EXHIBIT 10.15(c)
[EXECUTION COPY]
AMENDMENT AND WAIVER NO. 3 UNDER
RESTRUCTURED CREDIT AND GUARANTY AGREEMENT
AMENDMENT AND WAIVER NO. 3 dated as of September 30, 1995 among Memorex
Telex Corporation, Memorex Telex N.V., Memorex Telex Holding N.V., Memorex Telex
Distribution N.V., Tulsa Computer Products, Ltd., the Lenders listed on the
signature pages hereof and Morgan Guaranty Trust Company of New York, in its
capacity as agent (the "Agent").
W I T N E S S E T H :
WHEREAS, the parties hereto have heretofore entered into the Restructured
Credit and Guaranty Agreement dated as of March 24, 1994 (as heretofore amended,
the "Agreement"); and
WHEREAS, the parties hereto desire to waive certain provisions thereof;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. DEFINITIONS; REFERENCES. Unless otherwise specifically defined
herein, each term used herein which is defined in the Agreement shall have the
meaning assigned to such term in the Agreement. Each reference to "hereof",
"hereunder", "herein" and "hereby" and each other similar reference and each
reference to "this Agreement" and each other similar reference contained in the
Agreement shall from and after the date hereof refer to the Agreement as amended
hereby.
SECTION 2. AMENDMENTS IN CONNECTION WITH SALES OF SHARES OF MEMOREX TELEX
JAPAN LTD.
(a) Section 2.04(c)(i) of the Agreement is amended to add the following
proviso immediately after the last proviso of such subparagraph:
; and PROVIDED, FURTHER, that in the event of any sales at any time
during the period from September 30, 1995 but prior to December 31,
1995 of up to an aggregate 2,000,000 shares of common stock of Memorex
Telex Japan Ltd. ("MTJL") owned by the
Parent, pursuant to the option to purchase such shares granted by the
Parent, the Borrowers shall not be required to make a prepayment
pursuant to this clause (c)(i) if the following subclauses (A),
(B) and (C) are satisfied: (A) all of the Net Cash Proceeds from such
sale and from all prior sales during such period of any shares of
common stock of MTJL owned by the Parent shall be paid to Kanematsu
Corporation, a Japanese corporation, to satisfy obligations of the
Borrowers to Kanematsu Corporation secured by a pledge of such shares
or paid to MTJL to satisfy obligations of the Borrowers to MTJL,
except that an aggregate cumulative amount of Net Cash Proceeds not
to exceed $2,000,000 during such period may be deposited in the Other
Designated Asset Proceeds Account in accordance with subclause (C);
(B) the consideration for such Asset Sale consists solely of cash and
(C) the Net Cash Proceeds not applied to make any such payments to
Kanematsu Corporation or to MTJL are deposited in the Other Designated
Asset Proceeds Account in a manner satisfactory to the Agent as soon
as practicable (and in any event not later than one Business Day)
after consummation of such Asset Sale.
(b) Section 7.01(f) of the Agreement is amended by amending and restating
the first clause (i) therein as follows:
(i) no Default shall have occurred and be continuing at the time such
release is to occur, other than any Default which shall have been
waived by the Required Lenders
SECTION 3. WAIVERS OF CERTAIN OBLIGATIONS TO PAY INTEREST AND PRINCIPAL.
The Lenders, through the Required Lenders signatory hereto, hereby waive, until
the earlier of December 31, 1995 or the occurrence of any other Default (the
"Waiver Expiration Date"), any and all Defaults resulting from any failure by
the Borrowers to make the payments of interest required to be made pursuant to
Section 2.03 at any time during the period from and including September 30, 1995
until the Waiver Expiration Date or resulting from the failure by the Borrowers
to make the payments of principal required to be made pursuant to Section
2.04(b) on June 30, 1995 and September 30, 1995 (all such payments of interest
and principal, collectively, being referred to herein as the "Deferred
Payments"). Upon the Waiver Expiration Date, the waivers set forth in this
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Section 3 shall cease to be of force or effect and the Deferred Payments shall
be due and payable. It is understood that (x) the waivers set forth in this
Section 3 do not purport to alter the obligations imposed by Sections 2.03 and
2.04(b), but merely the exercise of rights and remedies predicated upon a
Default thereunder, and (y) upon the occurrence of the Waiver Expiration Date,
such rights and remedies shall be fully exercisable unless such obligations
shall have then been performed.
Without limiting the generality of the foregoing, prior to the Waiver
Expiration Date, the availability of the amounts referred to in subsection
7.01(f)(C) of the Agreement will by virtue of this Amendment and Waiver No. 3
not be affected by the failure to make the Deferred Payments.
