EXECUTION COPY
WAIVER, AMENDMENT NO. 4, AGREEMENT AND CONSENT
WAIVER, AMENDMENT NO. 4, AGREEMENT AND CONSENT, dated as of April 11, 2001
(this "Amendment"), to the Credit Agreement, dated as of May 6, 1997, as amended
by Amendment No. 1, dated as of January 30, 1998, as amended by Amendment by No.
2, dated as of December 23, 1998, and as amended by Amendment Xx. 0, xxxxx xx xx
Xxxxxxx 00, 0000 (xxx as further amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among TELEX COMMUNICATIONS, INC., a
Delaware corporation ("Telex" or the "Borrower"), the several banks and other
financial institutions from time to time parties thereto (the "Lenders"), XXXXXX
XXXXXXX SENIOR FUNDING, INC., as documentation agent for the Lenders (in such
capacity, the "Documentation Agent") and THE CHASE MANHATTAN BANK, a New York
banking corporation, as administrative agent for the Lenders (in such capacity,
the "Administrative Agent").
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties
to the Credit Agreement, pursuant to which the Lenders have made extensions of
credit to, or for the benefit of, the Borrower;
WHEREAS, Events of Default have occurred and are continuing under
subsection 9(c) of the Credit Agreement as a result of the Borrower's failure to
meet the financial conditions and covenants contained in subsection 8.1 of the
Credit Agreement;
WHEREAS, in connection with such Events of Default, the Borrower has
requested that the Lenders agree to waive such Events of Default and further
agree to amend and modify the Credit Agreement in certain respects; and
WHEREAS, the Administrative Agent and the Lenders are willing to agree to
the requested waivers, amendments and modifications but only on the terms and
subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Borrowers, the Lenders and the Administrative Agent hereby agree as follows:
SECTION 1. DEFINITIONS.
1.1 Capitalized Terms. Capitalized terms used herein and not otherwise
defined shall have their respective meanings set forth in the Credit Agreement
and the following terms shall have the following meanings:
"Amendment No. 4 Effective Date": as defined in Section 6.1 of this
Amendment.
"Intercreditor Agreement": the Intercreditor Agreement dated as of April
11, 2001 among The Chase Manhattan Bank, as Administrative Agent on behalf of
the Lenders, the New Lenders and the Borrower, substantially in the form of
Exhibit A annexed hereto.
"New Indebtedness": Indebtedness of the Borrower incurred from time to time
(a) in an initial funded principal amount of not less than $15,000,000, but not
more than $20,000,000 in aggregate principal amount at any one time outstanding
(exclusive of capitalized interest, accrued interest or interest paid in kind),
(b) maturing no earlier than December 31, 2002, (c) not requiring interest to be
paid in cash prior to November 1, 2002 but which interest may accrue and be
compounded or paid in kind, (d) the lender of which is not Holdings or any
Subsidiary of the Borrower, (e) having terms and conditions not more restrictive
than those applicable to the Loans and otherwise reasonably satisfactory to the
Administrative Agent, including, without limitation, with respect to the cash
payment of fees, (f) which is subordinate in right of payment to the Obligations
(as defined in the Guarantee and Collateral Agreement) in accordance with the
terms and conditions of the Intercreditor Agreement and (g) which may be secured
by Liens on the Collateral junior to the Liens securing the Obligations (as
defined in the Guarantee and Collateral Agreement) pursuant to the terms and
conditions of the Intercreditor Agreement.
"New Lenders": the several banks and other financial institutions that are
from time to time the lenders of the New Indebtedness.
"Projections": the FY2001 Operating Plan - Preliminary Product Line P&L
provided by the Borrower to the Administrative Agent on March 8, 2001.
Section 2. AMENDMENTS.
2.1 Amendments to Subsection 1.1. (a) Subsection 1.1 of the Credit
Agreement is hereby amended by deleting therefrom the definitions of "Applicable
Margin," "Consolidated EBITDA," "Loan Documents," "Termination Date," "Tranche A
Maturity Date" and "Tranche B Maturity Date" in their entireties and inserting
the following new definitions in appropriate alphabetical order:
"Amendment No. 4": the Waiver, Amendment No. 4, Agreement and Consent dated
as of April 11, 2001 to this Agreement.
