EXHIBIT 4.1(b)
PLEDGE AGREEMENT
PLEDGE AGREEMENT (this "Pledge Agreement") dated as of November 19,
2003, by and between TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC, a Delaware
limited liability company (the "Pledgor"), and BNY MIDWEST TRUST COMPANY, in its
capacity as Trustee and Collateral Agent (in such capacity, the "Collateral
Agent"), under that certain Indenture (the "Indenture") dated as of the date
hereof by and among the Pledgor, BNY Midwest Trust Company, as Trustee, and BNY
Midwest Trust Company, as Collateral Agent.
RECITALS
WHEREAS, pursuant to the Indenture, the Company issued its 13% Senior
Subordinated Discount Notes due 2009 (the "Notes"); and
WHEREAS, it is a condition precedent to the effectiveness of the
Indenture that the Pledgor shall have executed and delivered this Pledge
Agreement to the Collateral Agent for the benefit of the Collateral Agent, the
Trustee and the holders of the Notes (the "Holders").
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in the
Indenture.
2. Pledge and Grant of Security Interest. To secure the prompt
payment and performance in full when due, whether by lapse of time or otherwise,
of the Pledgor Obligations (as defined in Section 3 hereof), the Pledgor hereby
pledges and assigns to the Collateral Agent, for the benefit of the Trustee and
the Holders, and grants to the Collateral Agent, for the benefit of the Trustee
and the Holders, a continuing security interest in any and all right, title and
interest of the Pledgor in and to the following:
(a) Pledged Capital Stock. 100% of the issued and
outstanding Capital Stock (the "Pledged Capital Stock") of Telex
Communications, Inc. (f/k/a Telex Newco, Inc.), a Delaware corporation
("Telex"), together with the certificates, if any, representing such
Pledged Capital Stock, and all options and other rights, contractual or
otherwise, with respect thereto, including, but not limited to, the
following:
(i) all shares, securities, membership interests
or other equity interests representing a dividend on any of
the Pledged Capital Stock, or representing a distribution or
return of capital upon or in respect of the Pledged Capital
Stock, or resulting from a stock split, revision,
reclassification or other exchange therefor,
and any subscriptions, warrants, rights or options issued to
the holder of, or otherwise in respect of, the Pledged Capital
Stock; and
(ii) without affecting the obligations of the
Pledgor under any provision prohibiting such action hereunder
or under the Indenture or any other applicable agreement, in
the event of any consolidation or merger involving the issuer
of any Pledged Capital Stock and in which such issuer is not
the surviving entity, all shares of each class of the Capital
Stock of the successor entity formed by or resulting from such
consolidation or merger.
(b) Proceeds. All proceeds and products of the foregoing,
however and whenever acquired and in whatever form.
Without limiting the generality of the foregoing, it is hereby
specifically understood and agreed that the Pledgor may from time to time
hereafter pledge and deliver additional shares of stock or other interests to
the Collateral Agent as collateral security for the Pledgor Obligations. Upon
such pledge and delivery to the Collateral Agent, such additional shares of
stock or other interests shall be deemed to be part of the Pledged Capital Stock
and shall be subject to the terms of this Pledge Agreement.
3. Security for Pledgor Obligations. The security interest
created hereby in the Pledged Capital Stock constitutes continuing collateral
security for all of the following, whether now existing or hereafter incurred
(the "Pledgor Obligations"): (a) all of the Pledgor's payment obligations to the
Trustee, the Collateral Agent or the Holders under the Indenture and (b) all
expenses and charges, legal and otherwise, incurred by the Collateral Agent
and/or the Holders in collecting or enforcing any such obligation or in
realizing on or protecting any security therefor, including without limitation
the security granted hereunder.
