EXHIBIT 10.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") dated as of this 19th
day of November 2003, by and between TELEX COMMUNICATIONS HOLDINGS, INC., a
Delaware corporation having a place of business at 00000 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000 ("Assignor"), and TELEX COMMUNICATIONS, INC., a
Delaware corporation having a place of business at 00000 Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxxxxxxx 00000 ("Assignee").
WITNESSETH:
WHEREAS, Assignor is restructuring its debt obligations pursuant to
which, among other things, Assignor has agreed to transfer and assign to
Assignee, and Assignee has agreed to accept and assume, Assignor's right, title
and interest in all of its assets and certain of its debts, liabilities and
obligations.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Assignment. In consideration of 500 shares of common stock,
par value $0.01 per share, of the Assignee, Assignor does hereby assign, grant
and convey unto Assignee and Assignee's successors and permitted assigns, from
and after the date hereof, (i) all of Assignor's right, title and interest in
and to any and all of its assets whether tangible or intangible, real or
personal, other than those assets set forth on Annex A-1 attached hereto (the
"Assigned Assets"), and (ii) the debts, liabilities and obligations (whether
absolute, accrued, contingent or otherwise) of Assignor, other than those
liabilities and obligations expressly identified in Annex A-2 attached hereto
(the "Assumed Liabilities").
2. Assumption.
(i) Assignee hereby accepts the assignment of the
Assigned Assets and undertakes and agrees to assume, perform, pay or
cause to be paid, or otherwise discharge or cause to be discharged, all
of the Assumed Liabilities.
(ii) Nothing contained herein shall require Assignee to
pay or discharge any debts, liabilities or obligations assumed hereby
so long as Assignee shall in good faith contest or cause to be
contested the amount or validity thereof.
3. Representations of Assignor. Assignor represents and warrants
to Assignee that:
(i) Assignor is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware
and is duly qualified to own its properties and carry on its business
in each jurisdiction where the failure to be so qualified would have a
material adverse effect on Assignor's business;
(ii) Assignor has all requisite corporate power and
authority to enter into and perform its obligations under this
Agreement;
(iii) this Agreement has been duly authorized, executed and
delivered by Assignor and constitutes the legal, valid and binding
obligation of Assignor enforceable against Assignor in accordance with
its terms, except as enforcement of the terms hereof may be limited by
applicable bankruptcy, insolvency, reorganization, liquidation,
moratorium or similar laws affecting enforcement of creditors' rights
generally, as well as the award by courts of relief in lieu of specific
performance of contractual provisions;
(iv) none of the execution, delivery or performance by
Assignor of this Agreement will contravene any applicable law, rule,
regulation, judgment, order or decree binding on Assignor or any of its
property, or any provision of the charter or bylaws of Assignor, or
will result in a breach of, or constitute a default under, or
contravene any provision of, any material agreement or instrument to
which Assignor is a party or by which Assignor or any of its property
is bound; and
(v) none of the execution, delivery or performance by
Assignor of this Agreement requires the consent or approval of, the
giving of notice to, the registration, recording or filing of any
documents with, or the taking of any other action in respect of, any
governmental authority, except such as may be required with respect to
any sales or transfer tax payable in connection with the transactions
contemplated hereby.
4. Further Assurances. Assignor hereby covenants that Assignor
will, at any time and from time to time, upon written request therefor, execute
and deliver to Assignee or Assignee's successors or permitted assigns such
documents as Assignee or they may reasonably request in order to fully carry out
and effectuate the purposes of this Agreement.
