Exhibit 10.2
GUARANTEE AND CONTRIBUTION AGREEMENT
(this “ Agreement ”) dated as of
October 20, 2006, among CONVERGYS CORPORATION, an Ohio
corporation (the “ Borrower ”), each of the
subsidiaries of the Borrower that is listed on Schedule I
hereto or that becomes a party hereto after the date hereof (each
such subsidiary, individually, a “ Guarantor ”
and, collectively, the “ Guarantors ”) and
JPMORGAN CHASE BANK, N.A., as administrative agent (the “
Administrative Agent ”) for the Lenders (as defined in
the Credit Agreement referred to below).
Reference is made to the Five-Year
Competitive Advance and Revolving Credit Facility Agreement dated
as of October 20, 2006 (as amended, supplemented or otherwise
modified from time to time, the “ Credit Agreement
”), among the Borrower, the lenders from time to time party
thereto (the “ Lenders ”), JPMORGAN CHASE BANK,
N.A., as Administrative Agent, CITICORP USA, INC., as Syndication
Agent, and DEUTSCHE BANK AG, NEW YORK BRANCH and PNC BANK, NATIONAL
ASSOCIATION, as Co-Documentation Agents. Capitalized terms used
herein and not defined herein shall have the meanings assigned to
such terms in the Credit Agreement.
The Lenders have agreed to make
Loans to the Borrower pursuant to, and upon the terms and subject
to the conditions specified in, the Credit Agreement. Each of the
Guarantors is a Subsidiary and acknowledges that it will derive
substantial benefit from the making of the Loans by the Lenders.
The obligations of the Lenders to make Loans are conditioned on,
among other things, the execution and delivery by the Guarantors of
a Guarantee and Contribution Agreement in the form hereof. As
consideration therefor and in order to induce the Lenders to make
Loans, the Guarantors are willing to execute this
Agreement.
Accordingly, the parties hereto
agree as follows:
SECTION 1. Guarantee. Each
Guarantor unconditionally guarantees (the ”
Guarantee ”), jointly with the other Guarantors and
severally, as a primary obligor and not merely as a surety,
(a) the due and punctual payment by the Borrower of
(i) the principal of and premium, if any, and interest
(including interest accruing during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of
whether such interest is allowed or allowable as a claim in such
proceeding) on the Loans, when and as due, whether at maturity, by
acceleration, upon one or more dates set for prepayment or
otherwise and (ii) all other monetary obligations, including
fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy,
insolvency, receivership or other similar proceeding, regardless of
whether such monetary obligations are allowed or allowable as a
claim in such proceeding), of the Borrower to the Lenders under the
Credit Agreement and the other Loan Documents, (b) the due and
punctual performance of all covenants, agreements, obligations and
liabilities of the Borrower under or pursuant to the Credit
Agreement and the other Loan Documents, (c) the due and
punctual payment and performance of all the covenants,
agreements, obligations and liabilities of each
other Guarantor under or pursuant to this Agreement and the other
Loan Documents and (d) the due and punctual payment and
performance of all obligations of the Borrower under each Hedging
Agreement entered into with any counterparty that was a Lender (or
an Affiliate thereof) at the time such Hedging Agreement was
entered into (all the monetary and other obligations described in
the preceding clauses (a) through (d) being collectively
called the “ Obligations ”). Each Guarantor
further agrees that the Obligations may be extended or renewed, in
whole or in part, without notice to or further assent from it, and
that it will remain bound upon the Guarantee notwithstanding any
extension or renewal of any Obligation.
SECTION 2. Obligations Not
Waived. To the fullest extent permitted by applicable law, each
Guarantor waives presentment to, demand of payment from and protest
to the Borrower of any of the Obligations, and also waives notice
of acceptance of the Guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the
obligations of each Guarantor hereunder shall not be affected by
(a) the failure of the Administrative Agent or any other
Lender to assert any claim or demand or to enforce or exercise any
right or remedy against the Borrower or any other Guarantor under
the provisions of the Credit Agreement, any other Loan Document or
otherwise or (b) any rescission, waiver, amendment or
modification of, or any release from any of the terms or provisions
of, this Agreement, any other Loan Document, any Guarantee or any
other agreement, including with respect to any other Guarantor
under this Agreement.
SECTION 3. Guarantee of
Payment. Each Guarantor further agrees that the Guarantee
constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by the
Administrative Agent or any other Lender to any of the security
held for payment of the Obligations or to any balance of any
deposit account or credit on the books of the Administrative Agent
or any other Lender in favor of the Borrower or any other
Person.
SECTION 4. No Discharge or
Diminishment of Guarantee. The obligations of each Guarantor
hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the
indefeasible payment in full in cash of the Obligations), including
any claim of waiver, release, surrender, alteration or compromise
of any of the Obligations, and shall not be subject to any defense
or set-off, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality or unenforceability of the
Obligations or otherwise. Without limiting the generality of the
foregoing, the obligations of each Guarantor hereunder shall not be
discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any other Lender to assert any claim or
demand or to enforce any remedy under the Credit Agreement, any
other Loan Document or any other agreement, by any law or
regulation of any jurisdiction or any other event affecting any
term of the Obligations, by any waiver or modification of any
provision of any thereof, by any default, failure or delay, wilful
or otherwise, in the performance of the Obligations, or by any
other act or omission that may or might in any manner or to any
extent vary the risk of any Guarantor or that would otherwise
operate as a discharge of each Guarantor as a matter of law or
equity (other than the indefeasible payment in full in cash of all
the Obligations) or which would impair or eliminate any right of
such Guarantor to subrogation.
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SECTION 5. Defenses of Borrower
Waived. To the fullest extent permitted by applicable law, each
of the Guarantors waives any defense based on or arising out of any
defense of the Borrower or the unenforceability of the Obligations
or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower or any other circumstances that
might constitute a defense of the Borrower or any Guarantor, other
than the indefeasible payment in full in cash of all the
Obligations. The Administrative Agent and the Lenders may, at their
election, compromise or adjust any part of the Obligations, make
any other accommodation with the Borrower or any other Guarantor or
exercise any other right or remedy available to them against the
Borrower or any other Guarantor, without affecting or impairing in
any way the liability of any Guarantor hereunder except to the
extent that all the Obligations have been indefeasibly paid in full
in cash. Pursuant to applicable law, each of the Guarantors waives
any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to
extinguish any right of reimbursement or subrogation or other right
or remedy of such Guarantor against the Borrower or any other
Guarantor.
SECTION 6. Agreement to Pay.
In furtherance of the foregoing and not in limitation of any other
right that the Administrative Agent or any other Lender has at law
or in equity against any Guarantor by virtue hereof, upon the
failure of the Borrower or any other Guarantor to pay any
Obligation when and as the same shall become due, whether at
maturity, by acceleration, after notice of prepayment or otherwise,
each Guarantor hereby promises to and will forthwith pay, or cause
to be paid, to the Administrative Agent or such other Lender as
designated thereby in cash the amount of such unpaid
Obligations.
SECTION 7. Indemnity and
Subrogation. In addition to all such rights of indemnity and
subrogation as the Guarantors may have under applicable law (but
subject to Section 9), the Borrower agrees that in the event a
payment shall be made by any Guarantor under this Agreement, the
Borrower shall indemnify such Guarantor for the full amount of such
payment and, until such indemnification obligation shall have been
satisfied, such Guarantor shall be subrogated to the rights of the
person to whom such payment shall have been made to the extent of
such payment.
SECTION 8. Contribution and
Subrogation. Each Guarantor (a “ Contributing
Guarantor ”) agrees (subject to Section 9) that, in
the event a payment shall be made by any other Guarantor under this
Agreement, and such other Guarantor (the “ Claiming
Guarantor ”) shall not have been fully indemnified by the
Borrower as provided in Section 7, the Contributing Guarantor
shall, to the extent the Claiming Guarantor shall not have been so
indemnified by th