4. Delivery of the Pledged Capital Stock; Perfection of Security
Interest. The Pledgor hereby agrees that:
(a) Delivery of Certificate. The Pledgor shall deliver to
the Collateral Agent (or a representative for the Collateral Agent) (i)
simultaneously with or prior to the execution and delivery of this
Pledge Agreement, all certificates, if any, representing the Pledged
Capital Stock and (ii) promptly upon the receipt thereof by or on
behalf of the Pledgor, all other certificates and instruments
constituting Pledged Capital Stock. Prior to delivery to the Collateral
Agent, all such certificates and instruments constituting Pledged
Capital Stock shall be held in trust by the Pledgor for the benefit of
the Collateral Agent pursuant hereto. All such certificates shall be
delivered in suitable form for transfer by delivery or shall be
accompanied by duly executed instruments of transfer or assignment in
blank, substantially in the form provided in Exhibit 4(a) attached
hereto.
(b) Additional Securities. If the Pledgor shall receive
by virtue of its being or having been the owner of any Pledged Capital
Stock, any (i) certificate, including without limitation, any
certificate representing a dividend or distribution in connection with
any
2
increase or reduction of capital, reclassification, merger,
consolidation, sale of assets, combination of shares or membership or
equity interests, stock splits, spin-off or split-off, promissory notes
or other instrument; (ii) option or right, whether as an addition to,
substitution for, or an exchange for, any Pledged Capital Stock or
otherwise; (iii) dividends payable in securities; or (iv) distributions
of securities or other equity interests in connection with a partial or
total liquidation, dissolution or reduction of capital, capital surplus
or paid-in surplus, then the Pledgor shall receive such certificate,
instrument, option, right or distribution in trust for the benefit of
the Collateral Agent, shall segregate it from such Pledgor's other
property and shall deliver it forthwith to the Collateral Agent (or a
representative thereof) in the exact form received together with any
necessary endorsement and/or appropriate stock power duly executed in
blank, substantially in the form provided in Exhibit 4(a), to be held
by the Collateral Agent as Pledged Capital Stock and as further
collateral security for the Pledgor's obligations under the Indenture.
(c) Financing Statements. The Pledgor shall execute, if
necessary, and deliver to the Collateral Agent such UCC or other
applicable financing statements as may be required in order to perfect
and protect the security interest created hereby in the Pledged Capital
Stock.
5. Lien Subordinate. Notwithstanding anything herein to the
contrary, the lien and security interest granted to the Collateral Agent and
Trustee pursuant to this Agreement and the exercise of any right or remedy by
the Collateral Agent or Trustee hereunder, in each case in respect of any
collateral constituting Noteholder Collateral (as defined in the Intercreditor
Agreement described below) are subject to the provisions of the Intercreditor
Agreement, dated as of November 19, 2003 (as amended, modified or supplemented
from time to time, the "Intercreditor Agreement"), among General Electric
Capital Corporation, as Agent, BNY Midwest Trust Company, as Collateral Agent,
BNY Midwest Trust Company, as Trustee, and the Pledgor. In the event of any
conflict between the terms of the Intercreditor Agreement and this Agreement,
the terms of the Intercreditor Agreement shall govern.
6. Representations and Warranties. The Pledgor hereby represents
and warrants to the Collateral Agent, for the benefit of the Holders, that so
long as any obligations remain outstanding under the Indenture:
(a) Authorization of Pledged Capital Stock. The Pledged
Capital Stock is duly authorized and validly issued, is fully paid and
nonassessable and is not subject to the preemptive rights of any
Person. All other shares of Capital Stock constituting Pledged Capital
Stock will be duly authorized and validly issued, fully paid and
nonassessable and not subject to the preemptive rights of any Person.
(b) Title. The Pledgor has good and indefeasible title to
the Pledged Capital Stock and will at all times be the legal and
beneficial owner of such Pledged Capital Stock free and clear of any
Lien, other than Permitted Liens. There exists no "adverse claim"
within the meaning of Section 8-102 of the Uniform Commercial Code as
in effect in the State of New York (the "UCC") with respect to the
Pledged Capital Stock other
3
than the first priority security interest in favor of General Electric
Capital Corporation, in its capacity as Agent for the Lenders under the
Senior Credit Agreement.
(c) Exercising of Rights. The exercise by the Collateral
Agent of its rights and remedies hereunder will not violate any law or
governmental regulation or any material contractual restriction binding
on or affecting the Pledgor or any of its property.