5. Consent of Third Parties. Notwithstanding anything herein to
the contrary, this Agreement shall not constitute an agreement to assign or
transfer any governmental approval, instrument, contract, lease, permit or other
agreement or arrangement or any claim, right or benefit arising thereunder or
resulting therefrom if an assignment or transfer or an attempt to make such an
assignment or transfer without the consent of a third party would constitute a
breach or violation thereof or affect adversely the rights of the Assignee or
Assignor thereunder; and any transfer or assignment to the Assignee by Assignor
of any interest under any such governmental approval, instrument, contract,
lease, permit or other agreement or arrangement that requires the consent of a
third party shall be made subject to such consent or approval being obtained. In
the event any such consent or approval has not been obtained on or prior to the
date hereof, Assignor shall continue to use its best efforts to obtain any such
approval or consent after the date hereof until such time as such consent or
approval has been obtained, and Assignor shall cooperate with the Assignee in
any lawful and economically feasible arrangement; provided, however, that, to
the extent any such consent or approval has not been obtained on or prior to the
date hereof, any income, proceeds or profits received from such governmental
approvals, instruments, contracts, leases or permits or other agreements or
arrangements shall be held in trust by Assignor for the benefit of Assignee;
provided, further, that the Assignee shall receive the interest of Assignor, as
the case may be, in the benefits under any such governmental approval,
instrument, contract, lease or permit or other agreement or arrangement,
provided, further, that the Assignee shall undertake to pay or satisfy the
corresponding liabilities for the enjoyment of such benefit to the extent the
Assignee would have been responsible hereunder if
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such consent or approval has been obtained. Nothing in this Section 5 shall be
deemed a waiver by the Assignee of its right as set forth in this Agreement to
have received on or before the date hereof an effective assignment of all of the
Assigned Assets nor shall this Section 5 be deemed to constitute an agreement to
exclude from the Assigned Assets any assets whatsoever.
With respect to the agreements described on items 11 and 12 of Annex
A-1 and Annex A-2 (the "Government Contracts"), Assignee shall undertake to
perform all obligations under the Government Contracts and Assignor shall pay
over to Assignee all moneys received with respect to the Government Contracts.
Additionally, to the extent feasible, Assignor agrees to use its best efforts to
seek a novation of each Government Contract in favor of Assignee with respect to
each Government Contract whose term extends past December 31, 2003.
6. Headings; Plurals. Paragraph headings have been inserted
herein for convenience of reference only and shall not be construed to be a part
of this Agreement or as defining or limiting, in any way, the scope or intent of
the provisions hereof. Unless the context otherwise requires, words in the
singular include the plural, and words in the plural include the singular.
7. Severability. Every provision of this Agreement is intended to
be severable, and if any term or provision hereof is or shall be invalid,
illegal or unenforceable for any reason, the validity, legality and
enforceability of the remaining provisions hereof shall not be affected or
impaired thereby, and any invalidity, illegality or unenforceability in any
jurisdiction shall not affect the validity, legality or enforceability of any
such term or provision in any other jurisdiction.
8. No Oral Change. This Agreement may not be modified, amended,
changed, discharged or terminated orally, but only by an agreement in writing
signed by the party against whom the enforcement of the modification, amendment,
change, discharge or termination is sought.
9. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefits of Assignor and Assignee and their
respective successors and permitted assigns.
10. Counterparts. This Agreement may be executed in any number of
duplicate originals, and each such duplicate original shall be deemed to
constitute but one and the same instrument.
11. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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IN WITNESS WHEREOF, Assignor and Assignee have duly executed this
Agreement as of the day and year first above written.
TELEX COMMUNICATIONS HOLDINGS, INC.
Assignor
By:_____________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
TELEX COMMUNICATIONS, INC.
Assignee
By:_____________________________________
Name: Xxxxxxx Xxxxxxx
Title: Chief Financial Officer
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ANNEX A-1
NON-ASSUMED ASSETS
All of Assignor's rights under the following Agreements:
1. That certain Indenture, dated as of November 21, 2001, as
supplemented, by and between the Assignor and BNY Midwest Trust Company, as
Trustee, pursuant to which the Assignor issued its 13% Senior Subordinated
Discount Notes due 2006 (CUSIP No. 000000XX0) (the "Notes").
2. That certain Registration Rights Agreement, dated as of November 21,
2001, by the Assignor for the benefit of the holders of Notes.
