum Principal Obligations and
(B) the Collateral Agent has failed to take any action which the Collateral
Agent is required to take hereunder after request therefor by the Required
Noteholders or the Collateral Agent has taken any action hereunder which the
Collateral Agent is not authorized to take hereunder or which violates the
terms hereof.  In the event of any such
resignation or removal of the Collateral Agent, the Required Benefited Parties
shall thereupon have the right to appoint a successor Collateral Agent.  If no successor Collateral Agent shall have
been so appointed by the Required Benefited Parties and shall have accepted
such appointment within 45 days after the notice of the intent of the
Collateral Agent to resign or the removal of the Collateral Agent, then the
resignation or removal shall nonetheless become effective and the Benefited
Parties acting collectively shall thereafter have the rights and obligations of
the Collateral Agent hereunder and under the Collateral Documents until a
successor Collateral Agent has been appointed and accepted such
appointment.  Any successor Collateral
Agent appointed pursuant to this subsection shall be a commercial bank or other
financial institution organized under the laws of the United States of America
or any state thereof having combined capital and surplus of at least
$500,000,000 or shall otherwise be acceptable to the Required Benefited
Parties.  After any retiring or removed
Collateral Agent’s resignation or removal hereunder, the provisions of Section
3 and this Section 7 shall continue to inure to its benefit as to
any actions taken or omitted to be taken by it while it was the Collateral
Agent.


 


(ii)           Upon the acceptance by a successor
Collateral Agent of appointment as the Collateral Agent hereunder, such successor
Collateral Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring or removed Collateral
Agent, and the retiring or removed Collateral Agent shall thereupon be
discharged from its duties and obligations hereunder.


 


(h)           In no event shall the Collateral
Agent or any other Benefited Party be liable or responsible for any funds or
investments of funds held by the Company, any Guarantor or any of their
Affiliates.


 


(i)            With respect to their respective
shares of the Benefited Obligations, Bank of America and its Affiliates shall
have and may exercise the same rights and powers hereunder as, and shall be
subject to the same obligations and liabilities as and to the extent set forth
herein for, any other Benefited Party, all as if Bank of America were not the
Collateral Agent.  The terms “Benefited
Parties”, “Required Benefited Parties”, “Lenders”, “Required Lenders” , “Cash
Management Bank” or any similar term shall, unless the context clearly otherwise
indicates, include Bank of America or any Affiliate of Bank of America in its
individual capacity as a Benefited Party, one of the Required Benefited
Parties, a Lender, one of the Required Lenders or a Cash Management Bank.  Bank of America and its Affiliates may lend
money to, and generally


 

















 


engage in any kind of
business with, the Company or any of its Affiliates as if Bank of America were
not acting as the Collateral Agent and without any duty to account therefor to
any other Benefited Party. Without limiting the foregoing, each Benefited Party
acknowledges that (i) Bank of America is both a Lender and the Administrative
Agent under the Credit Agreement and the Collateral Agent hereunder and under
the Collateral Documents and (ii) Bank of America and its Affiliates may
continue to engage in any credit decision with respect to the Credit Agreement
or any other Financing Agreement without any duty to account therefor to the
Benefited Parties by reason of its appointment as the Collateral Agent.


 


(j)            Each party hereto acknowledges that
it has, independently and without reliance upon the Collateral Agent or any
other party hereto and based upon such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into
this Agreement and the other Financing Agreements to which it is a party.  Each party hereto also acknowledges that it
will, independently and without reliance upon the Collateral Agent and based
upon such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Financing Agreements to which it is a party.


 


(k)           If, with respect to any proposed
action to be taken by it, the Collateral Agent shall determine in good faith
that the provisions of this Agreement relating to the functions or
discretionary powers of the Collateral Agent are or may be ambiguous or
inconsistent, the Collateral Agent shall notify the Lenders and the Noteholders
identifying the proposed action and the provisions it considers to be ambiguous
or inconsistent, and may decline cither to perform such function or
responsibility or to exercise such discretionary power unless it has received
the written confirmation of the Required Benefited Parties that the Required
Benefited Parties concur that the action proposed to be taken by the Collateral
Agent is consistent with the terms of this Agreement or is otherwise
appropriate.  The Collateral Agent shall
be fully protected in acting or refraining from acting upon the confirmation of
the Required Benefited Parties in this respect, and such confirmation shall be
binding upon all Benefited Parties.


