Exhibit 4.3(p)
GUARANTEE AND COLLATERAL AMENDMENT AND CONFIRMATION
GUARANTEE AND COLLATERAL AMENDMENT AND CONFIRMATION, dated as of November
21, 2001 (this "Amendment"), to the Guarantee and Collateral Agreement, dated as
of May 6, 1997 (as further amended, supplemented or otherwise modified from time
to time, the "Guarantee and Collateral Agreement") made by each of the
signatories thereto in favor of JPMORGAN CHASE BANK (formerly known as The Chase
Manhattan Bank), as Administrative Agent (in such capacity, the "Administrative
Agent"), for the benefit of the Lenders under the Credit Agreement referred to
below.
W I T N E S S E T H:
WHEREAS, pursuant to the Credit Agreement, dated as of May 6, 1997 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement" ) among TELEX COMMUNICATIONS, INC., a Delaware corporation ("Telex"
or the "Borrower"), the Administrative Agent, the several banks and other
financial institutions from time to time parties thereto (the "Lenders"), and
Xxxxxx Xxxxxxx Senior Funding, Inc., as documentation agent for the Lenders (in
such capacity, the "Documentation Agent"), the Lenders have made extensions of
credit to, or for the benefit of, the Borrower upon the terms and subject to the
conditions set forth therein;
WHEREAS, the Lenders, the Borrower and the Administrative Agent are
simultaneously herewith executing and delivering a Waiver, Amendment No. 5,
Agreement and Consent, dated as of the date hereof ("Amendment No. 5"), to the
Credit Agreement pursuant to which the Lenders are agreeing to waive certain
Events of Default and amend and modify the Credit Agreement in certain respects;
WHEREAS, each of the Borrower and Telex Communications International, Ltd.
(each, a "Confirming Party") is a party to the Guarantee and Collateral
Agreement and wishes to acknowledge and confirm that, after giving effect to all
and any amendments to the Credit Agreement pursuant to Amendment No. 5, its
payment and performance obligations, and the Liens and security interests
created, under the Guarantee and Collateral Agreement continue in full force and
effect, unimpaired and undischarged;
WHEREAS, it is a condition to the effectiveness of Amendment No. 5 that
the parties hereto execute and deliver this Amendment to amend the terms of the
Guarantee and Collateral Agreement;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, each
Confirming Party, the Lenders and the Administrative Agent hereby agree as
follows:
1. Defined Terms. Capitalized terms used herein and not otherwise defined
are used herein as defined in the Guarantee and Collateral Agreement.
2. Amendment.
2A. Amendment to Subsection 1.1. (a) Subsection 1.1(a) is hereby
amended by deleting said subsection and substituting in lieu thereof the
following:
(a) Definitions. Unless otherwise defined herein, terms
defined in the Credit Agreement and used herein shall have the
meanings given to them in the Credit Agreement, and the following
terms which are defined in the Code (as defined below) are used
herein as so defined: Certificated Security, Chattel Paper,
Commercial Tort Claims, Deposit Accounts, Documents, Equipment, Farm
Products, Fixtures, General Intangibles, Instruments, Inventory,
Investment Property and Letter of Credit Rights and Supporting
Obligations.
(b) Subsection 1.1(b) of the Guarantee and Collateral
Agreement is hereby amended by deleting the defined term "General
Intangibles".
2B. Section 3 of the Guarantee and Collateral Agreement is hereby
amended by adding after the phrase "(a) all Accounts;" the phrase "all
Commercial Tort Claims; all Deposit Accounts; all Investment Property; all
Letters of Credit Rights; all Supporting Obligations; all other property
not otherwise described below".
2C. Subsection 4.2.3 of the Guarantee and Collateral Agreement is
hereby amended by deleting said subsection and substituting in lieu
thereof the following:
Chief Executive Office. On November 21, 2001, such
Xxxxxxx's jurisdiction of organization, identification number
from the jurisdiction of organization (if any) and the
location of such Grantor's chief executive office or sole
place of business are specified on Schedule 3. Such Guarantor
has furnished to the Administrative Agent a long-form good
standing certificate as of a date which is recent to the date
hereof.
2D. Subsection 5.2.1 of the Guarantee and Collateral Agreement is
hereby amended by deleting said subsection and substituting in lieu
thereof the following:
Delivery of Instruments, Certificated Securities and
Chattel Paper. If any amount payable under or in connection
with any of such Grantor's Collateral shall be or become
evidenced by any Instrument, Certificated Security or Chattel
Paper, such Instrument, Certificated Security or Chattel Paper
shall be promptly delivered to the Administrative Agent, duly
indorsed in a manner satisfactory to the Administrative Agent,
to be held as Collateral pursuant to this Agreement.
2E. Subsection 5.2.4(c) of the Guarantee and Collateral Agreement is
hereby amended by deleting said subsection and substituting in lieu
thereof the following:
At any time and from time to time, upon the written
request of the Administrative Agent, and at the sole expense
of such Grantor, such Grantor will promptly and duly execute
and deliver and record such
2
further instruments and documents and take such further
actions as the Administrative Agent may reasonably request for
the purpose of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted by
such Grantor, including, without limitation, (i) the filing of
any financing or continuation statements under the Uniform
Commercial Code (or other similar laws) in effect in any
jurisdiction with respect to the security interests created
hereby and (ii) in the case of Investment Property, Deposit
Accounts, Letter of Credit Rights and any other relevant
Collateral, taking any actions necessary to enable the
Administrative Agent to obtain "control" (within the meaning
of the applicable Uniform Commercial Code) with respect
thereto.
2F. Subsection 5.2.5 of the Guarantee and Collateral Agreement is
hereby amended by deleting said subsection and substituting in lieu
thereof the following:
Changes in Locations, Name, etc. Such Grantor will not, except
upon not less than 30 days' prior written notice to the
Administrative Agent and delivery to the Administrative Agent
of (a) all additional executed financing statements and other
documents reasonably requested by the Administrative Agent to
maintain the validity, perfection and priority of the security
interests provided for herein and (b) if applicable, a written
supplement to Schedule 4 showing any additional location at
which such Grantor's Inventory or Equipment shall be kept:
(a) permit any of such Grantor's Inventory or
Equipment to be kept at a location other than
location(s) applicable to such Grantor listed on
Schedule 4 (other than Inventory or Equipment
being conveyed, sold, leased, assigned,
transferred or otherwise disposed of as permitted
by the Credit Agreement);
(b) change its jurisdiction of organization or the
location of its chief executive office or sole
place of business from that referred to in Section
4.2.3; or
(c) change its name.
2G. Subsection 7.3 of the Guarantee and Collateral Agreement is
hereby amended by deleting said subsection and substituting in lieu
thereof the following:
Execution of Financing Statements. Pursuant to any applicable
law, each Granting Party authorizes the Administrative Agent
to file or record financing statements and other filing or
recording documents or instruments with respect to such
Granting Party's Collateral without the signature of such
Granting Party in such form and in such offices as the
Administrative Agent reasonably determines appropriate to
perfect the security interests of the Administrative Agent
under this Agreement. Each Granting Party authorizes the
Administrative Agent to use the collateral description "all
personal property" in any such financing statements. Each
Granting Party hereby ratifies and authorizes the filing by
the
3
Administrative Agent of any financing statement with respect
to the Collateral made prior to the date hereof.
3. Confirmation.
3A. Each party hereto hereby consents to the execution, delivery and
performance of the Credit Agreement and Amendment No. 5. Each Confirming Party
agrees that:
(i) all of its obligations, liabilities and indebtedness
(including guarantee obligations) under the Guarantee and
Collateral Agreement remain in full force and effect on a
continuous basis pursuant to the Credit Agreement;
(ii) all of the Liens and security interests created and arising
under the Guarantee and Collateral Agreement remain in full
force and effect on a continuous basis as collateral security
for the Obligations of such Confirming Party under the
Guarantee and Collateral Agreement;
(iii) all of the obligations, liabilities and indebtedness of the
Confirming Parties under the Credit Agreement (which
incorporates all amendments and waivers provided for in
Amendment No. 5) and the other Loan Documents are continued in
full force and effect on a continuous basis; and
(iv) the perfected status and priority of each Lien and security
interest created under the Guarantee and Collateral Agreement
continue in full force and effect on a continuous basis,
unimpaired, uninterrupted and undischarged as collateral
security for the Obligations of such Confirming Party under
the Guarantee and Collateral Agreement.
3B. Each Confirming Party confirms all of its payment and performance
obligations under the Guarantee and Collateral Agreement, as amended and
confirmed hereby.
3C. Each Confirming Party agrees that it shall take any action reasonably
requested by the Administrative Agent in order to confirm or effect the intent
of this Confirmation.
3D. This Amendment shall be governed by, and construed and interpreted in
accordance with, the law of the State of New York.
4
3E. This Amendment may be executed by one or more of the parties hereto on
any number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
4. Holdings. Notwithstanding anything to the contrary contained in the
Guarantee and Collateral Agreement, as amended hereby, the Credit Agreement or
any Loan Document, the Administrative Agent, on behalf of the Lenders, agrees
that Telex Communications Group, Inc., a Delaware corporation ("Holdings"),
shall not have any liability or obligation whatsoever to the Lenders under the
Guarantee and Collateral Agreement, as amended hereby, the Credit Agreement or
any Loan Document and shall not be deemed to be a party to the Guarantee and
Collateral Agreement, as amended hereby, the Credit Agreement or any Loan
Document after the date hereof.
5. Security Documents. Notwithstanding anything to the contrary contained
in the Guarantee and Collateral Agreement, as amended hereby, the Credit
Agreement or any Loan Document, the Administrative Agent, on behalf of the
Lenders, agrees that (i) the New Telex Subordinated Notes (as defined in
Amendment No. 5), the Preferred Stock (as defined in Amendment No. 5) or common
stock and the warrants to purchase Preferred Stock or common stock of the
Borrower to be issued in connection with the Telex Exchange (as defined in
Amendment No. 5) and (ii) the registered securities substantially identical to
the New Telex Subordinated Notes, the Preferred Stock or common stock and
warrants to purchase Preferred Stock or common stock of the Borrower to be
issued in exchange for the New Telex Subordinated Notes, the Preferred Stock or
common stock and the warrants to purchase Preferred Stock or common stock
pursuant to the registration obligations of the Borrower under the Telex
Exchange, in each case, shall not be subject to the Guarantee and Collateral
Agreement, as amended hereby, or any of the Security Documents or the Liens
created thereunder.
6. Schedules. The Schedules to the Guarantee and Collateral Agreement are
hereby amended by deleting the said Schedules and substituting in lieu thereof
the Schedules attached hereto as Exhibit A.
5
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
executed and delivered by a duly authorized officer on the date first above
written.
TELEX COMMUNICATIONS, INC.
By: /S/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Financial Officer
TELEX COMMUNICATIONS INTERNATIONAL, LTD.
By: /S/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Chief
Financial Officer
XX XXXXXX XXXXX BANK,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
6