(d) Pledgor's Authority. No authorization, approval or
action by, and no notice or filing with any Governmental Authority, the
issuer of any Pledged Capital Stock or third party is required either
(i) for the pledge made by the Pledgor or for the granting of the
security interest by the Pledgor pursuant to this Pledge Agreement or
(ii) for the exercise by the Collateral Agent or the Holders of their
rights and remedies hereunder, except (i) as may be required under
applicable securities or similar laws and (ii) as set forth in the
Intercreditor Agreement.
(e) Security Interest/Priority. This Pledge Agreement
creates a valid security interest in favor of the Collateral Agent, for
the benefit of the Holders, in the Pledged Capital Stock. The taking
possession by the Collateral Agent (or a representative thereof) of the
certificates representing the Pledged Capital Stock and all other
certificates and instruments constituting Pledged Capital Stock will
perfect and establish the Collateral Agent's second priority security
interest in all certificated Pledged Capital Stock and such
certificates and instruments (subject to Permitted Liens). Except as
set forth in this Section, no action is necessary to perfect or
otherwise protect such security interest.
7. Covenants. The Pledgor hereby covenants, that so long as any
amounts remain unpaid under the Indenture, the Pledgor shall:
(a) Books and Records. Cause the issuer of the Pledged
Capital Stock to xxxx its stock ledger to reflect the security interest
granted to the Collateral Agent, for the benefit of the Holders,
pursuant to this Pledge Agreement.
(b) Defense of Title. Warrant and defend title to and
ownership of the Pledged Capital Stock at its own expense against the
claims and demands of all other parties claiming an interest therein,
except for Permitted Liens, keep the Pledged Capital Stock free from
all Liens, except for Permitted Liens, and not sell, exchange,
transfer, assign, rent, lease or otherwise dispose of Pledged Capital
Stock or any interest therein, except as permitted under the Indenture.
(c) Further Assurances. Promptly execute and deliver at
its expense all further instruments and documents and take all further
action that may be necessary and desirable or that the Collateral Agent
may reasonably request in order to (i) perfect and protect the security
interest created hereby in the Pledged Capital Stock (including,
without limitation, the execution and filing of UCC financing
statements and any and all action necessary to satisfy the Collateral
Agent that the Collateral Agent has obtained a second priority
perfected security interest in all Pledged Capital Stock); (ii) enable
the
4
Collateral Agent to exercise and enforce its rights and remedies
hereunder in respect of the Pledged Capital Stock; and (iii) otherwise
effect the purposes of this Pledge Agreement, including, without
limitation and if requested by the Collateral Agent, delivering to the
Collateral Agent irrevocable proxies in respect of the Pledged Capital
Stock.
(d) Compliance with Securities Laws. File all reports and
other information now or hereafter required to be filed by the Pledgor
with the United States Securities and Exchange Commission and any other
state, federal or foreign agency in connection with the ownership of
the Pledged Capital Stock.
8. Performance of Obligations; Advances by Collateral Agent. On
failure of the Pledgor to perform any of the covenants and agreements contained
herein, the Collateral Agent may, at its sole option and in its sole discretion,
perform or cause to be performed the same and in so doing may expend such sums
as the Collateral Agent may reasonably deem advisable in the performance
thereof, including, without limitation, the payment of any insurance premiums,
the payment of any taxes, a payment to obtain a release of a Lien or potential
Lien (other than a Permitted Lien), expenditures made in defending against any
adverse claim (other than a Permitted Lien) and all other expenditures which the
Collateral Agent may reasonably make for the protection of the security hereof
or which may be compelled to make by operation of law. All such sums and amounts
so expended shall be repayable by the Pledgor promptly upon timely notice
thereof and demand therefor, shall constitute additional Pledgor Obligations. No
such performance of any covenant or agreement by the Collateral Agent on behalf
of the Pledgor, and no such advance or expenditure therefor, shall relieve the
Pledgor of any default under the terms of this Pledge Agreement or the
Indenture. The Collateral Agent may make any payment hereby authorized in
accordance with any xxxx, statement or estimate procured from the appropriate
public office or holder of the claim to be discharged without inquiry into the
accuracy of such xxxx, statement or estimate or into the validity of any tax
assessment, sale, forfeiture, tax lien, title or claim except to the extent such
payment is being contested in good faith by the Pledgor in appropriate
proceedings and against which adequate reserves are being maintained in
accordance with GAAP.