 


(l)            The Company and each other Debtor,
by its consent hereto, agrees to pay to the Collateral Agent, from time to time
upon demand, all reasonable fees, costs and expenses of the Collateral Agent
(including the reasonable fees and charges of counsel to the Collateral Agent
and the allocated cost of internal legal services and all reasonable
disbursements of internal counsel) (i) arising in connection with the
enforcement of any of the provisions of this Agreement or the other Financing
Agreements, (ii) incurred or required to be advanced in connection with the
administration of the Collateral, the sale or other disposition of the
Collateral pursuant to any Collateral Document and the preservation, protection
or defense of the Collateral Agent’s rights under this Agreement and the other
applicable Financing Agreements and in and to the Collateral, or (iii) incurred
by the Collateral Agent in connection with the resignation of the Collateral
Agent pursuant to subsection 7(g). 
The obligations of the Company and each other Debtor under this subsection
7(1) shall survive the termination of the other provisions of this
Agreement.


 

















 


SECTION 8.                  INVALIDATED PAYMENTS.


 


If
the Collateral Agent or any other Benefited Party receives any amount pursuant
to this Agreement that is subsequently required to be returned or repaid by the
Collateral Agent or such other Benefited Party to the Company or any Guarantor
or any Affiliate thereof or their respective representatives or successors in
interest, whether by court order, settlement or otherwise (a “Repayment
Event”), then


 


(x) if the Repayment Event results in the Collateral Agent being
required to return or repay any amount distributed by it to the other Benefited
Parties under this Agreement, each Benefited Party to which such amount was
distributed shall, forthwith upon its receipt of a notice thereof from the
Collateral Agent, pay the Collateral Agent an amount equal to its ratable share
(based on the amount distributed to such Benefited Party) of the amount
required to be returned or repaid relating to such Repayment Event,


 


(y) if the Repayment Event results in any Benefited Party being
required to return or repay any amount received by it for its own account under
this Agreement to the Company, any Guarantor or any Affiliate thereof or their
respective representatives or successors in interest (any such Benefited Party
being an “Affected Benefited Party”), each other Benefited Party shall,
forthwith upon its receipt of a notice thereof from the Affected Benefited
Party, pay the Collateral Agent an amount for distribution to such Affected
Benefited Party such that, after giving effect to such payment and
distribution, all Benefited Parties shall have received such proportion of the
Proceeds as they would have received had the original payment which gave rise
to such Repayment Event not occurred, and


 


(z) in either case, the Collateral Agent shall thereafter apply
Proceeds received in a manner consistent with the terms of this Agreement such
that all Benefited Parties receive such proportion of the Proceeds as they
would have received had the original payment which gave rise to such Repayment
Event not occurred;


 


it
being understood that
(i) if any Benefited Party shall fail to promptly pay any such amount to the
Collateral Agent, the Collateral Agent may deduct such amount (plus any accrued
interest thereon) from any amount payable thereafter to such Benefited Party
under this Agreement and (ii) until such amount is paid in full (by deduction
or otherwise), such Benefited Party shall have no right to vote on any matter
under this Agreement (and the Benefited Obligations of such Benefited Party
shall be disregarded for purposes of clause (a) of the definition of
“Required Benefited Parties” or making any similar determination hereunder
(other than pursuant to clauses (b) and (c) of the definition of
“Required Benefited Parties”)).


 


SECTION 9.                  RELATIONSHIP AMONG THE BENEFITED PARTIES.