3. The Notes.
4. That certain Warrant Agreement, dated as of November 21, 2001, as
amended, by and between the Assignor and BNY Midwest Trust Company, on behalf of
the holders of warrants issued pursuant thereto (the "Warrants").
5. The Warrants.
6. That certain Registration Rights Agreement, dated as of November 21,
2001, by the Assignor for the benefit of the holders of Warrants.
7. That certain Registration Rights Agreement, dated as of November 21,
2001, by the Assignor for the benefit of the holders of shares of the Assignor's
Series B Preferred Stock (all of which was subsequently converted into common
stock of Assignor).
8. That certain Voting and Transfer Agreement, dated as of the date
hereof, by and among the Assignor and certain holders of the Assignor's Common
Stock.
9. That certain Transfer Agreement, dated as of the date hereof, by and
among the Assignor; Xxxxxxxxx & Company, Inc.; Jefferies Opportunity Fund, LLC;
Jefferies Opportunity Fund II, LLC; Jefferies Employees Opportunity Fund, LLC;
ING Xxxxxx Xxxx Investors III, L.P.; ING Barings U.S. Leveraged Equity Plan LLC;
ING Barings Global Leveraged Equity Plan Ltd. and FS Private Investments III
LLC.
10. Any insurance policies currently in effect and maintained by the
Assignor.
11. Agreement Nos. SP0920-04-M-1095, SP0920-03-C-0389,
DAAB07-03-C-H610, SP0920-03-M-7197 and SP0905-03-M-9876 between Assigor and
Defense Supply Columbus Center, Columbus, OH.
12. Agreement No. DAAB07-99-D-C261 between Assigor and Central
Electronics Communications, Momoth, NJ.
ANNEX A-2
NON-ASSUMED LIABILITIES
All of Assignor's obligations under the following Agreements:
1. That certain Indenture, dated as of November 21, 2001, as
supplemented, by and between the Assignor and BNY Midwest Trust Company, as
Trustee, pursuant to which the Assignor issued its 13% Senior Subordinated
Discount Notes due 2006 (CUSIP No. 000000XX0) (the "Notes").
2. That certain Registration Rights Agreement, dated as of November 21,
2001, by the Assignor for the benefit of the holders of Notes.
3. The Notes.
4. That certain Warrant Agreement, dated as of November 21, 2001, as
amended, by and between the Assignor and BNY Midwest Trust Company, on behalf of
the holders of warrants issued pursuant thereto (the "Warrants").
5. The Warrants.
6. That certain Registration Rights Agreement, dated as of November 21,
2001, by the Assignor for the benefit of the holders of Warrants.
7. That certain Registration Rights Agreement, dated as of November 21,
2001, by the Assignor for the benefit of the holders of shares of the Assignor's
Series B Preferred Stock (all of which was subsequently converted into common
stock of Assignor).
8. That certain Voting and Transfer Agreement, dated as of the date
hereof, by and among the Assignor and certain holders of the Assignor's Common
Stock.
9. That certain Transfer Agreement, dated as of the date hereof, by and
among the Assignor; Xxxxxxxxx & Company, Inc.; Jefferies Opportunity Fund, LLC;
Jefferies Opportunity Fund II, LLC; Jefferies Employees Opportunity Fund, LLC;
ING Xxxxxx Xxxx Investors III, L.P.; ING Barings U.S. Leveraged Equity Plan LLC;
ING Barings Global Leveraged Equity Plan Ltd. and FS Private Investments III
LLC.
10. Any insurance policies currently in effect and maintained by the
Assignor.
11. Agreement Nos. SP0920-04-M-1095, SP0920-03-C-0389,
DAAB07-03-C-H610, SP0920-03-M-7197 and SP0905-03-M-9876 between Assigor and
Defense Supply Columbus Center, Columbus, OH.
12. Agreement No. DAAB07-99-D-C261 between Assigor and Central
Electronics Communications, Momoth, NJ.