9. Events of Default. The occurrence of an event which under the
Indenture would constitute an Event of Default shall be an event of default
hereunder (an "Event of Default").
10. Remedies. Subject to the provisions of the Intercreditor
Agreement:
(a) General Remedies. Upon the occurrence of an Event of
Default and during the continuation thereof, the Collateral Agent and
the Holders shall have, in respect of the Pledged Capital Stock, in
addition to the rights and remedies provided herein, in the Indenture
or by law, the rights and remedies of a secured party under the UCC or
any other applicable law.
(b) Sale of Pledged Capital Stock. Upon the occurrence of
an Event of Default and during the continuation thereof, without
limiting the generality of this Section and without notice, the
Collateral Agent may, in its sole discretion, sell or
5
otherwise dispose of or realize upon the Pledged Capital Stock, or any
part thereof, in one or more parcels, at public or private sale, at any
exchange or broker's board or elsewhere, at such price or prices and on
such other terms as the Collateral Agent may deem commercially
reasonable, for cash, credit or for future delivery or otherwise in
accordance with applicable law. To the extent permitted by law, any
Holder may in such event, bid for the purchase of such securities. The
Pledgor agrees that, to the extent notice of sale shall be required by
law and has not been waived by the Pledgor, any requirement of
reasonable notice shall be met if notice, specifying the place of any
public sale or the time after which any private sale is to be made, is
personally served on or mailed, postage prepaid, to the Pledgor, in
accordance with the notice provisions of 11.2 of the Indenture at least
ten (10) days before the time of such sale. The Collateral Agent shall
not be obligated to make any sale of Pledged Capital Stock regardless
of notice of sale having been given. The Collateral Agent may adjourn
any public or private sale from time to time by announcement at the
time and place fixed therefor, and such sale may, without further
notice, be made at the time and place to which it was so adjourned.
(c) Private Sale. Upon the occurrence of an Event of
Default and during the continuation thereof, the Pledgor recognizes
that the Collateral Agent may deem it impracticable to effect a public
sale of all or any part of the Pledged Capital Stock and that the
Collateral Agent may, therefore, determine to make one or more private
sales of any such Pledged Capital Stock to a restricted group of
purchasers who will be obligated to agree, among other things, to
acquire such Pledged Capital Stock for their own account, for
investment and not with a view to the distribution or resale thereof.
The Pledgor acknowledges that any such private sale may be at prices
and on terms less favorable to the seller than the prices and other
terms which might have been obtained at a public sale and,
notwithstanding the foregoing, agrees that such private sale shall be
deemed to have been made in a commercially reasonable manner and that
the Collateral Agent shall have no obligation to delay sale of any such
Pledged Capital Stock for the period of time necessary to permit the
issuer of such Pledged Capital Stock to register such Pledged Capital
Stock for public sale under the Securities Act of 1933. The Pledgor
further acknowledges and agrees that any offer to sell such Pledged
Capital Stock which has been (i) publicly advertised on a bona fide
basis in a newspaper or other publication of general circulation in the
financial community of New York, New York (to the extent that such
offer may be advertised without prior registration under the Securities
Act of 1933), or (ii) made privately in the manner described above
shall be deemed to involve a "public sale" under the UCC,
notwithstanding that such sale may not constitute a "public offering"
under the Securities Act of 1933, and the Collateral Agent may, in such
event, bid for the purchase of such Pledged Capital Stock.
(d) Retention of Pledged Capital Stock. In addition to
the rights and remedies hereunder, upon the occurrence of an Event of
Default and during the continuation thereof, the Collateral Agent may,
after providing the notices required by Section 9-620 of the UCC or
otherwise complying with the requirements of applicable law of the
relevant jurisdiction, accept or retain all or any portion of the
Pledged Capital Stock in satisfaction of the Pledgor Obligations.