 


(a)           Each Benefited Party agrees that, so
long as any Benefited Obligations are outstanding, the provisions of this
Agreement shall provide the exclusive method by which any Benefited Party may exercise
rights and remedies under the Collateral Documents.  Therefore, each Benefited Party shall, for the mutual benefit of
all Benefited Parties, except as permitted under this Agreement:


 

















 


(i)            refrain from taking or filing any
action, judicial or otherwise, to enforce any right or pursue any remedy under
the Collateral Documents, except for delivering notices hereunder;


 


(ii)           refrain from accepting any other
security for, the Benefited Obligations from the Company or any Affiliate of
the Company, except for (A) Specific Collateral and (B) any security granted to
the Collateral Agent for the benefit of all Benefited Parties; and


 


(iii)          retrain from exercising any right or
remedy under the Collateral Documents which has or may have arisen or which may
arise as a result of an Event of Default or Unmatured Event of Default;


 


provided, however, that nothing contained in subsections
(i) through (iii) above shall prevent any Benefited Party from imposing a
default rate of interest in accordance with the applicable Financing Agreement
or prevent a Benefited Party from raising any defense in any action in which it
has been made a party defendant or has been joined as a third party, except
that the Collateral Agent may direct and control any defense directly relating
to the Collateral or any Collateral Documents.


 


(b)           During any Bankruptcy Proceeding with
respect to any Debtor, each Benefited Party agrees that:


 


(i)            The Collateral Agent shall represent
all Benefited Parties in connection with all matters directly relating to the
Collateral, including the use, sale or lease of Collateral, use of cash
collateral, relief from the automatic stay and adequate protection.  The Collateral Agent shall act on the
instructions of the Required Benefited Parties; provided that no such
vote by the Required Benefited Parties shall treat the holders of the Credit
Agreement Obligations differently with respect to rights in the Collateral from
the holders of the Noteholder Obligations or vice  versa.


 


(ii)           Each Benefited Party shall be free to
act independently on any issue not directly relating to the Collateral.


 


SECTION 10.            MISCELLANEOUS.


 


(a)           All notices and other communications
provided for herein shall be in writing and may be sent by overnight air
courier, facsimile communication or United States mail and shall be deemed to
have been given when delivered by overnight air courier, upon receipt of
facsimile communication or four business days after deposit in the United
States mail, registered or certified, with postage prepaid and properly
addressed.  For the purposes hereof, the
addresses of the parties hereto (until notice of a change thereof is delivered
as provided in this subsection 10(a)) shall be set forth under each
party’s name on the signature pages (including acknowledgments) hereof.  By their consent to the Collateral Agent’s
execution and delivery hereof, the Lenders acknowledge and agree that any
notice to a Lender shall be conclusively deemed to have been received
concurrently by any Affiliate of such Lender which is a Benefited Party.


 

















 


(b)           This Agreement may be amended,
modified or waived only by an instrument or instruments in writing signed by
the Administrative Agent (acting upon the direction of the Required Lenders or
such greater number of Lenders as may be required by the Credit Agreement), the
Noteholders and the Collateral Agent, and in the case of an amendment to subsection
2(c), 2(d) or 7(1), the Company and the other Debtors.


 


(c)           This Agreement shall be binding upon
and inure to the benefit of (i) the Collateral Agent and each other Benefited
Party and their respective successors and assigns and (ii) with respect to subsections
2(c), 2(d) and 7(1), each Debtor and its successors and
assigns.  If the holder of any Benefited
Obligations shall transfer such Benefited Obligations, it shall promptly so
advise the Collateral Agent.  Each
transferee of any Benefited Obligations shall take such Benefited Obligations
subject to the provisions of this Agreement and to any request made, waiver or
consent given or other action taken or authorized hereunder, by each previous
holder of such Benefited Obligations, prior to the receipt by the Collateral
Agent of written notice of such transfer; and, except as expressly otherwise
provided in such notice, the Collateral Agent shall be entitled to assume
conclusively that the transferee named in such notice shall thereafter be
vested with all rights and powers as a Benefited Party under this
Agreement.  Upon the written request of
any Benefited Party, the Collateral Agent will provide such Benefited Party
with copies of any written notices of transfer received pursuant hereto.