"Amendment No. 4 Effective Date": as defined in Amendment No. 4.
"Applicable Margin": (i) 4.00% per annum with respect to the Loans that are
Eurodollar Loans and (ii) 3.00% per annum with respect to the Loans that are ABR
Loans.
"Consolidated EBITDA": for any period, Consolidated Net Income for such
period adjusted to exclude the following items (without duplication) of income
or expense to the extent that such items are included in the calculation of
Consolidated Net Income: (a) Consolidated Interest Expense, (b) any non-cash
expenses and charges, (c) total income tax expense, (d) depreciation expense,
(e) the expense associated with amortization of intangible and other assets
(including amortization or other expense recognition of any costs associated
with
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asset write-ups in accordance with APB Nos. 16 and 17), (f) non-cash provisions
for reserves for discontinued operations, (g) any gain or loss associated with
the sale or write-down of assets not in the ordinary course of business, (h) any
income or loss accounted for by the equity method of accounting (except in the
case of income to the extent of the amount of cash dividends or cash
distributions paid to the Borrower or any of its Subsidiaries by the entity
accounted for by the equity method of accounting), (i) accruals for any fees
earned by GSCP in respect of management consulting or financial advisory
services as contemplated by Section 8.10(ii) hereof but not paid in cash as
provided in Section 3.2 of Amendment No. 4, (j) for any period that is part of
fiscal year 2001, all nonrecurring restructuring or other charges and
transaction fees relating to the Telex/EVI Mergers, including any such
nonrecurring charges which may reasonably be classified as restructuring charges
but are not classified as restructuring charges under GAAP; provided that the
aggregate amount of all such charges and fees paid in cash shall not exceed
$3,100,000 in the aggregate for fiscal year 2001; (k) non-cash charges, of up to
$161,000 in each fiscal year, relating to that certain operating lease of the
Borrower for its corporate headquarters in Burnsville, Minnesota; (l) expenses
incurred by the Borrower in connection with the negotiation and consummation of
Amendment No. 4, the placement and consummation of the New Indebtedness and the
amendment and modification of the Senior Subordinated Notes Documents and the
EVI Senior Subordinated Notes Documents to permit the issuance of the New
Indebtedness; provided that the aggregate amount of all such expenses shall not
exceed $1,500,000, unless otherwise agreed by the Administrative Agent; and (m)
except for purposes of calculating "Excess Cash Flow," cash payments not to
exceed an aggregate amount of $100,000 to be paid prior to the end of fiscal
year 2001 made to the Borrower's management employees in respect of bonuses (to
the extent not prohibited pursuant to subsection 8.18 hereof) in accordance with
the terms of such employees' employment agreements.
"Intercreditor Agreement": as defined in Amendment No. 4.
"Loan Documents": this Agreement (including each of the written agreements
embodying the amendments, supplements and other modifications hereto), the Telex
Assumption Agreement, any Notes, the Applications, the Guarantees, the Security
Documents and the Intercreditor Agreement, each as amended, supplemented, waived
or otherwise modified from time to time.
"New Indebtedness": as defined in Amendment No. 4.
"New Lenders": as defined in Amendment No. 4.
"Projections": as defined in Amendment No. 4.
"Termination Date": October 31, 2002.
"Tranche A Maturity Date": October 31, 2002.
"Tranche B Maturity Date": October 31, 2002.
(b) Subsection 1.1 of the Credit Agreement is hereby further amended by
inserting the following proviso at the end of the definition of "Asset Sale":
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"provided, that a Disposition to a joint venture or similar
arrangement otherwise permitted under clause (k) of Section 8.9 hereof shall not
constitute an Asset Sale".
(c) Subsection 1.1 of the Credit Agreement is hereby further amended by
inserting the following proviso at the end of the definition of "Indebtedness":
"provided, that Indebtedness shall not include accruals for any fees
earned by GSCP in respect of management consulting or financial advisory
services as contemplated by Section 8.10(ii) hereof but not paid in cash as
provided in Section 3.2 of Amendment No. 4."