Unless and until the Collateral Agent shall have
6
provided such notices, however, the Collateral Agent shall not be
deemed to have retained any Pledged Capital Stock in satisfaction of
any Pledgor Obligations for any reason.
(e) Deficiency. In the event that the proceeds of any
sale, collection or realization are insufficient to pay all amounts to
which the Collateral Agent or the Holders are legally entitled, the
Pledgor shall be liable for the deficiency, together with interest
thereon at the rates set forth in the Indenture and/or the Notes, as
applicable, together with the costs of collection and the reasonable
fees of any attorneys employed by the Collateral Agent to collect such
deficiency. Any surplus remaining after the full payment and
satisfaction of the Pledgor Obligations shall be returned to the
Pledgor or to whomsoever a court of competent jurisdiction shall
determine to be entitled thereto.
11. Rights of the Collateral Agent.
(a) Power of Attorney. In addition to other powers of
attorney contained herein, the Pledgor hereby designates and appoints
the Collateral Agent, on behalf of the Holders, and each of its
designees or agents as attorney-in-fact of the Pledgor, irrevocably and
with power of substitution, with authority to take any or all of the
following actions upon the occurrence and during the continuation of an
Event of Default (subject to the provisions of the Intercreditor
Agreement):
(i) to demand, collect, settle,
compromise, adjust and give discharges and releases concerning
the Pledged Capital Stock of the Pledgor, all as the
Collateral Agent may reasonably determine;
(ii) to commence and prosecute any
actions at any court for the purposes of collecting any of the
Pledged Capital Stock and enforcing any other right in respect
thereof;
(iii) to defend, settle, adjust or
compromise any action, suit or proceeding brought and, in
connection therewith, give such discharge or release as the
Collateral Agent may deem reasonably appropriate;
(iv) to pay or discharge taxes, liens,
security interests, or other encumbrances levied or placed on
or threatened against the Pledged Capital Stock;
(v) to direct any parties liable for
any payment under any of the Pledged Capital Stock to make
payment of any and all monies due and to become due thereunder
directly to the Collateral Agent or as the Collateral Agent
shall direct;
7
(vi) to receive payment of and receipt
for any and all monies, claims, and other amounts due and to
become due at any time in respect of or arising out of any
Pledged Capital Stock;
(vii) to sign and endorse any drafts,
assignments, proxies, stock powers, verifications, notices and
other documents relating to the Pledged Capital Stock;
(viii) to execute and deliver all
assignments, conveyances, statements, financing statements,
renewal financing statements, pledge agreements, affidavits,
notices and other agreements, instruments and documents that
the Collateral Agent may determine necessary in order to
perfect and maintain the security interests and liens granted
in this Pledge Agreement and in order to fully consummate all
of the transactions contemplated herein;
(ix) to exchange any of the Pledged
Capital Stock or other property upon any merger,
consolidation, reorganization, recapitalization or other
readjustment of the issuer thereof and, in connection
therewith, deposit any of the Pledged Capital Stock with any
committee, depository, transfer agent, registrar or other
designated agency upon such terms as the Collateral Agent may
determine;
(x) to vote for a shareholder, partner
or member resolution, or to sign an instrument in writing,
sanctioning the transfer of any or all of the Pledged Capital
Stock into the name of the Collateral Agent or into the name
of any transferee to whom the Pledged Capital Stock or any
part thereof may be sold pursuant to Section 10 hereof; and
(xi) to do and perform all such other
acts and things as the Collateral Agent may reasonably deem to
be necessary, proper or convenient in connection with the
Pledged Capital Stock.
This power of attorney is a power coupled with an interest and shall be
irrevocable for so long as any of the Pledgor Obligations remain
outstanding or the Indenture shall remain outstanding. The Collateral
Agent shall be under no duty to exercise or withhold the exercise of
any of the rights, powers, privileges and options expressly or
implicitly granted to the Collateral Agent in this Pledge Agreement,
and shall not be liable for any failure to do so or any delay in doing
so. The Collateral Agent shall not be liable for any act or omission or
for any error of judgment or any mistake of fact or law in its
individual capacity or its capacity as attorney-in-fact except acts or
omissions resulting from its gross negligence or willful misconduct.