 


(d)           This Agreement shall continue to be
effective among the Benefited Parties even though a case or proceeding under
any bankruptcy or insolvency law or any proceeding in the nature of a
receivership, whether or not under any insolvency law, shall be instituted with
respect to the Company or any Guarantor, or any portion of the property or
assets of the Company or any Guarantor, and all actions taken by the Benefited
Parties with regard to such proceeding shall be by the Required Benefited
Parties; provided that nothing herein shall be interpreted to preclude
any Benefited Party from filing a proof of claim with respect to its Benefited
Obligations or from casting its vote, or abstaining from voting, for or against
confirmation of a plan of reorganization in its sole discretion.  Consistent with, but not in limitation of,
the foregoing, each of the Benefited Parties and, by their execution of the
Acknowledgment and Consent to Intercreditor and Collateral Agency Agreement,
each of the Company and each Guarantor, agrees and acknowledges that this
Agreement constitutes a “subordination agreement” within the meaning of both
New York law and Section 510(a) of the United States Bankruptcy Code.


 


(e)           Each Benefited Party agrees to do
such further acts and things and to execute and deliver such additional
agreements, powers and instruments as the Collateral Agent or any other
Benefited Party may reasonably request to carry into effect the terms,
provisions and purposes of this Agreement or to better assure and confirm unto
the Collateral Agent or such other Benefited Party its respective rights,
powers and remedies hereunder.


 


(f)            This Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and
the same instrument, and any of the parties hereto may execute this Agreement
by signing any such counterpart.  A
facsimile of the signature of any party on any counterpart shall be effective
as the signature of such party for purposes of the effectiveness of this
Agreement.


 

















 


(g)           This Agreement shall become effective
immediately upon execution by the parties hereto and shall continue in full
force and effect until the earliest of (i) the date on which (A) no Event of
Default or Unmatured Event of Default exists and (B) all Benefited
Parties direct the Collateral Agent to release the Collateral granted under the
Collateral Documents and (ii) 91 days following the date upon which all
Benefited Obligations are irrevocably paid in full and all commitments under
the Credit Agreement have been terminated. 
The Collateral Agent shall promptly notify each Noteholder and each
Lender of any termination of this Agreement pursuant to clause (i) of
the first sentence of this subsection (g).


 


(h)           THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE.


 


(i)            Nothing in this Agreement, in any
Guaranty or in any Collateral Document, expressed or implied, is intended or
shall be construed to confer upon or give to any Person other than the
Benefited Parties any right, remedy or claim under or by reason of any such
agreement or any covenant, condition or stipulation herein or therein
contained; provided that the Debtors are intended beneficiaries of subsections
2(c) and 2(d) and may enforce the provisions thereof against the
Collateral Agent, each Lender and each Purchaser.


 


(j)            In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.


 


(k)           Notwithstanding any other provision
of this Agreement, if at any time the Company is required to make any
prepayment of the Notes pursuant to Section 8.7 of the Note Agreement (as in
effect on the date hereof) and is required to concurrently reduce the amount of
the Benefited Obligations arising under the Credit Agreement and the
Company is not able to immediately reduce the amount of the Benefited
Obligations under the Credit Agreement to the extent required because all or a
portion of such Benefited Obligations are undrawn amounts under Letters of
Credit, then the Company may pledge cash collateral to the Benefited
Party or Benefited Parties holding such Benefited Obligations (or an agent
therefor) in an amount equal to the amount that would have been paid to such
Benefited Party or Benefited Parties if all applicable contingent Benefited
Obligations had then been due and payable (any such cash collateral so pledged,
“Specific Collateral”).  All
Specific Collateral held by any Benefited Party (or any agent therefor) shall
be applied by such Benefited Party (or such agent) to pay Benefited Obligations
arising under Letters of Credit promptly upon such Benefited Obligations
becoming due and payable (and shall not apply any other funds from the Company
or any other source to pay such amounts until the amount of Specific Collateral
held by such Benefited Party (or such agent) has been reduced to zero).  If and to the extent that any such Letter of
Credit shall expire or terminate, the amount of cash held by the applicable
Benefited Party (or the applicable agent) shall be delivered to the Collateral
Agent for redistribution to the Benefited Parties in amounts so that each
Benefited Party shall receive the amount of reduction of Benefited Obligations
it would have received if such Letter of Credit had not been outstanding on the
date of the applicable initial prepayment.