2.2 Amendment to Subsection 2.8. Subsection 2.8 of the Credit Agreement is
hereby amended by (i) deleting that portion of the table contained in paragraph
(b) of said subsection relating to payment dates arising on and after November
30, 2002 through and including August 31, 2004 and (ii) deleting the amount
"$9,375,000" set forth opposite the date "Tranche B Maturity Date" and
substituting in lieu thereof the language "Outstanding balance".
2.3 Amendments to Subsection 4.4. (a) Subsection 4.4 of the Credit
Agreement is hereby amended by deleting the parenthetical phrase "(less the
Reinvested Amount applicable thereto)" from clause (d) of said subsection and by
adding the following new proviso to the end of said clause (d):
"provided, that if as a result of any such Asset Sale or Disposition a
prepayment would become due under subsection 4.4(f) because the Borrowing Base
(after giving effect to such Asset Sale or Disposition) will be reduced, then an
amount equal to the amount required to be prepaid under subsection 4.4(f) shall
be applied in accordance with such subsection, and an amount equal to the
difference between (x) 100% of the Net Cash Proceeds of such Asset Sale or other
Disposition and (y) the amount so applied pursuant to subsection 4.4(f) shall be
in applied in accordance with subsection 4.4(h), except that no prepayments of
the Revolving Credit Loans pursuant to subsection 4.4(f) shall reduce the
Revolving Credit Commitments unless requested by the Borrower."
(b) Subsection 4.4 of the Credit Agreement is hereby further amended by
deleting from subclause (y) of the second sentence of clause (h) of said
subsection the words "first, to the first two installments thereof due on or
after the date of such prepayment in the order of their maturities and second".
2.4 Amendments to Subsection 8.1. (a) Subsection 8.1 of the Credit
Agreement is hereby amended by deleting paragraph (a) thereof in its entirety
and substituting in lieu thereof the following new paragraph (a):
"(a) Minimum Consolidated EBITDA. Permit the Consolidated EBITDA of the
Borrower for any fiscal period of the Borrower set forth below to be less than
the amount set forth opposite to such period below:
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Period Amount
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January 1, 2001 -- March 31, 2001 $ 5,000,000
January 1, 2001 -- June 30, 2001 $15,000,000
January 1, 2001 -- September 30, 2001 $27,500,000
January 1, 2001 - December 31, 2001 $44,000,000
April 1, 2001 -- March 31, 2002 $46,000,000
July 1, 2001 -- June 30, 2002 $48,000,000
October 1, 2001 -- September 30, 2002 $52,000,000;
provided, that if the Borrower or any of its Subsidiaries consummates the sale
or other Disposition of any of their businesses in a transaction permitted under
(or otherwise consented to in accordance with the terms of) the Credit
Agreement, the amount set forth above for the test period in which such
transaction is so consummated and for any subsequent test period shall be
reduced by (i) an amount equal to the lesser of (x) the portion of Consolidated
EBITDA that any such business was projected to generate in the Projections and
(y) the portion of Consolidated EBITDA actually generated by any such business
but annualized in a manner and using assumptions materially consistent with the
manner in which the Projections were prepared and (ii) an amount equal to the
fixed costs of the Borrower that have theretofore been allocated to such
business but which, at the time of such sale or Disposition, are reasonably
projected to continue following such sale or Disposition (it being understood
that the amount set forth above for the test period in which such transaction is
so consummated and for any subsequent test period will not be adjusted if any
such business was generating a negative contribution to Consolidated EBITDA).
(b) Subsection 8.1 of the Credit Agreement is hereby further amended by
deleting paragraphs (b) and (c) of said subsection in their entirety.
2.5 Amendments to Subsection 8.2. (a) Subsection 8.2 of the Credit
Agreement is hereby amended by deleting clause (e) of said subsection in its
entirety and substituting in lieu thereof the following new clause (e):
"(e) Indebtedness of the Borrower in respect of the New Indebtedness;"
(b) Subsection 8.2 of the Credit Agreement is hereby further amended by
deleting clauses (j) and (m) of said subsection in their entireties and
inserting in lieu thereof the following new clauses (j) and (m):
"(j) [Reserved]".
