EXHIBIT 4.2(b)
Execution Copy
GUARANTY
THIS GUARANTY, dated as of November 19, 2003 (this "Guaranty") by and among
TELEX COMMUNICATIONS HOLDINGS, INC., a Delaware corporation ("Holdings"), TELEX
COMMUNICATIONS INTERMEDIATE HOLDING, LLC, a Delaware limited liability company
("Parent"), TELEX COMMUNICATIONS INTERNATIONAL, LTD., a Delaware corporation
("TCI" and together with Holdings and Parent each a "Guarantor" and collectively
and jointly and severally, the "Guarantors") and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as Agent (in such capacity, "Agent") for
itself and the lenders from time to time party to the Credit Agreement as
defined below ("Lenders").
WHEREAS:
(A) Pursuant to that certain Credit Agreement dated as of the date hereof
(including all annexes, exhibits and schedules thereto, and as from
time to time amended, restated, supplemented or otherwise modified, the
"Credit Agreement") by and among TELEX COMMUNICATIONS, INC., a Delaware
corporation ("Borrower"), Guarantors, the financial institutions party
thereto from time to time as Lenders, and General Electric Capital
Corporation as initial L/C Issuer, Lender and Agent, pursuant to which,
among other things, Lenders have agreed to make a certain credit
facility available to Borrower upon the terms and subject to the
conditions specified in the Credit Agreement;
(B) Borrower wishes to borrow certain Loans and cause certain Letters of
Credit to be issued;
(C) each Guarantor will benefit from the making of the Loans and the Letter
of Credit Obligations as provided for in the Credit Agreement; and
(D) in order to induce Lenders to make the Loans and incur the Letter of
Credit Obligations as provided for in the Credit Agreement, each
Guarantor has agreed to guarantee payment of the Obligations;
NOW, THEREFORE, in consideration of the premises and the covenants hereinafter
contained, and to induce Lenders to make the Loans and to incur the Letter of
Credit Obligations to be made and incurred by Lenders under the Credit
Agreement, it is agreed as follows:
1. DEFINITIONS
Capitalized terms used herein shall have the meanings assigned to them
in the Credit Agreement and Annex A thereto, unless otherwise defined
herein.
References to this "Guaranty" shall mean this Guaranty, including all
amendments, modifications and supplements and any annexes, exhibits and
schedules to any of the foregoing, and shall refer to this Guaranty as
the same may be in effect at the time such reference becomes operative.
2. THE GUARANTY
2.1 Guaranty of Guaranteed Obligations
Each Guarantor hereby absolutely, unconditionally and irrevocably
guarantees to Agent for the ratable benefit of the Lenders and their
respective successors, endorsees, transferees and assigns, the prompt
payment (whether at stated maturity, by acceleration or otherwise) and
performance of the Obligations (collectively, the "Guaranteed
Obligations"). Each Guarantor agrees that this
Guaranty is a guaranty of payment and performance and not of
collection, and that its obligations under this Guaranty shall be
primary, absolute and unconditional, irrespective of, and unaffected
by:
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Guaranty, any other
Loan Document or any other agreement, document or instrument
to which any Credit Party and/or such Guarantor is or may
become a party;
(b) the absence of any action to enforce this Guaranty or any
other Loan Document or the waiver or consent by Agent and/or
Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect
Agent's Lien against, any Collateral for the Guaranteed
Obligations or any action, or the absence of any action, by
Agent in respect thereof (including, without limitation, the
release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a
surety or guarantor,
it being agreed by each Guarantor that its obligations under this
Guaranty shall not be discharged until the Termination Date. Each
Guarantor shall be regarded, and shall be in the same position, as
principal debtor with respect to the Guaranteed Obligations. Each
Guarantor agrees that any notice or directive given at any time to
Agent which is inconsistent with the waiver in the immediately
preceding sentence shall be null and void and may be ignored by Agent
and Lenders and, in addition, may not be pleaded or introduced as
evidence in any litigation relating to this Guaranty for the reason
that such pleading or introduction would be at variance with the
written terms of this Guaranty, unless Agent and Lenders have
specifically agreed otherwise in writing. It is agreed among each
Guarantor, Agent and Lenders that the foregoing waivers are of the
essence of the transaction contemplated by the Loan Documents and that,
but for this Guaranty and such waivers, Agent and Lenders would decline
to enter into the Credit Agreement.
