Exhibit 4.3(o)
INTERCREDITOR AMENDMENT
INTERCREDITOR AMENDMENT, dated as of November 21, 2001 (the "Amendment"),
to the Intercreditor Agreement, dated as of April 11, 2001 (as amended,
supplemented or otherwise modified from time to time, the "Intercreditor
Agreement"), among (a) JPMorgan Chase Bank (f/k/a The Chase Manhattan Bank), as
administrative agent (in such capacity, together with its successors and assigns
in such capacity, the "Senior Agent") under the Credit Agreement, dated as of
May 6, 1997 (as amended, supplemented or otherwise modified from time to time,
the "Senior Credit Agreement"), among Telex Communications, Inc. (the
"Borrower"), the several banks and other financial institutions from time to
time parties thereto (the "Senior Lenders"), the Senior Agent and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Funding, Inc., as documentation agent for the Senior Lenders; (b) GSCP
Recovery (US), LLC (f/k/a TCI Investments LLC) and GoldenTree Asset Management,
LLC (as successor co-agent to GoldenTree High Yield Opportunities I, L.P.), as
co-agents (in such capacity, together with their successors and assigns, the
"Junior Agents") for the holders of the Second Priority Obligations referred to
below (in such capacity, the "Junior Lenders"); (c) the Borrower; and (d) Telex
Communications International, Ltd. (the "Junior Guarantor").
W I T N E S S E T H:
WHEREAS, the parties hereto (other than the Junior Guarantor) are parties
to the Intercreditor Agreement;
WHEREAS, the Senior Lenders, the Borrower, and the Senior Agent are
simultaneously herewith executing and delivering Waiver, Amendment No. 5,
Agreement and Consent, dated as of the date hereof ("Amendment No. 5"), to and
under the Senior Credit Agreement pursuant to which certain provisions of the
Senior Credit Agreement are being amended to, among other things, permit the
Borrower to incur additional indebtedness under the Junior Credit Agreement; and
WHEREAS, it is a condition to the effectiveness of Amendment No. 5 that
the parties hereto execute and deliver this Amendment to amend the terms of the
Intercreditor Agreement.
NOW, THEREFORE, in consideration of the premises, the parties hereto
hereby agree as follows:
1. Definitions.
(a) As used in this Amendment, (i) the terms defined in the preamble
and recitals shall have the meanings assigned thereto and (ii) capitalized terms
that are used herein without being defined shall have the meanings assigned
thereto in the Intercreditor Agreement.
(b) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Amendment shall refer to this Amendment as a
whole and not to any particular provision of this Amendment, and paragraph
references are to this Amendment unless otherwise specified.
(c) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
2. Amendment to Section 1. Section 1 of the Intercreditor Agreement is
hereby amended by deleting the definitions of "First Priority Obligations",
"Junior Security Documents", "Permitted Payments" and "Second Priority
Obligations" where they appear therein and inserting in lieu thereof, in their
proper alphabetical order the following new definitions:
"First Priority Obligations" means the collective reference to all of the
obligations, liabilities and indebtedness of the Borrower under and as defined
in any of the Senior Security Documents; provided that the principal amount of
the First Priority Obligations shall not exceed $120,000,000 less (i) the amount
of prepayments of the Term Loans and the permanent reductions of the Revolving
Credit Commitment and (ii) any Net Cash Proceeds of an Asset Sale or other
Disposition, other than the Hearing Aid Disposition, retained by the Borrower
(and not applied to the permanent reduction and/or prepayment of the First
Priority Obligations), provided further that, for purposes of Section 6(c)
hereof, the principal amount of the First Priority Obligations shall not exceed
the sum of (x) the principal amount of the First Priority Obligations
outstanding as of the date of the commencement of a case under the Bankruptcy
Code and (y) $25,000,000, which such total shall be reduced by any Net Cash
Proceeds of an Asset Sale or other Disposition, other than the Hearing Aid
Disposition, retained by the Borrower (and not applied to the permanent
reduction and/or prepayment of the First Priority Obligations).
"Guarantor" means any Subsidiary of the Borrower which guarantees payment
of any First Priority Obligations or Second Priority Obligations.
"Junior Security Documents" means the collective reference to the security
and guarantee documents delivered to the Junior Agents in connection with the
Junior Credit Agreement granting a Lien on any asset or assets of any Person to
secure, or providing a guarantee of, the obligations and liabilities of the
Borrower under the Junior Credit Agreement.
