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EXHIBIT 10
AMENDMENT XX. 0
XXXXXXXXX XX. 0, dated as of January 30, 1998 (this " Amendment"), to
the Credit Agreement, dated as of May 6, 1997 (the "Telex Credit Agreement"),
among TELEX COMMUNICATIONS, INC., a Delaware corporation ("Telex" or the
"Borrower"), the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), XXXXXX XXXXXXX SENIOR FUNDING, INC., as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent"), and THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders (in such capacity, the "Administrative
Agent").
W I T N E S S E T H:
WHEREAS, pursuant to the Telex Credit Agreement, the Lenders have
agreed to make, and have made, certain loans and other extensions of credit to
Telex;
WHEREAS, pursuant to the Credit Agreement, dated as of February 10,
1997 (as amended, supplemented or otherwise modified, the "EVI Credit
Agreement"), among EV International, Inc., a Delaware corporation ("EVI"), the
several banks and other financial institutions from time to time parties
thereto (the "EVI Lenders") and The Chase Manhattan Bank, as administrative
agent for the Lenders thereunder, the EVI Lenders agreed to make, and have
made, certain loans and other extensions of credit to EVI;
WHEREAS, pursuant to an Exchange Agreement and Plan of Merger, dated
as of January 30, 1998 (together with all other documents delivered in
connection therewith, the "Telex/EVI Merger Documents"), EVI Audio Holding,
Inc., a Delaware corporation ("EVI Holdings") and the direct parent of EVI, and
Telex Communications Group, Inc., a Delaware corporation ("Holdings") and the
direct parent of Telex, desire to effectuate a transaction pursuant to which
first, all of the Capital Stock of EVI Holdings will be contributed to Holdings
in exchange for like Capital Stock of Holdings (the "Exchange") and second, EVI
Holdings will merge with and into Holdings (the "Holding Company Merger"), with
Holdings continuing as the surviving corporation;
WHEREAS, pursuant to the Telex/EVI Merger Documents, EVI and Telex
desire to effectuate a merger (the " Borrower Merger"; the Borrower Merger
collectively with the Holding Company Merger, the "Telex/EVI Mergers") of Telex
with and into EVI, with EVI continuing as the surviving corporation, becoming a
wholly-owned subsidiary of Holdings and changing its name to Telex
Communications, Inc.;
WHEREAS, as a result of the Borrower Merger, EVI will assume all of
the obligations of Telex under the Telex Credit Agreement by operation of law
and become the borrower under the Telex Credit Agreement;
WHEREAS, as a result of the Borrower Merger, each of the Subsidiaries
of Telex will become Subsidiaries of EVI;
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WHEREAS, in connection with the Telex/EVI Mergers, all of the amounts
outstanding under the EVI Credit Agreement will be paid in full and the EVI
Credit Agreement will be terminated and such indebtedness and other amounts
will be replaced or refunded with indebtedness incurred from time to time under
the Telex Credit Agreement;
WHEREAS, in connection with the Telex/EVI Mergers, Telex and EVI have
requested, and, upon this Amendment becoming effective, the Lenders have
agreed, that certain provisions of the Telex Credit Agreement be amended in the
manner provided for in this Amendment.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Telex Credit Agreement
and used herein shall have the meanings given to them in the Telex Credit
Agreement.
2. Amendments to Subsection 1.1. (a) Subsection 1.1 of the
Telex Credit Agreement is hereby amended by deleting therefrom the definitions
of the following defined terms in their respective entireties and inserting in
lieu thereof the following new definitions:
""Consolidated EBITDA": for any period, Consolidated Net
Income for such period adjusted to exclude the following items
(without duplication) of income or expense to the extent that such
items are included in the calculation of Consolidated Net Income: (a)
Consolidated Interest Expense, (b) any non-cash expenses and charges,
(c) total income tax expense, (d) depreciation expense, (e) the
expense associated with amortization of intangible and other assets
(including amortization or other expense recognition of any costs
associated with asset write-ups in accordance with APB Nos. 16 and
17), (f) non-cash provisions for reserves for discontinued operations,
(g) any gain or loss associated with the sale or write-down of assets
not in the ordinary course of business, (h) all cash expenses relating
to the Transactions, (i) any income or loss accounted for by the
equity method of accounting (except in the case of income to the
extent of the amount of cash dividends or cash distributions paid to
the Borrower or any of its Subsidiaries by the entity accounted for by
the equity method of accounting), (j) except for purposes of
calculating "Excess Cash Flow", cash payments made to GSCP permitted
by subsection 8.10(ii) hereof for the rendering of management
consulting or financial advisory services, (k) except for purposes of
calculating "Excess Cash Flow", cash payments made to management in
respect of special bonuses (to the extent not prohibited pursuant to
subsection 8.18) in accordance with the terms of their respective
employment agreements or otherwise, and (l) all nonrecurring
restructuring or other charges and transaction fees relating to the
Telex/EVI Mergers, including any such nonrecurring charges which may
reasonably be classified as restructuring charges but are not
classified as restructuring charges under GAAP. For the avoidance of
doubt, Consolidated EBITDA shall be determined on a pro forma basis
for any period prior to the Telex/EVI Mergers to include in the
calculation thereof the EBITDA of EVI and its Subsidiaries."
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(b) Subsection 1.1 of the Telex Credit Agreement is hereby amended by
inserting the following new definitions in the appropriate alphabetical order:
""Amendment": Amendment No. 1, dated as of January 30, 1998,
to this Agreement.
"Borrower Merger": the merger of the Borrower with and into
EVI, with EVI continuing as the surviving corporation and changing its
name to Telex Communications, Inc. and becoming the Borrower
hereunder.
"EVI": EV International, Inc., a Delaware corporation.
"EVI Senior Subordinated Indenture": the Indenture, dated as
of March 24, 1997, between EVI and The Bank of New York, as trustee,
as the same may be amended, supplemented or otherwise modified in
accordance with the terms of this Agreement, pursuant to which the EVI
Senior Subordinated Notes were issued.
"EVI Senior Subordinated Notes": the notes issued under the
EVI Senior Subordinated Indenture.
"EVI Senior Subordinated Notes Documents": the collective
reference to the EVI Senior Subordinated Notes and the EVI Senior
Subordinated Indenture and each of the other instruments and documents
executed and delivered pursuant to any of the foregoing, as the same
may be amended, supplemented, waived or otherwise modified from time
to time in accordance with subsection 8.12 to the extent applicable;
individually an " EVI Senior Subordinated Note Document."
"Exchange": the contribution of all of the Capital Stock of
EVI Holdings to Holdings in exchange for like Capital Stock of
Holdings.
"Holding Company Merger": the merger, following the Exchange,
of EVI Holdings with and into Holdings, with Holdings continuing as
the surviving corporation.
"Telex/EVI Mergers": the collective reference to the Borrower
Merger, the Exchange and the Holding Company Merger."
3. Amendment to Subsection 3.1. Subsection 3.1 of the Telex
Credit Agreement is hereby amended by deleting the amount "$10,000,000" each
place it appears therein and inserting in lieu thereof the amount
"$15,000,000".
4. Amendments to Subsection 8.1. (a) Subsection 8.1(a) of the
Telex Credit Agreement is hereby amended by deleting the table set forth at the
end of thereof in its entirety and inserting in lieu thereof the following new
table:
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"Date Amount
---- ------
March 31, 1998 $52,000,000
June 30, 1998 $52,000,000
September 30, 1998 $52,000,000
December 31, 1998 $52,000,000
March 31, 1999 $54,000,000
June 30, 1999 $54,000,000
September 30, 1999 $58,000,000
December 31, 1999 $62,000,000
March 31, 2000 $66,000,000
June 30, 2000 $66,000,000
September 30, 2000 $70,000,000
December 31, 2000 $70,000,000
March 31, 2001 $74,000,000
June 30, 2001 $74,000,000
September 30, 2001 $78,000,000
December 31, 2001 $78,000,000
March 31, 2002 $82,000,000
June 30, 2002 $82,000,000
September 30, 2002 $86,000,000
December 31, 2002 $86,000,000
March 31, 2003 $90,000,000
June 30, 2003 $90,000,000
September 30, 2003 $94,000,000
December 31, 2003 $94,000,000
March 31, 2004 $98,000,000
June 30, 2004 $98,000,000
September 30, 2004 $102,000,000
December 31, 2004 $102,000,000"
(b) Subsection 8.1(b) of the Telex Credit Agreement is hereby amended
by deleting the table set forth at the end of thereof in its entirety and
inserting in lieu thereof the following new table:
"Date Ratio
---- -----
September 30, 1998 1.0 to 1
December 31, 1998 1.0 to 1
March 31, 1999 1.0 to 1
June 30, 1999 1.0 to 1
September 30, 1999 1.0 to 1
December 31, 1999 1.05 to 1
March 31, 2000 1.05 to 1
June 30, 2000 1.05 to 1
September 30, 2000 1.05 to 1
December 31, 2000 1.05 to 1
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"Date Ratio
----- -----
March 31, 2001 1.05 to 1
June 30, 2001 1.05 to 1
September 30, 2001 1.05 to 1
December 31, 2001 1.10 to 1
March 31, 2002 1.10 to 1
June 30, 2002 1.10 to 1
September 30, 2002 1.10 to 1
December 31, 2002 1.10 to 1
March 31, 2003 1.10 to 1
June 30, 2003 1.10 to 1
September 30, 2003 1.10 to 1
December 31, 2003 1.10 to 1
March 31, 2004 1.10 to 1
June 30, 2004 1.10 to 1
September 30, 2004 1.10 to 1
December 31, 2004 1.10 to 1"
(c) Subsection 8.1(c) of the Telex Credit Agreement is hereby amended
by deleting the table set forth at the end of thereof in its entirety and
inserting in lieu thereof the following new table:
"Date Ratio
---- -----
March 31, 1998 6.75 to 1
June 30, 1998 6.75 to 1
September 30, 1998 6.50 to 1
December 31, 1998 6.50 to 1
March 31, 1999 6.00 to 1
June 30, 1999 6.00 to 1
September 30, 1999 6.00 to 1
December 31, 1999 6.00 to 1
March 31, 2000 5.50 to 1
June 30, 2000 5.50 to 1
September 30, 2000 5.50 to 1
December 31, 2000 5.50 to 1
March 31, 2001 5.25 to 1
June 30, 2001 5.25 to 1
September 30, 2001 5.25 to 1
December 31, 2001 5.25 to 1
March 31, 2002 5.00 to 1
June 30, 2002 5.00 to 1
September 30, 2002 5.00 to 1
December 31, 2002 5.00 to 1
March 31, 2003 4.50 to 1
June 30, 2003 4.50 to 1
September 30, 2003 4.50 to 1
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"Date Ratio
----- -----
December 31, 2003 4.50 to 1
March 31, 2004 4.00 to 1
June 30, 2004 4.00 to 1
September 30, 2004 4.00 to 1
December 31, 2004 4.00 to 1"
5. Amendments to Subsection 8.2. (a) Subsection 8.2 of the
Telex Credit Agreement is hereby amended by deleting clause (b) thereof in its
entirety and inserting in lieu thereof the following new clause (b):
"(b) Indebtedness under the Senior Subordinated Indenture or
evidenced by the Senior Subordinated Notes or under the EVI Senior
Subordinated Indenture or evidenced by the EVI Senior Subordinated
Notes; provided that such Indebtedness shall not be extended, renewed,
replaced, refinanced or otherwise amended, except as otherwise
permitted by subsection 8.12(c);".
(b) Subsection 8.2 of the Telex Credit Agreement is hereby amended by
deleting the amount "$3,000,000" from clause (m) thereof and inserting in lieu
thereof the amount "$4,000,000".
6. Amendment to Subsection 8.3. Subsection 8.3 of the Telex
Credit Agreement is hereby amended by deleting the amount "$3,000,000" from
clause (j) thereof and inserting in lieu thereof the amount "$4,000,000".
7. Amendment to Subsection 8.4. Subsection 8.4 of the Telex
Credit Agreement is hereby amended by inserting the following new clause (o) at
the end thereof:
"(o) Guarantee Obligations made by the Borrower or any of its
Subsidiaries to enable customers of the Borrower or any of its
Subsidiaries to obtain financing for the purchase of goods or services
of the Borrower or any of its Subsidiaries, provided that the
aggregate amount of all such Guarantee Obligations shall not at any
one time exceed $1,000,000."
8. Amendment to Subsection 8.5. Subsection 8.5 of the Telex
Credit Agreement is hereby amended by inserting the following new clause (d) at
the end thereof:
"(d) the Telex/EVI Mergers."
9. Amendment to Subsection 8.6. Subsection 8.6 of the Telex
Credit Agreement is hereby amended by deleting clause (h) therefrom in its
entirety and inserting in lieu thereof the following new clause (h):
"(h) (i) the sale of the Borrower's XxXxxxx, Minnesota
facility, (ii) the sale of all or any part of the assets or Capital
Stock of the Subsidiary or Subsidiaries comprising the Borrower's
military antennae business, (iii) the sale of the vacant land
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owned by the Borrower in Burnsville, Minnesota, (iv) the sale of the
Borrower's Oklahoma City, Oklahoma facility, (v) the sale of the
Borrower's Sun Valley, California facility, (vi) the sale of
Borrower's Sylmar, California facility and/or (vii) the sale of all or
any part of the assets or Capital Stock of the Subsidiary or
Subsidiaries comprising the Borrower's amateur antennae business,
provided that an amount equal to 100% of the Net Cash Proceeds of any
such Asset Sale (less the Reinvested Amount with respect thereto) is
applied in accordance with subsection 4.4(d)."
10. Amendments to Subsection 8.7. (a) Subsection 8.7 of the
Telex Credit Agreement is hereby amended by deleting clause (b) thereof in its
entirety and inserting in lieu thereof the following new clause (b):
"(b) (i) the Borrower may pay cash dividends in an amount
sufficient to allow Holdings to pay all fees and expenses incurred in
connection with the Recapitalization, the issuance of the Senior
Subordinated Notes and the transactions expressly contemplated by this
Agreement and the other Loan Documents as of the Effective Date in an
aggregate amount which shall not exceed $32,800,000, and (ii) the
Borrower may pay cash dividends in an amount sufficient to allow
Holdings to pay all fees and expenses incurred in connection with (w)
the solicitation of consents to the Telex/EVI Mergers and the
Amendment from the Lenders, (x) the solicitation of consents to
amendments to the Senior Subordinated Notes and the EVI Senior
Subordinated Notes in connection with the Telex/EVI Mergers from the
holders of the Senior Subordinated Notes and the holders of the EVI
Senior Subordinated Notes, (y) the legal fees related to the Telex/EVI
Mergers, the Amendment and the solicitations of such consents and (z)
all fees and expenses related to any fairness opinion obtained in
connection with the Telex/EVI Mergers, in an aggregate amount which,
together with all other such fees and expenses of the Borrower in
connection with the transactions expressly contemplated by the
Amendment, shall not exceed $4,000,000 (exclusive of any such fees and
costs associated with obtaining any such consents from such holders of
the Senior Subordinated Notes and the EVI Senior Subordinated Notes);"
(b) Subsection 8.7 of the Telex Credit Agreement is hereby amended by
deleting clause (e) thereof in its entirety and inserting in lieu thereof the
following new clause (e):
"(e) the Borrower may pay cash dividends in amount sufficient
to allow Holdings to repurchase shares of its common stock or rights,
options or units in respect thereof from directors, officers or
employees of Holdings and its Subsidiaries (but not from Greenwich II
or any member of the GSCP Group) for an aggregate purchase price not
to exceed $750,000."
11. Amendment to Subsection 8.8. Subsection 8.8 of the Telex
Credit Agreement is hereby amended by deleting the table set forth therein in
its entirety and inserting in lieu thereof the following new table:
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"Test Period Amount
----------- ------
Effective Date - March 31, 1998 $11,000,000
April 1, 1998 - March 31, 1999 $11,000,000
April 1, 1999 - March 31, 2000 $13,000,000
April 1, 2000 - March 31, 2001 $13,000,000
April 1, 2001 - March 31, 2002 $14,000,000
April 1, 2002 - March 31, 2003 $15,000,000
April 1, 2003 - March 31, 2004 $15,000,000
April 1, 2004 - March 31, 2005 $15,000,000"
12. Amendment to Subsection 8.9. Subsection 8.9 of the Telex
Credit Agreement is hereby amended by deleting the amount "$5,000,000"
contained in clause (k) thereof and inserting in lieu thereof the amount
"$7,500,000".
13. Amendment to Subsection 8.12. Subsection 8.12 of the Telex
Credit Agreement is hereby amended by deleting such subsection in its entirety
and inserting in lieu thereof the following new subsection 8.12:
"8.12 Limitation on Optional Payments and Modifications of
Debt Instruments and Other Documents. (a) Make any repurchase (other
than by an exchange which would be permitted under subsection 8.12(c))
or redemption of any of the Senior Subordinated Notes or the EVI
Senior Subordinated Notes, including, without limitation, any payments
on account of, or for a sinking or other analogous fund for, the
repurchase, redemption, defeasance or other acquisition thereof,
except mandatory payments of principal, interest, fees and expenses
required by the terms of the Senior Subordinated Notes and the Senior
Subordinated Note Indenture, as the case may be, or the EVI Senior
Subordinated Notes and the EVI Senior Subordinated Note Indenture, as
the case may be, respectively, only to the extent permitted under the
subordination provisions, if any, applicable thereto.
(b) In the event of the occurrence of a Change of Control,
repurchase the Senior Subordinated Notes or the EVI Senior
Subordinated Notes or any portion of either thereof, unless the
Borrower shall have (i) made payment in full of the Loans, all
Reimbursement Obligations and any other amounts then due and owing to
any Lender or the Administrative Agent hereunder and under any Note
and cash collateralized the L/C Obligations on terms reasonably
satisfactory to the Administrative Agent or (ii) made an offer to pay
the Loans, all Reimbursement Obligations and any amounts then due and
owing to each Lender and the Administrative Agent hereunder and under
any Note and to cash collateralize the L/C Obligations in respect of
each Lender and shall have made payment in full thereof to each such
Lender or the Administrative Agent which has accepted such offer and
cash collateralized the L/C Obligations in respect of each such Lender
which has accepted such offer.
(c) Amend, supplement, waive or otherwise modify, including
by an exchange, any of the provisions of any of the Senior
Subordinated Notes, the Senior Subordinated
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Notes Documents, the EVI Senior Subordinated Notes or the EVI Senior
Subordinated Notes Documents:
(i) which amends or modifies the subordination provisions, if
any, contained therein;
(ii) which shortens the fixed maturity or increases the
principal amount of, or increases the rate or shortens the
time of payment of interest on, or increases the amount or
shortens the time of payment of any principal or premium
payable whether at maturity, at a date fixed for prepayment or
by acceleration or otherwise of the Indebtedness evidenced by
the Senior Subordinated Notes or the EVI Senior Subordinated
Notes, or increases the amount of, or accelerates the time of
payment of, any fees or other amounts payable in connection
therewith;
(iii) which relates to any material affirmative or negative
covenants or any events of default or remedies thereunder and
the effect of which is to subject the Borrower or any of its
Subsidiaries, to any more onerous or more restrictive
provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors with respect to the Senior
Subordinated Notes or the EVI Senior Subordinated Notes or the
interests of the Lenders under this Agreement or any other
Loan Document in any material respect;
provided that, the Borrower may effect any such amendment, supplement,
waiver or other modification, including by an exchange, and may make
payments or provide other compensation in connection therewith, in
order to merge or otherwise combine, or increase the consistency of,
the Senior Subordinated Note Indenture and the EVI Senior Subordinated
Note Indenture and the indebtedness outstanding thereunder, so long as
such merger or other combination, or such increase in consistency,
would not adversely affect, in the reasonable judgment of the
Administrative Agent, the interests of the Lenders under this
Agreement or any other Loan Document in any material respect.
14. Consent to Merger. Each Lender party hereto hereby consents
to the Telex/EVI Mergers, the assumption by EVI of the obligations of Telex
under Telex Credit Agreement and the Loan Documents and the other transactions
expressly contemplated hereby.
15. Conditions to Effectiveness. Except as provided in clause (a)
below, this Amendment shall become effective on the date (the "Amendment
Effective Date") on which all of the following conditions have been satisfied
or waived:
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(a) Execution and Delivery. EVI, Telex, the Administrative Agent
and the Required Lenders shall have executed and delivered to the
Administrative Agent this Amendment.
(b) Termination of the EVI Credit Agreement. All amounts
outstanding under the EVI Credit Agreement shall have been paid in full and all
outstanding lending commitments under the EVI Credit Agreement shall have been
terminated.
(c) Corporate Structure. The corporate and capital structure of
each Loan Party after the Telex/EVI Mergers (including as to the ownership of
the voting stock thereof and the voting arrangements with respect to such
stock) shall be reasonably satisfactory in all respects to the Administrative
Agent.
(d) Telex/EVI Mergers. Each of the Telex/EVI Merger Documents
shall have been executed and delivered on terms and conditions reasonably
satisfactory to the Administrative Agent and no material provision thereof
shall have been waived by any party thereto, amended, supplemented or otherwise
modified (except as may be so reasonably satisfactory to the Administrative
Agent). The sources and uses of funds for the Telex/EVI Mergers shall be
consistent with the description thereof set forth in the Confidential
Information Memorandum dated January 1998.
(e) Fees. The Administrative Agent shall have received, for the
account of each consenting Lender, a fee equal to .125% of the Commitments of
such Lender and the Administrative Agent shall have received for its own
account such other fees as have been agreed to in writing between Telex and
Chase.
(f) Approvals. All governmental and third party approvals
(including landlords' and other consents) necessary or reasonably advisable in
connection with the Telex/EVI Mergers and the continuing operations of the
Borrower and its Subsidiaries shall have been obtained and be in full force and
effect, and all applicable waiting periods under applicable law shall have
expired without any action being taken or threatened by any competent authority
which would restrain, prevent or otherwise impose material adverse conditions
on the Telex/EVI Mergers.
(g) Pro Forma Balance Sheet. The Lenders shall have received a
reasonably satisfactory unaudited pro forma consolidated balance sheet of the
Borrower as of the most recent fiscal quarter-end prior to the Amendment
Effective Date for which quarterly financial statements of the Borrower are
available, and after giving effect to the Telex/EVI Mergers. The Lenders shall
be reasonably satisfied with respect to all material and direct contingent
liabilities of the Borrower after the Telex/EVI Mergers, including any
indebtedness or guarantees thereof and any tax and similar governmental
liabilities.
(h) Lien Searches. The Administrative Agent shall have received
the results of a recent search by a Person reasonably satisfactory to the
Administrative Agent, of the Uniform Commercial Code, judgment and tax lien
filings which may have been filed with respect to
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personal property of EVI and its Subsidiaries in any of the jurisdictions set
forth in Schedule 14(h) to this Amendment, and the results of such search shall
not reveal any liens other than liens permitted by subsection 8.3 of the Telex
Credit Agreement.
(i) Legal Opinions. The Administrative Agent shall have received,
with a photocopy for each Lender, the following executed legal opinions:
(i) the executed legal opinion of Debevoise & Xxxxxxxx,
special counsel to Telex, EVI and the other Loan Parties, in form and
substance reasonably satisfactory to the Administrative Agent;
(ii) the executed legal opinions of special local counsel in
each jurisdiction reasonably requested by the Administrative Agent
with respect to collateral security matters, each in form and
substance reasonably satisfactory to the Administrative Agent; and
(iii) the executed legal opinion of Xxxxxx, Xxxxxxxxx &
Xxxxxxxxx, special intellectual property counsel to the Lenders, in
form and substance reasonably satisfactory to the Administrative
Agent.
(j) Actions to Perfect Liens. The Administrative Agent shall have
received evidence in form and substance reasonably satisfactory to it that all
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on Form UCC-1 in
each jurisdiction set forth on Schedule 14(h), necessary or, in the reasonable
opinion of the Administrative Agent, advisable to perfect the Liens created by
the Security Documents shall have been completed or shall be ready to be
completed promptly following the Amendment Effective Date, and all agreements,
statements and other documents relating thereto shall be in form and substance
reasonably satisfactory to the Administrative Agent.
(k) New Pledged Stock; Stock Powers; New Pledged Notes;
Endorsements. The Administrative Agent shall have received:
(i) the certificates representing all of the Capital Stock of
EVI and the Subsidiaries of EVI which had been pledged as collateral
security for the obligations under the EVI Credit Agreement, together
with an undated stock power for each such certificate executed in
blank by a duly authorized officer of the pledgor thereof; and
(ii) the promissory notes representing each of the notes (if
any) which had been pledged as collateral security for the obligations
under the EVI Credit Agreement, duly endorsed as required by the
Guarantee and Collateral Agreement.
The Loan Parties shall have taken such other action as is reasonably
satisfactory to the Administrative Agent to perfect the security interests
created by the Guarantee and Collateral Agreement.
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(l) Mortgages. The Administrative Agent shall have received a
Mortgage with respect to each parcel of real property pledged as collateral
security for the obligations under the EVI Credit Agreement (the "New Mortgaged
Properties"), executed and delivered by a duly authorized officer of the owner
thereof.
(m) Surveys. The Administrative Agent shall have received, and
the title insurance company issuing the policy referred to in Section 16(a)
hereof (the "Title Insurance Company") shall have received, maps or plats of an
as-built survey of the sites of each of the New Mortgaged Properties for which
a map or plat of an as-built survey was not received by the Administrative
Agent in connection with the EVI Credit Agreement certified to the
Administrative Agent and the Title Insurance Company in a manner reasonably
satisfactory to them, dated a date reasonably satisfactory to the
Administrative Agent and the Title Insurance Company by an independent
professional licensed land surveyor reasonably satisfactory to the
Administrative Agent and the Title Insurance Company, which maps or plats and
the surveys on which they are based shall be made in accordance with the
Minimum Standard Detail Requirements for Land Title Surveys jointly established
and adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 1992, and, without limiting the generality of the
foregoing, there shall be surveyed and shown on such maps, plats or surveys the
following: (i) the locations on such sites of all the buildings, structures
and other improvements and the established building setback lines; (ii) the
lines of streets abutting the sites and width thereof; (iii) all access and
other easements appurtenant to the sites necessary to use the sites; (iv) all
roadways, paths, driveways, easements, encroachments and overhanging
projections and similar encumbrances affecting the sites, whether recorded,
apparent from a physical inspection of the sites or otherwise known to the
surveyor; (v) any encroachments on any adjoining property by the building
structures and improvements on the sites; and (vi) if the site is described as
being on a filed map, a legend relating the survey to said map.
(n) Borrowing Certificate. The Administrative Agent shall have
received, with a photocopy for each Lender, a Borrowing Base Certificate,
substantially in the form of Exhibit J to the Telex Credit Agreement, with
appropriate insertions and attachments, reasonably satisfactory in form and
substance to the Administrative Agent, executed by a Responsible Officer and
the Secretary or any Assistant Secretary of the Borrower.
(o) Corporate Proceedings of the Loan Parties. The Administrative
Agent shall have received, with a photocopy for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the
Administrative Agent, of the board of directors of each of Holdings, Telex, EVI
Holdings, EVI and each of their respective Subsidiaries authorizing, as
applicable, the execution, delivery and performance of this Amendment and the
Telex/EVI Merger Documents to which it is or will be a party as of the
Amendment Effective Date, certified by the Secretary or an Assistant Secretary
of such Person as of the Amendment Effective Date, which certificate shall be
in form and substance reasonably satisfactory to the Administrative Agent and
shall state that the resolutions thereby certified have not been amended,
modified (except as any later resolution may modify any such earlier
resolution), revoked or rescinded and are in full force and effect.
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(p) Incumbency Certificates of the Loan Parties. The
Administrative Agent shall have received, with a photocopy for each Lender, a
certificate of each of Holdings, Telex, EVI Holdings, EVI and each of their
respective Subsidiaries, dated the Amendment Effective Date, as to the
incumbency and signature of the officers of such Person executing any Loan
Document, reasonably satisfactory in form and substance to the Administrative
Agent, executed by a Responsible Officer and the Secretary or any Assistant
Secretary of such Person.
(q) Governing Documents. The Administrative Agent shall have
received, with a photocopy for each Lender, copies of the certificate or
articles of incorporation and by-laws (or other similar governing documents
serving the same purpose) of each of Holdings, Telex, EVI Holdings, EVI and
each of their respective Subsidiaries, certified as of the Amendment Effective
Date as complete and correct copies thereof by the Secretary or an Assistant
Secretary of such Person.
(r) Flood Insurance. With respect to any of the New Mortgaged
Properties which is located in an area identified by the Secretary of Housing
and Urban Development as having special flood hazards, the Administrative Agent
shall have delivered notice(s) to, and received acknowledgement from, the owner
thereof as required pursuant to Section 208.8(e)(3) of Regulation H of the
Board.
(s) Revised Schedule 5.16. The Administrative Agent shall have
received, with a copy for each Lender, a revised Schedule 5.16 to the Telex
Credit Agreement, revised to show the Subsidiaries of Borrower after giving
effect to the Telex/EVI Mergers, the jurisdiction of their incorporation and
the direct or indirect ownership interest of the Borrower therein.
16. Covenants.
(a) Title Insurance Policies. Within 30 days after the Amendment
Effective Date, the Borrower shall deliver to the Administrative Agent in
respect of each of the New Mortgaged Properties a mortgagee's title policy (or
policies) or marked up unconditional binder for such insurance dated the
Amendment Effective Date. Each such policy shall (i) be in an amount
reasonably satisfactory to the Administrative Agent; (ii) insure that the
Mortgage insured thereby creates a valid first Lien on the New Mortgaged
Property encumbered thereby free and clear of all defects and encumbrances,
except those permitted by subsection 8.3 of the Telex Credit Agreement and such
as may be approved by the Administrative Agent; (iii) name the Administrative
Agent for the benefit of the Lenders as the insured thereunder; (iv) be in the
form of an ALTA Loan Policy; (v) contain such endorsements and affirmative
coverage as the Administrative Agent may reasonably request; provided that, in
the case of zoning endorsements, if any, no additional premiums will be
required in excess of $2,000 per property, (vi) be issued by title companies
reasonably satisfactory to the Administrative Agent (including any such title
companies acting as reinsurers, at the option of the Administrative Agent) and
(vii) be issued at ordinary rates (other than with respect to affirmative
insurance). The Borrower shall also deliver to the Administrative Agent
evidence reasonably satisfactory to it that all premiums in respect of each
such policy, and all charges for mortgage recording tax, if any, have been
paid. The Borrower shall also deliver to the Administrative Agent a
14
14
copy of all recorded documents referred to, or listed as exceptions to title
in, the title policy or policies referred to in this subsection and a copy,
certified by such parties as the Administrative Agent may deem reasonably
appropriate, of all other documents affecting the property covered by each
Mortgage as shall have been reasonably requested by the Administrative Agent.
(b) Compliance with Subsections 7.10(a) and (b) of the Telex
Credit Agreement. Within 30 days after the Amendment Effective Date, the
Borrower shall comply in all respects with the requirements of subsection
7.10(a) and (b) of the Telex Credit Agreement to the extent it has not done so
prior to the Amendment Effective Date, and each Lender party hereto hereby
waives any Default or Event of Default which may have arisen or could arise
under the Telex Credit Agreement as a result of the Borrower failing to comply
with such subsections prior to the date which is 30 days after the Amendment
Effective Date.
17. General.
(a) Representation and Warranties. To induce the Administrative
Agent and the other Lenders parties hereto to enter into this Amendment, the
Borrower hereby represents and warrants to the Administrative Agent and all the
other Lenders that (i) as of the date hereof and after giving effect to the
Telex/EVI Mergers, the representations and warranties set forth in Section 5 of
the Telex Credit Agreement are true and correct in all material respects, (ii)
after giving effect to this Amendment, no Default or Event of Default shall
have occurred and be continuing and (iii) after giving effect to the Telex/EVI
Mergers and this Amendment, the obligations of the Borrower under the Telex
Credit Agreement, any Notes and the other Loan Documents constitute "Senior
Indebtedness" under and as defined in the EVI Senior Subordinated Indenture and
the obligations of each Guarantor under the Guarantee and Collateral Agreement
constitute "Guarantor Senior Indebtedness" of such Guarantor under and as
defined in the EVI Senior Subordinated Indenture.
(b) Assumption of Obligations. EVI hereby assumes all of the
obligations of Telex under the Telex Credit Agreement, the Notes and the other
Loan Documents, effective upon the effectiveness of this Amendment on the
Amendment Effective Date.
(c) Affirmation of Guarantees. Each Guarantor party hereto hereby
consents to the Telex/EVI Mergers and the execution, delivery and effectiveness
of this Amendment and reaffirms its obligations under the Guarantee and
Collateral Agreement.
(d) Payment of Expenses. The Borrower agrees to pay or reimburse
the Administrative Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent.
15
15
(e) Counterparts. This Amendment may be executed in two or more
counterparts (including by facsimile transmission), each of which shall
constitute an original, but all of which when taken together shall constitute
but one instrument.
(f) Headings. Section headings used in this Amendment are for
convenience of reference only, are not part of this Amendment and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Amendment.
(g) Continuing Effect of Loan Documents. This Amendment shall not
constitute an amendment or waiver of any other provision of the Telex Credit
Agreement not expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of the Borrower
that would require a waiver or consent of the Lenders or the Administrative
Agent. Except as expressly amended, modified and supplemented hereby, the
provisions of the Telex Credit Agreement and the other Loan Documents are and
shall remain in full force and effect.
(h) GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
16
16
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
17
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
TELEX COMMUNICATIONS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
18
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
TELEX COMMUNICATIONS GROUP, INC.
By: /s/ Xxxx X. Xxxxxxxxx
------------------------------------
Title: Vice President
19
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
EV INTERNATIONAL, INC. (to be renamed
"Telex Communications, Inc." after the
Amendment Effective Date)
By: /s/ Xxxxxxxxx X. Vanden Beukel
-----------------------------------
Title: Secretary
20
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
TCI HOLDINGS CORP.
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Title: Vice President
21
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: /s/ Xxxxxxxx Xxxxxxx, Xx.
-----------------------------------
Title: Vice President
22
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
XXXXXX XXXXXXX SENIOR FUNDING, INC.
as Documentation Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Title: Principal
23
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
THE TRAVELERS INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Title: Second Vice President
24
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
BANKBOSTON, N.A.
By: /s/ Xxxxx Alto
-----------------------------------
Title: Vice President
25
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
THE BANK OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
26
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
FIRST BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President
27
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
XXXXXX FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Title: Vice President
28
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------
Title: Deputy General Manager
29
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
THE BANK OF NOVA SCOTIA
By: /s/ F.C.H. Xxxxx
-----------------------------------
Title: Senior Manager
Loan Operations
30
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
BANQUE FRANCAISE DU COMMERCE EXTERIEUR
By: /s/ Xxxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
By: /s/ G. Xxxxx Xxxxxx
-----------------------------------
Title: Vice President
31
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
XXXXXXX XXXXX SENIOR FLOATING RATE
FUND, INC.
By: /s/ Xxxx Xxxxxxxxx Xxxxxxxx
-----------------------------------
Title: Authorized Signatory
32
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
FLOATING RATE PORTFOLIO
BY: CHANCELLOR LGT SENIOR SECURED
MANAGEMENT, INC., As Attorney-in-
Fact
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Title: Managing Director
33
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
BY: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By: /s/ Xxxxxxxx X. Xxxxxxxx
-----------------------------------
Title: Vice President &
Portfolio Manager
34
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
PRIME INCOME TRUST
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Title:
35
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
CRESCENT/MACH I PARTNERS, L.P.
by: TCW ASSET MANAGEMENT COMPANY
ITS INVESTMENT MANAGER
By: /s/ Xxxx X. Gold
-----------------------------------
Title: Managing Director
36
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
DEEPROCK & COMPANY
By: XXXXX XXXXX MANAGEMENT,
AS INVESTMENT ADVISOR
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------
Title: Assistant Treasurer
37
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
PILGRIM AMERICA PRIME RATE TRUST
By: /s/ Xxxxxx X. Xxxx
-----------------------------------
Title: Assistant Portfolio Manager
38
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
KZH HOLDING CORPORATION III
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
TItle: Authorized Agent
39
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
KZH HOLDING CORPORATION II
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Title: Authorized Agent
40
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
INDOSUEZ CAPITAL FUNDING III, LIMITED
BY: INDOSUEZ CAPITAL, AS PORTFOLIO
ADVISOR
By: /s/ Xxxxxxxxx Xxxxxxxxx
-----------------------------------
Title: Vice President
41
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
PAMCO CAYMAN LTD.
BY: PROTECTIVE ASSET MANAGEMENT COMPANY
AS COLLATERAL MANAGER
By: /s/ Xxxxx Dondoro
-----------------------------------
Title: President
42
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
KZH-CRESCENT CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Title: Authorized Agent
43
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
KZH-SOLEIL CORPORATION
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------
Title: Authorized Agent
44
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT &
RESEARCH, AS INVESTMENT
ADVISOR
By: Xxxxxxx Xxxxxxxx
--------------------------
Title: Assistant Treasurer
45
AMENDMENT NO. 1 TO TELEX CREDIT AGREEMENT
SCHEDULE 14(h)
LIEN SEARCH AND UCC FILING
JURISDICTIONS
See Schedule 5.14 to the EVI Credit Agreement.