2.2 Demand by Agent or Lenders
In addition to the terms of the Guaranty set forth in Section 2.1
hereof, and in no manner imposing any limitation on such terms, it is
expressly understood and agreed that, if, at any time, the outstanding
principal amount of the Guaranteed Obligations under the Credit
Agreement (including all accrued interest thereon) is declared to be
immediately due and payable, then each Guarantor shall without demand,
pay to the holders of the Guaranteed Obligations the entire outstanding
Guaranteed Obligations due and owing to such holders. Payment by each
Guarantor shall be made to Agent in immediately available funds to an
account, designated by Agent or at the address set forth herein for the
giving of notice to Agent or at any other address that may be specified
in writing from time to time by Agent, and shall be credited and
applied to the Guaranteed Obligations.
2.3 Enforcement of Guaranty
In no event shall Agent have any obligation (although it is entitled,
at its option) to proceed against Borrower or any other Credit Party or
any Collateral pledged to secure Guaranteed Obligations before seeking
satisfaction from any Guarantor, and Agent may proceed, prior or
subsequent to, or simultaneously with, the enforcement of Agent's
rights hereunder, to exercise any right or remedy which it may have
against any Collateral, as a result of any Lien it may have as security
for all or any portion of the Guaranteed Obligations.
2
2.4 Waiver
In addition to the waivers contained in Section 2.1 hereof, each
Guarantor waives and agrees that it shall not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshaling of
assets or redemption laws, or exemption, whether now or at any time
hereafter in force, which may delay, prevent or otherwise affect the
performance by such Guarantor of its Guaranteed Obligations under, or
the enforcement by Agent or Lenders of, this Guaranty. Each Guarantor
hereby waives diligence, presentment and demand (whether for
non-payment or protest or of acceptance, maturity, extension of time,
change in nature or form of the Guaranteed Obligations, acceptance of
further security, release of further security, composition or agreement
arrived at as to the amount of, or the terms of, the Guaranteed
Obligations, notice of adverse change in Borrower's financial condition
or any other fact which might increase the risk to such Guarantor) with
respect to any of the Guaranteed Obligations or all other demands
whatsoever and, to the fullest extent permitted by law, waives the
benefit of all provisions of law which are or might be in conflict with
the terms of this Guaranty. Each Guarantor represents, warrants and
agrees that, as of the date of this Guaranty, its obligations under
this Guaranty are not subject to any offsets or defenses against Agent
or Lenders or any Credit Party of any kind. Each Guarantor further
agrees that its obligations under this Guaranty shall not be subject to
any counterclaims, offsets or defenses against Agent or any Lender or
against any Credit Party of any kind which may arise in the future,
except as may be provided or permitted by the Credit Agreement.
2.5 Benefit of Guaranty
The provisions of this Guaranty are for the benefit of Agent and
Lenders and their respective successors, transferees, endorsees and
assigns, and nothing herein contained shall impair, as between any
Credit Party and Agent or Lenders, the obligations of any Credit Party
under the Loan Documents. In the event all or any part of the
Guaranteed Obligations are transferred, indorsed or assigned by Agent
or any Lender to any Person or Persons, any reference to "Agent" or
"Lender" herein shall be deemed to refer equally to such Person or
Persons.