This power of attorney is conferred on the Collateral Agent solely to
protect, preserve and realize upon its security interest in the Pledged
Capital Stock.
(b) Assignment by the Collateral Agent. The Collateral
Agent may from time to time assign the Pledgor Obligations or any
portion thereof and/or the Pledged Capital
8
Stock or any portion thereof in accordance with the Indenture, and the
assignee shall be entitled to all of the rights and remedies of the
Collateral Agent under this Pledge Agreement in relation thereto.
(c) The Collateral Agent's Duty of Care. Other than the
exercise of reasonable care to ensure the safe custody of the Pledged
Capital Stock while being held by the Collateral Agent hereunder, the
Collateral Agent shall have no duty or liability to preserve rights
pertaining thereto, it being understood and agreed that the Pledgor
shall be responsible for preservation of all rights in the Pledged
Capital Stock, and the Collateral Agent shall be relieved of all
responsibility for Pledged Capital Stock upon surrendering it or
tendering the surrender of it to the Pledgor. The Collateral Agent
shall be deemed to have exercised reasonable care in the custody and
preservation of the Pledged Capital Stock in its possession if such
Pledged Capital Stock is accorded treatment substantially equal to that
which the Collateral Agent accords its own property, which shall be no
less than the treatment employed by a reasonable and prudent agent in
the industry, it being understood that the Collateral Agent shall not
have responsibility for (i) ascertaining or taking action with respect
to calls, conversions, exchanges, maturities, tenders or other matters
relating to any Pledged Capital Stock, whether or not the Collateral
Agent has or is deemed to have knowledge of such matters; or (ii)
taking any necessary steps to preserve rights against any parties with
respect to any Pledged Capital Stock.
(d) Voting Rights in Respect of the Pledged Capital
Stock.
(i) So long as no Event of Default
shall have occurred and be continuing, to the extent permitted
by law, the Pledgor may exercise any and all voting and other
consensual rights pertaining to the Pledged Capital Stock or
any part thereof for any purpose not inconsistent with the
terms of this Pledge Agreement or the Indenture; and
(ii) Upon the occurrence and during the
continuance of an Event of Default and the subsequent giving
of written notice by the Collateral Agent, all rights of the
Pledgor to exercise the voting and other consensual rights
which it would otherwise be entitled to exercise pursuant to
paragraph (i) of this subsection (d) shall cease and all such
rights shall thereupon become vested in the Collateral Agent
which shall then have the sole right to exercise such voting
and other consensual rights.
(e) Dividend and Distribution Rights in Respect of the
Pledged Capital Stock.
(i) So long as no Event of Default shall have
occurred and be continuing and subject to Section 4(b) hereof,
the Pledgor may receive and retain any and all dividends
(other than stock or ownership interest dividends and other
dividends constituting Pledged Capital Stock which are
addressed hereinabove), distributions or interest paid in
respect of the Pledged Capital Stock to the extent they are
allowed under the Indenture.
9
(ii) Upon the occurrence and during the
continuation of an Event of Default (and subject in all cases
to the terms of the Intercreditor Agreement):
(A) all rights of the Pledgor to
receive the dividends, distributions and interest
payments which it would otherwise be authorized to
receive and retain pursuant to paragraph (i) of this
subsection (e) shall cease and all such rights shall
thereupon be vested in the Collateral Agent which
shall then have the sole right to receive and hold as
Pledged Capital Stock such dividends, distributions
and interest payments; and
(B) all dividends, distributions and
interest payments which are received by the Pledgor
contrary to the provisions of clause (A) of this
paragraph (ii) shall be received in trust for the
benefit of the Collateral Agent, shall be segregated
from other property or funds of the Pledgor, and
shall be forthwith paid over to the Collateral Agent
as additional pledged collateral in the exact form
received, to be held by the Collateral Agent as
further collateral security for the Pledgor
Obligations.