 

















 


(1)           ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT
AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE STATE OF NEW YORK OR IN THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED
THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY
BE BROUGHT, AT THE COLLATERAL AGENT’S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.  EACH OF THE COLLATERAL AGENT, THE ADMINISTRATIVE AGENT, EACH
NOTEHOLDER AND (BY ACCEPTING THE BENEFITS HEREOF) EACH OTHER BENEFITED PARTY
(A) EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE,
(B) IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK AND (C)
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF
ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM
THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


(m)          EACH OF THE COLLATERAL AGENT, THE
ADMINISTRATIVE AGENT, EACH NOTEHOLDER AND (BY ACCEPTING THE BENEFITS HEREOF)
EACH OTHER BENEFITED PARTY HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY
ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT AND
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.


 

















 


IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.


 


	
   

  	
  BANK OF AMERICA, N.A., as
  Collateral Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  231 S.  LaSalle Street

  
	
   

  	
  Chicago, IL 60697

  
	
   

  	
  Attention: David A.  Johanson, Vice President

  
	
   

  	
  Telephone: (312) 828-7933

  
	
   

  	
  Facsimile: (312)974-9102

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  231 S.  LaSalle Street

  
	
   

  	
  Chicago, IL 60697

  
	
   

  	
  Attention: David A.  Johanson, Vice President

  
	
   

  	
  Telephone: (312) 828-7933

  
	
   

  	
  Facsimile: (312) 974-9102

  
					



 

















 


[PURCHASERS]


 

















 


ACKNOWLEDGMENT OF AND CONSENT TO

INTERCREDITOR AGREEMENT


 


Each
of the undersigned hereby acknowledges receipt of the foregoing Intercreditor
Agreement, consents to the provisions thereof and agrees to subsection 7(1)
thereof.


 


	
   

  	
  TELETECH HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  TELETECH SERVICES CORPORATION

  
	
   

  	
  TELETECH CUSTOMER CARE MANAGEMENT

  (COLORADO), INC.

  
	
   

  	
  TELETECH FACILITIES MANAGEMENT

  (POSTAL CUSTOMER SUPPORT), INC.

  
	
   

  	
  TELETECH CUSTOMER CARE MANAGEMENT

  (TELECOMMUNICATIONS), INC.

  
	
   

  	
  TELETECH FINANCIAL SERVICES MANAGEMENT, LLC

  
	
   

  	
  TELETECH CUSTOMER CARE MANAGEMENT

  (CALIFORNIA), INC.

  
	
   

  	
  TELETECH CUSTOMER CARE MANAGEMENT

  (PENNSYLVANIA), LLC

  
	
   

  	
  CARABUNGA.COM, INC.

  
	
   

  	
  TELETECH CUSTOMER CARE MANAGEMENT

  (TEXAS), INC.

  
	
   

  	
  TELETECH INTERNATIONAL HOLDINGS, INC.

  
	
   

  	
  TELETECH SOUTH AMERICA HOLDINGS, INC.

  
	
   

  	
  T-TEC LABS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  NEWGEN RESULTS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
									



 

















 


	
   

  	
  TELETECH CUSTOMER
  SERVICES, INC.

  
	
   

  	
  TTEC NEVADA, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
					



 

















 


SCHEDULE 1


 


 


CASH MANAGEMENT ARRANGEMENTS


 


Cash
Management Banks 


Bank of America, N.A.


 

















 


SCHEDULE II


COLLATERAL DOCUMENTS


 


Security Agreement dated as
of October 24, 2003 among the Debtors and the Collateral Agent


 


Pledge Agreement dated as of
October 24, 2003 among the Company, various other Debtors and the Collateral
Agent


 


Deed of Trust, Security
Agreement, Assignment of Rents and Leases and Fixture Filing (Colorado) dated
as of October 24, 2003 made by TeleTech Services Corporation