"Permitted Payments" means (i) the issuance by the Borrower of additional
Junior Notes to the Junior Lenders in respect of accrued interest on the Second
Priority Obligations, (ii) the payment to each Junior Lender, on the Amendment
No. 4 Effective Date, in cash of fees in an aggregate amount not to exceed 6% of
the principal amount of the New Indebtedness provided by such Junior Lender upon
the incurrence of such New Indebtedness by the Borrower, (iii) the payment to
each Junior Lender, on the Amendment No. 5 Effective Date, in cash of fees in an
aggregate amount not to exceed 6% of the principal amount of the additional New
Indebtedness provided by such Junior Lender on that date, (iv) the payment to
each Junior Lender of interest in cash on the New Indebtedness, as permitted by
Section 8.12(e) of the Senior Credit Agreement and (v) the payment of the Second
Priority Obligations upon the stated maturity date of the Junior Notes (which
shall be no earlier than July 31, 2004) so long as, with respect to clauses (iv)
and (v), no Default or Event of Default shall have occurred and be continuing
under the Senior Credit Agreement on the date of such payment.
"Second Priority Obligations" means the collective reference to all of the
obligations, liabilities and indebtedness of the Borrower and any Guarantor
under and as defined in the Junior Loan Documents."
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3. Amendment to Section 4(b)(iv). Section 4(b)(iv) of the Intercreditor
Agreement is hereby amended by adding the phrase, "other than the Hearing Aid
Disposition," after the phrase "Asset Sale or Disposition" each time such phrase
appears in the proviso thereto.
4. Agreement. The Junior Guarantor, the Junior Agents and each Junior
Lender agree, for itself and each future holder of the Second Priority
Obligations, that the obligations of the Junior Guarantor under the Junior Loan
Document are "subordinate and junior in right of payment" (as that term is
defined in Section 3(b) of the Intercreditor Agreement) to all First Priority
Obligations on the same terms as the Second Priority Obligations of the Borrower
are "subordinate and junior in right of payment" to the First Priority
Obligations of the Borrower, mutatis mutandis. The Borrower, the Junior Agents
and each Junior Lender agree, for itself and each future holder of the Second
Priority Obligations, that any Subsidiary of the Borrower who after the date
hereof executes a Junior Loan Document, shall provide an acknowledgement, in
form and substance satisfactory to the Senior Agent that its obligations under
such Junior Loan Document are subject in all respects to the terms of the
Intercreditor Agreement.
5. Conditions to Effectiveness. This Amendment shall become effective
upon, and only upon, the Amendment No. 5 Effective Date, as such term is defined
in Amendment No. 5.
6. Limited Effect. Except as expressly modified by this Amendment, all of
the provisions of the Intercreditor Agreement are, and shall continue to be, in
full force and effect in accordance with its terms. Each party hereto
acknowledges and agrees that this Amendment is limited as specified herein and
shall not constitute a modification, amendment or waiver of any other provision
of the Intercreditor Agreement or any of the Junior Loan Documents or the Senior
Loan Documents or indicate the willingness of any party to consent to any other
modification, amendment or waiver of any other provision of the Intercreditor
Agreement or any of the Junior Loan Documents or the Senior Loan Documents. This
Amendment is not intended to confer any rights or benefits on any Person other
than the parties hereto and their respective successors and assigns.
7. Counterparts. This Amendment may be executed by one or more of the
parties on any number of separate counterparts (including by facsimile
transmission), each of which shall constitute an original, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
8. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. Integration. This Amendment constitutes the entire agreement of the
parties hereto concerning the subject matter hereof and may not be contradicted
by evidence of prior, contemporaneous, or subsequent oral agreements of the
parties hereto.
10. Governing Law; Jurisdiction. This Amendment shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
Each party hereto agrees that all judicial proceedings brought against it
arising out of or relating to this Amendment or its obligations hereunder may be
brought in any state or federal court of competent jurisdiction in the State,
County and City of New York, and accepts generally and unconditionally the
nonexclusive jurisdiction and venue of such courts.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
JPMORGAN CHASE BANK,
as Senior Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
GSCP RECOVERY (US), LLC
as Junior Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Managing Director
GOLDENTREE ASSET MANAGEMENT, LLC
as Junior Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Partner
TELEX COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President and Chief
Financial Officer
TELEX COMMUNICATIONS INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Vice President and Chief
Financial Officer
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