(f) Release of Pledged Capital Stock. The Collateral
Agent may release any of the Pledged Capital Stock from this Pledge
Agreement or may substitute any of the Pledged Capital Stock for other
Pledged Capital Stock without altering, varying or diminishing in any
way the force, effect, lien, pledge or security interest of this Pledge
Agreement as to any Pledged Capital Stock not expressly released or
substituted, and this Pledge Agreement shall continue as a second
priority lien on all Pledged Capital Stock not expressly released or
substituted.
(g) Execution of Financing Statements. The Pledgor shall
file financing statements (including renewal statements and in lieu
statements) and amendments thereof and supplements thereto with respect
to the Pledged Capital Stock in such form and in such filing offices as
shall be appropriate to perfect the security interests of the
Collateral Agent under this Pledge Agreement.
(h) Rights Under the Indenture. All of the rights,
privileges, protections, immunities and indemnities afforded the
Collateral Agent under the Indenture (including its right to be
indemnified by the Pledgor) are hereby incorporated herein as if set
forth herein in full.
12. Rights of Holders. All rights of the Collateral Agent
hereunder, if not exercised by the Collateral Agent, may be exercised with the
consent of Holders of at least a majority in principal amount of the Notes in
accordance with Section 9.2 of the Indenture.
13. Application of Proceeds. Subject to the provisions of the
Intercreditor Agreement, upon the occurrence and during the continuation of an
Event of Default, any
10
payments in respect of the Pledgor Obligations and any proceeds of any Pledged
Capital Stock or any other pledged collateral, when received by the Collateral
Agent or any of the Holders in cash or its equivalent, will be applied in
accordance with the provisions of the Indenture, and the Pledgor irrevocably
waives the right to direct the application of such payments and proceeds and
acknowledges and agrees that the Collateral Agent shall have the continuing and
exclusive right to apply and reapply any and all such payments and proceeds in
the Collateral Agent's sole discretion, notwithstanding any entry to the
contrary upon any of its books and records.
14. Costs of Counsel. If at any time hereafter, whether upon the
occurrence of an Event of Default or not, the Collateral Agent employs counsel
to prepare or consider amendments, waivers or consents with respect to this
Pledge Agreement, or to take action or make a response in or with respect to any
legal or arbitral proceeding relating to this Pledge Agreement or relating to
the Pledged Capital Stock, or to protect the Pledged Capital Stock or exercise
any rights or remedies under this Pledge Agreement or with respect to the
Pledged Capital Stock, then the Pledgor agrees to promptly pay upon demand any
and all such reasonable out-of-pocket costs and expenses of the Collateral Agent
or the Holders, all of which costs and expenses shall constitute Pledgor
Obligations hereunder.
15. Continuing Agreement.
(a) This Pledge Agreement shall be a continuing agreement
in every respect and shall remain in full force and effect so long as
any of the Pledgor Obligations remain outstanding or the Indenture is
in effect. Upon such payment and termination, this Pledge Agreement
shall be automatically terminated and the Collateral Agent and the
Holders shall, upon the request and at the expense of the Pledgor,
forthwith release all of its liens and security interests hereunder and
shall execute and deliver all UCC termination statements and/or other
documents reasonably requested by the Pledgor evidencing such
termination. Notwithstanding the foregoing all releases and indemnities
provided hereunder shall survive termination of this Pledge Agreement.
(b) This Pledge Agreement shall continue to be effective
or be automatically reinstated, as the case may be, if at any time
payment, in whole or in part, of any of the Pledgor Obligations is
rescinded or must otherwise be restored or returned by the Collateral
Agent or any Holder as a preference, fraudulent conveyance or otherwise
under any bankruptcy, insolvency or similar law, all as though such
payment had not been made; provided that in the event payment of all or
any part of the Pledgor Obligations is rescinded or must be restored or
returned, all reasonable costs and expenses (including without
limitation any reasonable legal fees and disbursements) incurred by the
Collateral Agent or any Holder in defending and enforcing such
reinstatement shall be deemed to be included as a part of the Pledgor
Obligations.
16. Amendments; Waivers; Modifications. This Pledge Agreement and
the provisions hereof may not be amended, waived, modified, changed, discharged
or terminated except as set forth in Section 9.2 of the Indenture.