"(m) [Reserved]".
2.6 Amendments to Subsection 8.3. (a) Subsection 8.3 of the Credit
Agreement is hereby amended by deleting the "(i)" following the word "Liens" in
the first line of clause (j) of said subsection, by deleting the word "or"
preceding subclause (ii), and by deleting subclause (ii) of said clause in its
entirety and inserting in lieu thereof a semicolon.
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(b) Subsection 8.3 of the Credit Agreement is hereby further amended by
inserting the phrase "first arising prior to the Amendment No. 4 Effective Date"
in clause (k) of said subsection immediately following the word "Liens" in the
first line of such clause.
(c) Subsection 8.3 of the Credit Agreement is hereby further amended by
deleting clause (n) of said subsection in its entirety and inserting in lieu
thereof the following new clause (n):
"(n) Liens securing the New Indebtedness, provided, that such Liens
shall be junior and subordinate to the Liens securing the Obligations (as
defined in the Guarantee and Collateral Agreement) to the extent and in the
manner set forth in the Intercreditor Agreement;".
2.7 Amendment to Subsection 8.4. (a) Subsection 8.4 of the Credit Agreement
is hereby amended by deleting clause (d) of said subsection and inserting in
lieu thereof the following new clause (d):
"(d) Guarantee Obligations in respect of third-party loans and
advances to officers or employees of the Borrower or any of its Subsidiaries (i)
for travel and entertainment expenses incurred in the ordinary course of
business and (ii) for relocation expenses incurred in the ordinary course of
business;".
(b) Subsection 8.4 of the Credit Agreement is hereby further amended by
deleting clauses (g) and (j) of said subsection in their entireties and
inserting in lieu thereof the following new clauses (g) and (j), respectively:
"(g) [Reserved]".
"(j) [Reserved]".
2.8 Amendments to Subsection 8.6. (a) Subsection 8.6 of the Credit
Agreement is hereby amended by deleting clause (a) of said subsection in its
entirety and inserting in lieu thereof the following new clause (a):
"(a) [Reserved]".
(b) Subsection 8.6 of the Credit Agreement is hereby further amended by
inserting the following proviso at the end of clause (f) of said subsection:
"provided that an amount equal to 100% of the Net Cash Proceeds of any
such abandonment or other Disposition is applied in accordance with subsection
4.4(d)."
(c) Subsection 8.6 of the Credit Agreement is hereby further amended by
deleting clause (g) of said subsection in its entirety and inserting in lieu
thereof the following new clause (g):
"(g) Asset Sales or other Dispositions by the Borrower or any of its
Subsidiaries so long as (i) the aggregate consideration received by the Borrower
or such Subsidiary in connection therewith is not less than the fair market
value of the property subject of such Asset Sale or Disposition and (unless
otherwise consented to by the Administrative
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Agent) at least 75% of such consideration is cash, provided that with respect to
the sale or Disposition by Borrower of Audio Consultants Co. Ltd., the minimum
cash consideration shall be at least 50%, (ii) the Net Cash Proceeds of any such
Asset Sale or Disposition is applied in accordance with subsection 4.4(d),
provided that the Borrower shall not be obligated to so apply the Net Cash
Proceeds from any Asset Sale or Disposition until each such time that the
cumulative Net Cash Proceeds from such Asset Sales and Dispositions that have
theretofore not been applied in accordance with subsection 4.4(d) hereof equals
or exceeds $100,000 and (iii) unless otherwise consented to by the
Administrative Agent (which consent shall not be unreasonably withheld), the Net
Cash Proceeds to be received in connection with such Asset Sale or Disposition
do not exceed $5,000,000;".
(d) Subsection 8.6 of the Credit Agreement is hereby further amended by
deleting the parenthetical phrase "(less the Reinvested Amount with respect
thereto)" from clause (h) of said subsection.
2.9 Amendment to Subsection 8.7. Subsection 8.7 of the Credit Agreement is
hereby amended by deleting clauses (b) and (e) of said subsection in their
entireties and inserting in lieu thereof the following new clauses (b) and (e),
respectively:
"(b) [Reserved]".
"(e) [Reserved]".