2.6 Modification of Guaranteed Obligations, Etc.
Each Guarantor hereby acknowledges and agrees that Agent and Lenders
may at any time or from time to time, with or without the consent of,
or notice to such Guarantor:
(a) change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Guaranteed
Obligations;
(b) take any action under or in respect of the Loan Documents in
the exercise of any remedy, power or privilege contained
therein or available to it at law, equity or otherwise, or
waive or refrain from exercising any such remedies, powers or
privileges;
(c) amend or modify, in any manner whatsoever, the Loan Documents;
(d) extend or waive the time for any Credit Party's performance
of, or compliance with, any term, covenant or agreement on its
part to be performed or observed under the Loan Documents, or
waive such performance or compliance or consent to a failure
of, or departure from, such performance or compliance;
(e) take and hold Collateral for the payment of the Guaranteed
Obligations guaranteed hereby or sell, exchange, release,
dispose of, or otherwise deal with, any property
3
pledged, mortgaged or conveyed, or in which Agent or Lenders
have been granted a Lien, to secure any Obligations;
(f) release anyone who may be liable in any manner for the payment
of any amounts owed by such Guarantor or any Credit Party to
Agent or any Lender;
(g) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other
creditors of such Guarantor or any Credit Party are
subordinated to the claims of Agent and Lenders; and/or
(h) apply any sums by whomever paid or however realized to any
amounts owing by such Guarantor or any Credit Party to Agent
or any Lender in such manner as Agent or any Lender shall
determine in its discretion,
and Agent and Lenders shall not incur any liability to such Guarantor
as a result thereof, and no such action shall impair or release the
Guaranteed Obligations of such Guarantor under this Guaranty.
2.7 Reinstatement
This Guaranty shall remain in full force and effect and continue to be
effective should any petition be filed by or against any Credit Party
or any Guarantor for liquidation or reorganization, should any Credit
Party or any Guarantor become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed for
all or any significant part of such Credit Party's or such Guarantor's
assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Guaranteed
Obligations, or any part thereof, is, pursuant to applicable law,
rescinded or reduced in amount, or must otherwise be restored or
returned by Agent or any Lender, whether as a "voidable preference",
"fraudulent conveyance", or otherwise, all as though such payment or
performance had not been made. In the event that any payment, or any
part thereof, is rescinded, reduced, restored or returned, the
Guaranteed Obligations shall be reinstated and deemed reduced only by
such amount paid and not so rescinded, reduced, restored or returned.
2.8 Deferral of Subrogation, Etc.
Notwithstanding anything to the contrary in this Guaranty, or in any
other Loan Document, each Guarantor hereby:
(a) expressly and irrevocably waives, on behalf of itself and its
successors and assigns (including any surety) until the
Termination Date, any and all rights at law or in equity to
subrogation, to reimbursement, to exoneration, to
contribution, to indemnification, to set off or to any other
rights that could accrue to a surety against a principal, to
such Guarantor against a principal, to such Guarantor against
a maker or obligor, to an accommodation party against the
party accommodated, to a holder or transferee against a maker,
or to the holder of any claim against any Person, and which
such Guarantor may have or hereafter acquire against any
Credit Party in connection with or as a result of such
Guarantor's execution, delivery and/or performance of this
Guaranty, or any other documents relating to the Obligations
to which such Guarantor is a party or otherwise; and
(b) acknowledges and agrees that this waiver is intended to
benefit Agent and Lenders and shall not limit or otherwise
effect such Guarantor's liability hereunder or the
enforceability of this Guaranty, and that Agent, Lenders and
their respective successors
4
and assigns are intended third party beneficiaries of the
waivers and agreements set forth in this Section 2.8 and their
rights under this Section 2.8 shall survive payment in full of
the Guaranteed Obligations. The foregoing waiver shall not be
deemed to limit or prohibit the payment of indebtedness or
other obligations of any Guarantor to any Credit Party or
other Person which is incurred in the ordinary course of
business and which is otherwise permitted under the Credit
Agreement or this Guaranty.
2.9 Election of Remedies
If Agent may, under applicable law, proceed to realize benefits under
any of the Loan Documents giving Agent or Lenders a Lien upon any
Collateral owned by any Credit Party, either by judicial foreclosure or
by non-judicial sale or enforcement, Agent may, at its sole option,
determine which of such remedies or rights it may pursue without
affecting any of such rights and remedies under this Guaranty. If, in
the exercise of any of its rights and remedies, Agent shall forfeit any
of its rights or remedies, including its right to enter a deficiency
judgment against any Credit Party, whether because of any applicable
laws pertaining to "election of remedies" or the like, each Guarantor
hereby consents to such action by Agent and waives any claim based upon
such action, even if such action by Agent shall result in a full or
partial loss of any rights of subrogation which such Guarantor might
otherwise have had but for such action by Agent. Any election of
remedies which results in the denial or impairment of the right of
Agent to seek a deficiency judgment against any Credit Party shall not
impair any Guarantor's obligation to pay the full amount of the
Guaranteed Obligations. In the event Agent shall bid at any foreclosure
or trustee's sale or at any private sale permitted by law or the Loan
Documents, Agent may bid all or less than the amount of the Guaranteed
Obligations and the amount of such bid need not be paid by Agent but
shall be credited against the Guaranteed Obligations. The amount of the
successful bid at any such sale shall be conclusively deemed to be the
fair market value of the collateral and the difference between such bid
amount and the remaining balance of the Guaranteed Obligations shall be
conclusively deemed to be the amount of the Guaranteed Obligations
guaranteed under this Guaranty, notwithstanding that any present or
future law or court decision or ruling may have the effect of reducing
the amount of any deficiency claim to which Agent and Lenders might
otherwise be entitled but for such bidding at any such sale.