SECTION 4. REDUCTION OF CONDITIONAL FORGIVENESS. Notwithstanding anything
to the contrary contained in the Agreement or in Waiver No. 2 Under Restructured
Credit and Guaranty Agreement, no Triggering Reduction or portion thereof shall
give rise to a Forgiveness Amount or a conditional right to forgiveness as
provided in Section 3.02 of the Credit Agreement unless the aggregate amount of
such Triggering Reduction and all prior Triggering Reductions exceeds, in the
aggregate, the sum of the Deferred Designated Asset Amortization Amount (as such
term is defined in the Agreement) and $5,500,000. Moreover, any Triggering
Reduction with respect to which the foregoing condition is satisfied shall give
rise to a Forgiveness Amount and a conditional entitlement to forgiveness only
in respect of the portion of such Triggering Reduction which, when taken
together with all prior Triggering Reductions, exceeds, in the aggregate, the
sum of the Deferred Designated Asset Amortization Amount and $5,500,000. The
Agreement shall be deemed amended to the extent required to effectuate the
foregoing, and the Borrowers hereby waive any and all Forgiveness Amounts and
conditional rights to forgiveness except to the extent contemplated by this
paragraph. Upon the effectiveness of this Amendment and Waiver No. 3, Section 3
of Waiver No. 2 Under Restructured Credit and Guaranty shall cease to be
operative and shall have no further force or effect.
SECTION 5. GOVERNING LAW. This Amendment and Waiver No. 3 shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 6. COUNTERPARTS; EFFECTIVENESS. This Amendment and Waiver No. 3
shall become effective as of the date hereof when the Agent shall have received
duly executed
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counterparts hereof signed by (i) all parties hereto other than the Lenders
and (ii) the Required Lenders (or in the case of any party from which an
executed counterpart shall not have been received, the Agent shall have
received facsimile, telegraphic, telex or other written confirmation from
such party that a counterpart has been signed by such party). This Amendment
and Waiver No. 3 may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment and
Waiver No. 3 to be duly executed as of the date first above written.
BORROWERS AND GUARANTOR
MEMOREX TELEX N.V.
By:
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Name:
Title:
MEMOREX TELEX CORPORATION
By:
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Name:
Title:
MEMOREX TELEX DISTRIBUTION N.V.
By:
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Name:
Title:
MEMOREX TELEX HOLDING N.V.
By:
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Name:
Title:
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TULSA COMPUTER PRODUCTS, LTD.
By:
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Name:
Title:
AGENT:
MORGAN GUARANTY TRUST COMPANY OF
NEW YORK, as Agent
By:
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Name:
Title:
LENDERS:
ABN AMRO BANK N.V., AMSTERDAM
BRANCH
By:
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Name:
Title:
By:
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Name:
Title:
BANQUE WORMS CAPITAL CORP.
By:
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Name:
Title:
BAYERISCHE VEREINSBANK,
AKTIENGESELLSCHAFT, LONDON BRANCH
By:
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Name:
Title:
5
CERBERUS PARTNERS, L.P.
By:
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Name:
Title:
GRACE BROTHERS, LTD.
By:
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Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK, LONDON BRANCH
By:
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Name:
Title:
NEW VERNON PARTNERS L.P.
By: Whippoorwill Associates, Inc.,
as agent
By:
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Name:
Title:
PARESCO INC.
By: Whippoorwill Associates, Inc.,
as agent
By:
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Name:
Title:
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PEARL STREET L.P.
By:
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Name:
Title:
PEQUA TRADING CORP.
By: Whippoorwill Associates, Inc.,
as agent
By:
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Name:
Title:
PRINCIPAL MUTUAL LIFE
INSURANCE COMPANY
By:
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Name:
Title:
By:
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Name:
Title:
SARANAC INVESTORS L.P.
By: Whippoorwill Associates, Inc.,
as agent
By:
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Name:
Title:
TEACHERS INSURANCE AND ANNUITY
ASSOCIATION OF AMERICA
By:
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Name:
Title:
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THE PRESIDENT AND FELLOWS
OF HARVARD COLLEGE
By: Whippoorwill Associates, Inc.,
as agent
By:
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Name:
Title:
THE ROCKEFELLER FOUNDATION
By: Whippoorwill Associates, Inc,,
as agent
By:
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Name:
Title:
VEGA OFFSHORE FUND TRUST
By: Whippoorwill Associates, Inc.,
as agent
By:
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Name:
Title:
VEGA PARTNERS L.P.
By: Whippoorwill Associates, Inc.,
as General Partner
By:
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Name:
Title:
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VEGA PARTNERS II L.P.
By: Whippoorwill Associates, Inc.,
as General Partner
By:
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Name:
Title:
25307 PARTNERSHIP
By: Whippoorwill Associates, Inc.,
as agent
By:
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Name:
Title:
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