2.10 Amendment to Subsection 8.8. Subsection 8.8 of the Credit Agreement is
hereby amended by deleting the table and the proviso contained therein in its
entirety and inserting in lieu thereof the following new table and proviso:
" Test Period Amount
----------- ------
January 1, 2001 - December 31, 2001 $8,000,000
January 1, 2002 - October 31, 2002 $8,000,000
provided that an amount, not to exceed $4,000,000 for any test period,
of Capital Expenditures permitted to be made during any test period
and not made during such test period may be carried over and expended
during the next succeeding test period only."
2.11 Amendments to Subsection 8.9. (a) Subsection 8.9 of the Credit
Agreement is hereby amended by deleting clause (e) of said subsection in its
entirety and inserting in lieu thereof the following new clause (e):
"(e) (i) loans and advances to officers, directors or employees of
Holdings, the Borrower or any of their respective Subsidiaries in the ordinary
course of business for travel and entertainment expenses or relocation expenses
or (ii) relating to indemnification or reimbursement of any officers, directors
or employees in respect of liabilities relating to their serving in any such
capacity or as otherwise specified in subsection 8.10;"
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(b) Subsection 8.9 of the Credit Agreement is hereby further amended by
inserting the parenthetical "(unless otherwise consented to by the
Administrative Agent)" after "25%" in clause (i) of said subsection.
(c) Subsection 8.9 of the Credit Agreement is hereby further amended by
deleting clause (l) of said subsection in its entirety and inserting in lieu
thereof the following new clause (l):
"(l) [Reserved]".
(d) Subsection 8.9 of the Credit Agreement is hereby further amended by
deleting from clause (k) of said subsection the words "or an aggregate amount
not to exceed at any time an amount equal to $7,500,000" and inserting in lieu
thereof the following new language "so long as any such Investment either was
first made prior to the Amendment No. 4 Effective Date, or if made thereafter,
the cash Investment does not in the aggregate exceed, unless otherwise agreed by
the Administrative Agent, an amount equal to $500,000 (exclusive of any
undistributed profits of any such joint venture or similar arrangement that may
accumulate);".
2.12 Amendment to Subsection 8.10. Subsection 8.10 of the Credit Agreement
is hereby amended by deleting the word "or" at the end of clause (v) of said
subsection and by deleting the period at the end of clause (vi) of said
subsection and inserting in lieu thereof "; or" at the end of clause (vi) and
adding the following language after clause (vi):
"(vii) the making of loans by GSCP or an Affiliate thereof to the
Borrower that constitute New Indebtedness."
2.13 Amendment to Subsection 8.12. Subsection 8.12 of the Credit Agreement
is hereby amended by deleting such subsection in its entirety and inserting in
lieu thereof the following new subsection 8.12:
"8.12 Limitation on Optional Payments and Modifications of Debt
Instruments and Other Documents. (a) Make any repurchase or redemption of
any of the Senior Subordinated Notes, the EVI Senior Subordinated Notes or
the New Indebtedness, including, without limitation, any payments on
account of, or for a sinking or other analogous fund for, the repurchase,
redemption, defeasance or other acquisition thereof, except mandatory
payments of principal, interest, fees and expenses required by the terms of
the Senior Subordinated Notes and the Senior Subordinated Note Indenture,
as the case may be, the EVI Senior Subordinated Notes and the EVI Senior
Subordinated Note Indenture, as the case may be, or the notes and documents
with respect to the New Indebtedness, respectively, only to the extent
permitted under the subordination provisions, if any, applicable thereto.
(b) In the event of the occurrence of a Change of Control, repurchase
the Senior Subordinated Notes, the EVI Senior Subordinated Notes or the New
Indebtedness or any portion of either thereof, unless the Borrower shall
have (i) made payment in full of the Loans, all Reimbursement Obligations
and any other amounts then due and owing to any Lender or the
Administrative Agent hereunder and under any Note and cash collateralized
the L/C Obligations on terms reasonably satisfactory to the Administrative
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Agent or (ii) made an offer to pay the Loans, all Reimbursement Obligations
and any amounts then due and owing to each Lender and the Administrative
Agent hereunder and under any Note and to cash collateralize the L/C
Obligations in respect of each Lender and shall have made payment in full
thereof to each such Lender or the Administrative Agent which has accepted
such offer and cash collateralized the L/C Obligations in respect of each
such Lender which has accepted such offer.
(c) Amend, supplement, waive or otherwise modify, including by an
exchange, any of the provisions of any of the Senior Subordinated Notes,
the Senior Subordinated Notes Documents, the EVI Senior Subordinated Notes,
the EVI Senior Subordinated Notes Documents or the notes and documents with
respect to the New Indebtedness:
(i) which amends or modifies the subordination provisions, if any,
contained therein or relating thereto;
(ii) which shortens the fixed maturity or increases the principal
amount of, or increases the rate or shortens the time of payment of
interest on, or increases the amount or shortens the time of payment
of any principal or premium payable whether at maturity, at a date
fixed for prepayment or by acceleration or otherwise of the
Indebtedness evidenced by the Senior Subordinated Notes, the EVI
Senior Subordinated Notes or the notes in respect of the New
Indebtedness, or increases the amount of, or accelerates the time of
payment of, any fees or other amounts payable in connection therewith;
(iii) which relates to any material affirmative or negative covenants
or any events of default or remedies thereunder and the effect of
which is to subject the Borrower or any of its Subsidiaries, to any
more onerous or more restrictive provisions; or
(iv) which otherwise adversely affects the interests of the Lenders as
senior creditors with respect to the Senior Subordinated Notes, the
EVI Senior Subordinated Notes or the New Indebtedness or the interests
of the Lenders under this Agreement or any other Loan Document in any
material respect.
2.14 Amendment to Subsection 8.15. Subsection 8.15 of the Credit Agreement
is hereby amended by inserting the parenthetical phrase "(other than Telex
Communications International, Ltd.)" following the words "Domestic Subsidiary"
in clause (b)(ii) in said subsection.
2.15 Amendment to Section 9. Section 9 of the Credit Agreement is hereby
amended by renumbering clause (m) as clause (n) and inserting the following new
clause (m) in said section:
"(m) there shall have occurred a default in the observance or
performance of any agreement or condition relating to the New Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause or to permit the holder or
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holders of the New Indebtedness to cause with the giving of notice or the lapse
of time, if required, the New Indebtedness to become due prior to its stated
maturity; or".
2.16 Amendment to Schedule II. The Credit Agreement is hereby amended by
deleting Schedule II to the Credit Agreement in its entirety.
SECTION 3. AGREEMENTS.
3.1 Additional Amortization. The Borrower hereby agrees that, unless the
Required Lenders otherwise agree, the Borrower shall have made mandatory
prepayments under subsection 4.4(d) of not less than $20,000,000 during the
period beginning on the Amendment No. 4 Effective Date and ending on December
31, 2001, and the failure to have done so shall constitute an Event of Default
under subsection 9(a) of the Credit Agreement.
3.2 Management Fees. Notwithstanding anything to the contrary contained in
the Credit Agreement, the Borrower represents and warrants that GSCP has
consented to not accept at any time or for any period subsequent to December 31,
2000 and prior to the repayment in full of the Loans and the termination of the
Revolving Credit Commitments any payment in cash for its management fee (as more
fully set forth in the agreement between Telex and GSCP for the rendering of
management consulting or financial advisory services described in Section
8.10(ii) of the Credit Agreement), and the Borrower agrees not to pay such
management fee in cash at any such time; however, such fees may accrue and
remain an obligation of the Borrower.
SECTION 4. WAIVERS.
4.1 Waiver of Subsection 8.1. The Lenders hereby waive any Default or Event
of Default under subsection 9(c) of the Credit Agreement as a result of the
Borrower's failure to maintain the Minimum Consolidated EBITDA, the maximum
Consolidated Fixed Charges Ratio and the maximum Leverage Ratio required
pursuant to subsection 8.1 of the Credit Agreement for the period of four fiscal
quarters ending on December 31, 2000.
4.2 Waiver of Subsection 7.1. The Lenders hereby waive any Default or Event
of Default arising by reason of any failure by the Borrower to comply with the
requirement in subsection 7.1(a) of the Credit Agreement to furnish to the
Administrative Agent for delivery to each Lender prior to March 31, 2001 the
audited consolidated balance sheet of the Borrower and its consolidated
Subsidiaries and the related consolidated statements of operations, changes in
common stockholders' equity and cash flows for the fiscal year ending on
December 31, 2000 (the "2000 Financial Statements"), provided that the foregoing
waiver shall automatically terminate and be of no force or effect unless the
Borrower shall have furnished the 2000 Financial Statements to the
Administrative Agent on or prior to April 30, 2001.
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Section 5. CONSENT
5.1 Intercreditor Agreement. The Lenders hereby consent to the
Administrative Agent's execution and delivery of the Intercreditor Agreement and
the performance of its obligations thereunder.
SECTION 6. CONDITIONS PRECEDENT.
6.1 Effective Date. This Amendment shall become effective as of the date
first set forth above (the "Amendment No. 4 Effective Date") following the date
on which all of the following conditions have been satisfied or waived; provided
that the Amendment No. 4 Effective Date shall not occur if the foregoing
conditions are not so satisfied or waived prior to April 13, 2001, except in the
case of the condition set forth in clause (b)(i) below which shall have been
satisfied no later than March 26, 2001:
(a) New Indebtedness. (i) The New Lenders and the Borrower shall have duly
executed and delivered the documents relating to the New Indebtedness, in a
form and substance reasonably satisfactory to the Administrative Agent, and
(ii) the Borrower shall have received not less than $15 million of the New
Indebtedness and such funds shall have been (x) applied to the payment of
interest under the Borrower's Senior Subordinated Notes; (y) used for
general corporate purposes; and/or (z) prepayment of the Revolving Credit
Loans pursuant to subsection 4.4(a) of the Credit Agreement; provided that
no such prepayments of the Revolving Credit Loans shall reduce the
Revolving Credit Commitments unless requested by the Borrower;
(b) Notes Documents. (i) The Borrower shall have mailed a consent
solicitation to holders of the EVI Senior Subordinated Notes and the Senior
Subordinated Notes consenting to the incurrence of the New Indebtedness and
waiving any defaults or events of default that have occurred and then are
continuing under the EVI Senior Subordinated Indenture and the Senior
Subordinated Indenture, respectively, and (ii) the Senior Subordinated
Notes Documents and the EVI Senior Subordinated Notes Documents shall have
been amended, in form and substance reasonably satisfactory to the
Administrative Agent, to permit the incurrence of the New Indebtedness on
the terms and conditions contemplated hereby.
(c) Amendment Fee. The Administrative Agent shall have received, for the
benefit of each consenting Lender, an amendment fee of 0.25% of the
Revolving Credit Commitment and outstanding Terms Loans of each Lender
consenting to this Amendment;
(d) Arrangement Fee. The Administrative Agent shall have received an
arrangement fee, for its own account, in the amount of $200,000; and
(e) Execution and Delivery. The Administrative Agent shall have received
counterparts of (i) this Amendment duly executed by the Borrower, the
Guarantors and the Required Lenders; provided that Sections 2.2 and 2.3(b)
of this Amendment shall not be effective unless the Administrative Agent
shall have also received duly executed
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counterparts of this Amendment from Tranche A Term Loan Lenders the Tranche
A Term Loan Commitment Percentages of which aggregate more than 50% of the
outstanding Tranche A Term Loans and Tranche B Term Loan Lenders the
Tranche B Term Loan Commitment Percentages of which aggregate more than 50%
of the outstanding Tranche B Term Loans and (ii) the Intercreditor
Agreement duly executed by each of the parties thereto.
SECTION 7. GENERAL.
7.1 Representation and Warranties. In order to induce the Administrative
Agent and the Lenders to enter into this Amendment, the Borrower hereby
represents and warrants to the Administrative Agent and the Lenders that the
representations and warranties of the Borrower contained in the Loan Documents
are true and correct in all material respects on and as of the Amendment No. 4
Effective Date (after giving effect hereto) as if made on and as of the
Amendment No. 4 Effective Date (except where such representations and warranties
expressly relate to an earlier date in which case such representations and
warranties were true and correct in all material respects as of such earlier
date); provided that all references to the "Credit Agreement" in any Loan
Document shall be and are deemed to mean the Credit Agreement as amended hereby.