3. DELIVERIES
In a form satisfactory to Agent, each Guarantor shall deliver to Agent
(with sufficient copies for each Lender), concurrently with the
execution of this Guaranty and the Credit Agreement, the Loan Documents
and other instruments, certificates and documents as are required to be
delivered by such Guarantor to Agent under the Credit Agreement, to the
extent not otherwise delivered thereunder.
4. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and incur Letter of Credit
Obligations under the Credit Agreement, each Guarantor makes the
representations and warranties as to such Guarantor contained in the
Credit Agreement, each of which is incorporated herein by reference,
and all of which shall be deemed to be made on the date of each
borrowing by any Borrower under the Credit Agreement on and as of the
date of such borrowing as though made hereunder on and as of such date.
5. FURTHER ASSURANCES
Each Guarantor agrees, upon the written request of Agent or any Lender,
to execute and deliver to Agent or such Lender, from time to time, any
additional instruments or documents reasonably
5
considered necessary by Agent or such Lender to cause this Guaranty to
be, become or remain valid and effective in accordance with its terms.
6. PAYMENTS FREE AND CLEAR OF TAXES
All payments required to be made by each Guarantor hereunder shall be
made subject to the provisions of Section 1.11 of the Credit Agreement,
which is incorporated by reference herein mutatis mutandi, and in
respect of such payments to be made hereunder, each Guarantor shall
have all obligations of a Credit Party under such Section 1.11.
7. OTHER TERMS
7.1 Entire Agreement
This Guaranty, the Credit Agreement, the Notes and the other Loan
Documents embody the entire agreement among the parties hereto and
supersede all prior commitments, agreements, representations, and
understandings, whether oral or written, relating to the subject matter
hereof, and may not be contradicted or varied by evidence of prior,
contemporaneous, or subsequent oral agreements or discussions of the
parties hereto.
7.2 Headings
Section and subsection headings are included herein for convenience of
reference only and shall not constitute a part of this Guaranty for any
other purposes or be given substantive effect.
7.3 Severability
The invalidity, illegality, or unenforceability in any jurisdiction of
any provision of this Guaranty shall not affect or impair the remaining
provisions of this Guaranty.
7.4 Notices
Any notice or other communication required shall be in writing
addressed to the respective party as set forth below and may be
personally served, telecopied, sent by overnight courier service or
U.S. mail and shall be deemed to have been given: (a) if delivered in
person, when delivered; (b) if delivered by fax, on the date of
transmission if transmitted on a Business Day before 4:00 p.m. New York
Time; (c) if delivered by overnight courier, one (1) Business Day after
delivery to the courier properly addressed; or (d) if delivered by U.S.
mail, four (4) Business Days after deposit with postage prepaid and
properly addressed.
Notices shall be addressed as follows:
(a) If to Agent, at:
General Electric Capital Corporation
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Telex Account Officer
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with copies to:
6
General Electric Capital Corporation
Capital Funding, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Corporate Counsel
Corporate Financial Services - Global Sponsor Finance
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
and:
General Electric Capital Corporation
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: Corporate Counsel
Corporate Financial Services - Global Sponsor Finance
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
(b) If to any Lender, at the address of such Lender specified in
the Credit Agreement;
(c) If to any Guarantor at:
c/o Telex Communications, Inc.
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: President and CEO
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
7.5 Successors and Assigns
This Guaranty and all obligations of each Guarantor hereunder shall be
binding upon the successors and assigns of such Guarantor (including a
debtor-in-possession on behalf of such Guarantor) and shall, together
with the rights and remedies of Agent, for itself and for the benefit
of Lenders, hereunder, inure to the benefit of Agent and Lenders, all
future holders of any instrument evidencing any of the Obligations and
their respective successors and assigns. No sales of participations,
other sales, assignments, transfers or other dispositions of any
agreement governing or instrument evidencing the Obligations or any
portion thereof or interest therein shall in any manner affect the
rights of Agent and Lenders hereunder. No Guarantor may assign, sell,
hypothecate or otherwise transfer any interest in or obligation under
this Guaranty.
7.6 No Waiver; Cumulative Remedies; Amendments
Neither Agent nor any Lender shall by any act, delay, omission or
otherwise be deemed to have waived any of its rights or remedies
hereunder, and no waiver shall be valid unless in writing, signed by
Agent and then only to the extent therein set forth. A waiver by Agent,
for itself and the ratable benefit of Lenders, of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any
right or remedy which Agent would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising, on the
part of Agent or any Lender,
7
any right, power or privilege hereunder, shall operate as a waiver
thereof, nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or future exercise thereof or
the exercise of any other right, power or privilege. The rights and
remedies hereunder provided are cumulative and may be exercised singly
or concurrently, and are not exclusive of any rights and remedies
provided by law. None of the terms or provisions of this Guaranty may
be waived, altered, modified, supplemented or amended except by an
instrument in writing, duly executed by Agent and each Guarantor.
7.7 Termination
This Guaranty is a continuing guaranty and shall remain in full force
and effect until the Termination Date. Upon the Termination Date, Agent
shall deliver to each Guarantor such documents as such Guarantor may
reasonably request to evidence such termination.
7.8 Counterparts; Effectiveness
This Guaranty and any amendments, waivers, consents or supplements may
be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all of which counterparts
together shall constitute but one in the same instrument. This Guaranty
shall become effective upon the execution of a counterpart hereof by
each of the parties hereto.
7.9 Consent to Jurisdiction
(a) THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE
GOVERNED BY AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE INTERNATIONAL LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES WHICH SHALL BE DEEMED
NOT TO INCLUDE SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW.
(b) EACH GUARANTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN NEW YORK COUNTY, STATE
OF NEW YORK AND IRREVOCABLY AGREES THAT, SUBJECT TO AGENT'S
ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY OR ANY OF THE OTHER LOAN DOCUMENTS
SHALL BE LITIGATED IN SUCH COURTS. EACH GUARANTOR EXPRESSLY
SUBMITS AND CONSENTS TO THE JURISDICTION OF THE AFORESAID
COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS. EACH
GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE UPON SUCH GUARANTOR BY CERTIFIED OR REGISTERED MAIL,
RETURN RECEIPT REQUESTED, ADDRESSED TO SUCH GUARANTOR, AT THE
ADDRESS SET FORTH IN THIS AGREEMENT AND SERVICE SO MADE SHALL
BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN POSTED. IN
ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN
DOCUMENTS, ALL DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS OF
EACH GUARANTOR OR ANY OF ITS AFFILIATES SHALL BE DEEMED TO BE
EMPLOYEES OR MANAGING AGENTS OF SUCH GUARANTOR FOR PURPOSES OF
ALL APPLICABLE LAW OR COURT RULES REGARDING THE PRODUCTION OF
WITNESSES BY NOTICE FOR TESTIMONY (WHETHER IN A DEPOSITION, AT
TRIAL OR OTHERWISE). EACH GUARANTOR AGREES THAT
8
AGENT'S OR ANY LENDER'S COUNSEL IN ANY SUCH DISPUTE RESOLUTION
PROCEEDING MAY EXAMINE ANY OF THESE INDIVIDUALS AS IF UNDER
CROSS-EXAMINATION AND THAT ANY DISCOVERY DEPOSITION OF ANY OF
THEM MAY BE USED IN THAT PROCEEDING AS IF IT WERE AN EVIDENCE
DEPOSITION. EACH GUARANTOR IN ANY EVENT WILL USE ALL
COMMERCIALLY REASONABLE EFFORTS TO PRODUCE IN ANY SUCH DISPUTE
RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER REQUESTED
BY AGENT OR ANY LENDER, ALL PERSONS, DOCUMENTS (WHETHER IN
TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER
THEIR CONTROL AND RELATING TO THE DISPUTE.