11
17. Successors in Interest. This Pledge Agreement shall create a
continuing security interest in the Pledged Capital Stock and shall be binding
upon the Pledgor, its successors and assigns and shall inure, together with the
rights and remedies of the Collateral Agent and the Holders hereunder, to the
benefit of the Collateral Agent and the Holders and their successors and
permitted assigns; provided, however, that the Pledgor may not assign its rights
or delegate its duties hereunder without the prior written consent of the
Holders pursuant to Section 9.2 of the Indenture. To the fullest extent
permitted by law, the Pledgor hereby releases the Collateral Agent and each
Holder, and its successors and assigns, from any liability for any act or
omission relating to this Pledge Agreement or the Pledged Capital Stock, except
for any liability arising from the gross negligence or willful misconduct of the
Collateral Agent, or such Holder, or its officers, employees or agents.
18. Notices. All notices required or permitted to be given under
this Pledge Agreement shall be in conformance with Section 11.2 of the
Indenture.
19. Counterparts. This Pledge Agreement may be executed in
counterparts, each of which where so executed and delivered shall be an
original, but all of which shall constitute one and the same instrument. It
shall not be necessary in making proof of this Pledge Agreement to produce or
account for more than one such counterpart.
20. Headings. The headings of the sections and subsections hereof
are provided for convenience only and shall not in any way affect the meaning,
construction or interpretation of any provision of this Pledge Agreement.
21. Governing Law; Submission to Jurisdiction and Service of
Process; Arbitration; Waiver of Jury Trial. THIS PLEDGE AGREEMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW PROVISIONS THEREOF.
22. Severability. If any provision of this Pledge Agreement is
determined to be illegal, invalid or unenforceable, such provision shall be
fully severable and the remaining provisions shall remain in full force and
effect and shall be construed without giving effect to the illegal, invalid or
unenforceable provisions.
23. Entirety. This Pledge Agreement and the Indenture represent
the entire agreement of the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including any commitment
letters or correspondence relating to this Pledge Agreement and the Indenture or
the transactions contemplated herein and therein.
24. Survival. All representations and warranties of the Pledgor
hereunder shall survive the execution and delivery of this Pledge Agreement and
the Indenture, and the delivery of the Notes.
12
25. Marshalling. Neither the Collateral Agent nor any Holder shall
be under any obligation to xxxxxxxx any assets in favor of the Pledgor or any
other Person or against or in payment of any or all of the Pledgor Obligations.
26. Waiver of Subrogation Rights. The Pledgor forever waives any
right of subrogation, reimbursement, contribution, indemnity or the like which
the Pledgor may have against the issuer of the Pledged Capital Stock arising on
account of any disposition of or other realization on the Pledged Capital Stock
by the Collateral Agent pursuant to Section 10.
27. Conflicts. To the extent that any provision of this Pledge
Agreement is inconsistent with or conflicts with any provision of the Indenture,
the provision of the Indenture will control.
[Remainder of Page Intentionally Left Blank]
13
Each of the parties hereto has caused a counterpart of this Pledge
Agreement to be duly executed and delivered as of the date first above written.
PLEDGOR: TELEC COMMUNICATIONS INTERMEDIATE
HOLDINGS, LLC
By: _______________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
Accepted and agreed to as of the date first above written.
COLLATERAL AGENT: BNY MIDWEST TRUST COMPANY,
as Collateral Agent
By:_________________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
Exhibit 4(a)
to
Pledge Agreement
dated as of November 19, 2003
in favor of BNY Midwest Trust Company,
as Collateral Agent
Irrevocable Stock Power
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers to
the following shares of capital stock of _____________________, a ____________
corporation:
No. of Shares Certificate No.
and irrevocably appoints __________________________________ its agent and
attorney-in-fact to transfer all or any part of such capital stock and to take
all necessary and appropriate action to effect any such transfer. The agent and
attorney-in-fact may substitute and appoint one or more persons to act for him.
TELEX COMMUNICATIONS
INTERMEDIATE HOLDINGS, LLC,
a Delaware limited liability company
By: _______________________________________
Name:
Title: