Limited Guarantee,
dated as of September [_], 2008 (this “ Limited
Guarantee ”), by [
] (the “ Guarantor ”), in favor of eTelecare
Global Solutions, Inc., a Philippines corporation (the “
Guaranteed Party ”). Capitalized terms used but not
defined herein have the meanings ascribed to them in the
Acquisition Agreement.
1.
LIMITED GUARANTEE . To induce the Guaranteed Party to enter
into an Acquisition Agreement dated as of September [_], 2008 (as
amended, amended and restated, supplemented or otherwise modified
from time to time, the “ Acquisition Agreement
”) between the Guaranteed Party and [
], a Delaware limited liability company (“ Purchaser
”), pursuant to which Purchaser has agreed, among other
things and subject to the terms and conditions of the Acquisition
Agreement, to commence a tender offer to purchase all of the
Guaranteed Party’s issued and outstanding common shares, par
value PhP2.00 per share. listed on the Philippine Stock Exchange,
Inc. and all of the Guaranteed Party’s issued and outstanding
American Depository Shares traded on the Nasdaq Global Market (the
“ Acquisition ”), the Guarantor hereby
absolutely, unconditionally and irrevocably guarantees to the
Guaranteed Party, the due and punctual payment of (i) 50% of
the payment obligations of Purchaser with respect to the
Termination Fee payable by Purchaser, if and when due pursuant to
Section 5.5 of the Acquisition Agreement, and (ii) 50%
of the Purchaser’s obligations for breach of the Acquisition
Agreement, in each case subject to the terms and limitations of
Section 5.5 and Section 6.13 of the
Acquisition Agreement ((i) and (ii) together, the “
Obligation ”); provided that the maximum amount
payable by the Guarantor hereunder shall not in any event exceed $[
] in the aggregate (the “ Cap ”), it being
understood that this Limited Guarantee may not be enforced without
giving effect to the Cap.
2.
NATURE OF GUARANTEE . The Guaranteed Party shall not be
obligated to file any claim relating to the Obligation in the event
that Purchaser becomes subject to a bankruptcy, reorganization or
similar proceeding, and the failure of the Guaranteed Party to so
file shall not affect the Guarantor’s obligations hereunder.
In the event that any payment to the Guaranteed Party hereunder is
rescinded or must otherwise be returned for any reason whatsoever,
the Guarantor shall remain liable hereunder as if such payment had
not been made (subject to the terms hereof). This is an
unconditional guarantee of payment and not of
collectibility.
3.
CHANGES IN OBLIGATIONS, CERTAIN WAIVERS . The Guarantor
agrees that the obligations of the Guarantor hereunder shall not be
released or discharged, in whole or in part, or otherwise affected
by (a) the failure of the Guaranteed Party to assert any claim
or demand or to enforce any right or remedy against Purchaser or
any other person interested in the transactions contemplated by the
Acquisition Agreement (including any other guarantor pursuant to a
limited guarantee dated as of the date hereof to be entered into
between the Guaranteed Party and such other guarantor (the “
Other Guarantor ”); (b) any insolvency,
bankruptcy, reorganization or other similar proceeding affecting
Purchaser or any other person interested in the transactions
contemplated by the Acquisition Agreement (including the Other
Guarantor); (c) the existence of any claim, set-off or other
right which the Guarantor may have at any time against Purchaser or
the Guaranteed Party, whether in connection with the
Obligation
or otherwise;
or (d) the adequacy of any other means the Guaranteed Party
may have of obtaining repayment of any of the Obligation. To the
fullest extent permitted by Law, the Guarantor hereby expressly
waives any and all rights or defenses arising by reason of any Law
which would otherwise require any election of remedies by the
Guaranteed Party. The Guarantor waives promptness, diligence,
notice of the acceptance of this Limited Guarantee and of the
Obligation, presentment, demand for payment, notice of
non-performance, default, dishonor and protest, notice of the
Obligation incurred and all other notices of any kind (except for
notices to be provided to Purchaser and its counsel Weil, Gotshal
& Manges LLP in accordance with Section 6.6 of the
Acquisition Agreement), all defenses which may be available by
virtue of any valuation, stay, moratorium law or other similar Law
now or hereafter in effect, any right to require the marshalling of
assets of Purchaser or any other person interested in the
transactions contemplated by the Acquisition Agreement (including
the Other Guarantor), and all suretyship defenses generally (other
than fraud or willful misconduct by the Guaranteed Party or any of
its subsidiaries or affiliates, or defenses to the payment of the
Obligation under the Acquisition Agreement that are available to
Purchaser for breach by the Guaranteed Party of this Limited
Guarantee). The Guarantor acknowledges that it will receive
substantial direct and indirect benefits from the transactions
contemplated by the Acquisition Agreement and that the waivers set
forth in this Limited Guarantee are knowingly made in contemplation
of such benefits.
The
Guaranteed Party hereby covenants and agrees that it shall not
institute, and shall cause its subsidiaries and affiliates not to
institute, any proceeding or bring any other claim arising under,
or in connection with, the Acquisition Agreement or the
transactions contemplated thereby, against any Guarantor Affiliate
or Purchaser Affiliate (as defined below) except for claims against
the Guarantor under this Limited Guarantee and against the Other
Guarantor under its written limited guarantee delivered
contemporaneously herewith, and the Guarantor hereby covenants and
agrees that it shall not institute, and shall cause its
subsidiaries and Affiliates not to institute, any proceeding
asserting that this Limited Guarantee is illegal, invalid or
unenforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar Laws affecting creditors’ rights
generally, and general equitable principles (whether considered in
a proceeding in equity or at Law); provided however ,
this Limited Guarantee shall not limit the remedies provided for in
Section 6.13(b) of the Acquisition Agreement.
Notwithstanding anything to the contrary contained in this Limited
Guarantee, the Guaranteed Party hereby agrees that to the extent
Purchaser is relieved of its obligations under the Acquisition
Agreement, the Guarantor shall be similarly relieved of its
obligations under this Limited Guarantee.
4.
NO WAIVER . No failure on the part of the Guaranteed Party
to exercise, and no delay in exercising, any right, remedy or power
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise by the Guaranteed Party of any right, remedy or
power hereunder preclude any other or future exercise of any right,
remedy or power.
5.
REPRESENTATIONS AND WARRANTIES . The Guarantor hereby
represents and warrants that:
(a)
the execution, delivery and performance of this Limited Guarantee
have been duly authorized by all necessary action and do not
contravene any provision of
2
the
Guarantor’s charter, partnership agreement, operating
agreement or similar organizational documents or any Law,
regulation, rule, decree, order, judgment or contractual
restriction binding on the Guarantor or its assets;
(b)
all consents, approvals, authorizations, permits of, filings with
and notifications to, any governmental authority necessary for the
due execution, delivery and performance of this Limited Guarantee
by the Guarantor have been obtained or made and all conditions
thereof have been duly complied with, and no other action by, and
no notice to or filing with, any governmental authority or
regulatory body is required in connection with the execution,
delivery or performance of this Limited Guarantee;
(c)
this Limited Guarantee constitutes a legal, valid and binding
obligation of the Guarantor enforceable against the Guarantor in
accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors’ rights
generally, and (ii) general equitable principles (whether
considered in a proceeding in equity or at Law); and
(d)
the Guarantor has the financial capacity to pay and perform its
obligations under this Limited Guarantee, and all funds necessary
for such
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