7.10 Waiver of Jury Trial
EACH GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY AND THE
OTHER LOAN DOCUMENTS. EACH GUARANTOR ACKNOWLEDGES THAT THIS WAIVER IS A
MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT AGENT
HAS RELIED ON THE WAIVER IN ENTERING INTO THIS GUARANTY AND THE OTHER
LOAN DOCUMENTS AND WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED
FUTURE DEALINGS. EACH GUARANTOR WARRANTS AND REPRESENTS THAT SUCH
GUARANTOR HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH
LEGAL COUNSEL, AND THAT SUCH GUARANTOR KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS.
7.11 Limitation
Notwithstanding any provision herein contained to the contrary, the
liability of TCI (the "Limited Guarantor") under this Guaranty shall be
limited to an amount not to exceed as of any date of determination the
greater of:
(a) the net amount of all Loans advanced to the Limited Guarantor
under the Credit Agreement and then re-loaned or otherwise
transferred to, or for the benefit of, the Limited Guarantor;
and
(b) the amount that could be claimed by Agent and Lenders from the
Limited Guarantor under this Guaranty without rendering such
claim voidable or avoidable under Section 548 of Chapter 11 of
the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or
similar statute or common law.
[SIGNATURE PAGE FOLLOWS]
9
IN WITNESS WHEREOF, the parties hereto have executed and delivered this Guaranty
as of the date first above written.
TELEX COMMUNICATIONS
HOLDINGS, INC.,
as Guarantor
By: __________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
TELEX COMMUNICATIONS
INTERMEDIATE HOLDINGS, LLC,
as Guarantor
By: __________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
TELEX COMMUNICATIONS
INTERNATIONAL, LTD.,
as Guarantor
By: __________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
GENERAL ELECTRIC CAPITAL
CORPORATION,
as Agent
By: __________________________________
Name:
Title:
SIGNATURE PAGE TO TELEX GUARANTY
TELEX COMMUNICATIONS HOLDINGS, INC.,
TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC,
TELEX COMMUNICATIONS INTERNATIONAL, LTD.
("GUARANTORS")
AND
GENERAL ELECTRIC CAPITAL CORPORATION,
AS AGENT
---------------------------------------
GUARANTY AGREEMENT
---------------------------------------
TABLE OF CONTENTS
PAGE
1. DEFINITIONS............................................................ 1
2. THE GUARANTY........................................................... 1
2.1 Guaranty of Guaranteed Obligations............................ 1
2.2 Demand by Agent or Lenders.................................... 2
2.3 Enforcement of Guaranty....................................... 2
2.4 Waiver........................................................ 3
2.5 Benefit of Guaranty........................................... 3
2.6 Modification of Guaranteed Obligations, Etc................... 3
2.7 Reinstatement................................................. 4
2.8 Deferral of Subrogation, Etc.................................. 4
2.9 Election of Remedies.......................................... 5
3. DELIVERIES............................................................. 5
4. REPRESENTATIONS AND WARRANTIES......................................... 5
5. FURTHER ASSURANCES..................................................... 5
6. PAYMENTS FREE AND CLEAR OF TAXES....................................... 6
7. OTHER TERMS............................................................ 6
7.1 Entire Agreement.............................................. 6
7.2 Headings...................................................... 6
7.3 Severability.................................................. 6
7.4 Notices....................................................... 6
7.5 Successors and Assigns........................................ 7
7.6 No Waiver; Cumulative Remedies; Amendments.................... 7
7.7 Termination................................................... 8
7.8 Counterparts; Effectiveness................................... 8
7.9 Consent to Jurisdiction....................................... 8
7.10 Waiver of Jury Trial.......................................... 9
7.11 Limitation.................................................... 9
-i-
An extra section break has been inserted above this paragraph. Do not
delete this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