7.2 Affirmation of Guarantees. Each Guarantor party hereto hereby consents
to the execution, delivery and effectiveness of this Amendment and reaffirms its
obligations under the Guarantee and Collateral Agreement.
7.3 Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to the
Administrative Agent.
7.4 Counterparts. This Amendment may be executed in two or more
counterparts (including by facsimile transmission), each of which shall
constitute an original, but all of which when taken together shall constitute
but one instrument.
7.5 Headings. Section headings used in this Amendment are for convenience
of reference only, are not part of this Amendment and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Amendment.
7.6 Continuing Effect of Loan Documents. This Amendment shall not
constitute an amendment or waiver of any other provision of the Credit Agreement
not expressly referred to herein and shall not be construed as a waiver or
consent to any further or future action on the part of the Borrower that would
require a waiver or consent of the Required Lenders or Lenders, as the case may
be, or the Administrative Agent. Except as expressly amended, modified and
supplemented hereby, the provisions of the Credit Agreement and the other Loan
Documents are and shall remain in full force and effect.
12
7.7 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
[INTENTIONAL END OF PAGE]
13
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
TELEX COMMUNICATIONS, INC.
By: ___________________________
Title:
TELEX COMMUNICATIONS GROUP, INC.
By: ___________________________
Title:
TELEX COMMUNICATIONS INTERNATIONAL,
LTD.
By: ___________________________
Title:
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By: ___________________________
Title:
XXXXXX XXXXXXX SENIOR FUNDING, INC.,
as Documentation Agent
By: ___________________________
Title:
U.S. BANK NATIONAL ASSOCIATION
By: ___________________________
Title:
XXXXXX FINANCIAL, INC.
By: ___________________________
Title:
THE BANK OF NOVA SCOTIA
By: ___________________________
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By: ___________________________
Title:
XXXXXXX XXXXX PRIME RATE
PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: ___________________________
Title:
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
BY: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By: ___________________________
Title:
XXXXXX XXXXXXX XXXX XXXXXX
PRIME INCOME TRUST
By: ____________________________
Title:
CRESCENT/MACH I PARTNERS, L.P.
by: TCW ASSET MANAGEMENT
COMPANY
ITS INVESTMENT MANAGER
By: ____________________________
Title:
KZH-ING-1 LLC (formerly known as KZH
HOLDING CORPORATION II)
By: ____________________________
Title:
THE TRAVELERS INSURANCE COMPANY
By: ____________________________
Title:
KZH PAMCO LLC
By: ____________________________
Title:
INDOSUEZ CAPITAL FUNDING III,
LIMITED
BY: INDOSUEZ CAPITAL, AS
PORTFOLIO ADVISOR
By: ____________________________
Title:
PAMCO CAYMAN LTD.
BY: HIGHLAND ASSET MANAGEMENT
COMPANY
AS COLLATERAL MANAGER
By: ____________________________
Title:
XXX CAPITAL FUNDING LP
BY: HIGHLAND CAPITAL
MANAGEMENT L.P.
AS COLLATERAL MANAGER
By: ____________________________
Title:
ML CBO IV (CAYMAN) LTD.
BY: HIGHLAND CAPITAL
MANAGEMENT L.P.
AS COLLATERAL MANAGER
By: ____________________________
Title:
KZH-CRESCENT LLC
By: ____________________________
Title:
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT &
RESEARCH, AS INVESTMENT ADVISOR
By: ____________________________
Title:
NATEXIS BANQUE BFCE
By: ____________________________
Title:
WAYLAND INVESTMENT FUND, LLC
By: CFSC WAYLAND ADVISERS, INC.
By: ____________________________
Title:
ELF FUNDING TRUST I
By: ____________________________
Title:
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: ____________________________
Title:
ARK CLO 2000-1 LIMITED
By: Patriarch Partners, LLC,
Its Collateral Manager
By: ____________________________
Name:
Title:
