EXHIBIT 4.3
INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of November 19, 2003 is
entered into among GENERAL ELECTRIC CAPITAL CORPORATION, as Agent (as defined
below), BNY MIDWEST TRUST COMPANY, as Trustee under the Indenture (as such terms
are defined below); BNY MIDWEST TRUST COMPANY, as Collateral Agent under the
Noteholder Security Agreement (as such terms are defined below), and the parties
whose names are set forth below as "Credit Parties" on the signature pages
hereto (each such Credit Party being referred to as an "Obligor", and
collectively, the "Obligors").
W I T N E S S E T H :
WHEREAS, the Obligors, the lenders party to the Senior Credit
Agreement referred to below as lenders and issuing banks, and General Electric
Capital Corporation, as agent for such lenders and issuing banks (in such
capacity, the "Agent") propose to enter into a Credit Agreement, dated as of
November 19, 2003, (as such agreement may be amended, amended and restated,
supplemented or otherwise modified, from time to time at the option of the
parties thereto and any other agreements pursuant to which any of the
indebtedness, commitments, obligations, costs, expenses, fees, reimbursements,
indemnities or other obligations payable or owing thereunder may be refinanced,
restructured, renewed, extended, increased, refunded or replaced (including
pursuant to a DIP Financing, as hereinafter defined) as any such other
agreements may from time to time at the option of the parties thereto be
amended, amended and restated, supplemented, renewed or otherwise modified from
time to time, being collectively referred to herein the "Senior Credit
Agreement"); and
WHEREAS, Telex Communications, Inc., a Delaware corporation
("Telex"), the Obligors parties thereto as "Guarantors" thereunder and BNY
MIDWEST TRUST COMPANY, as trustee have entered into an Indenture, dated as of
November 19, 2003 (as such Indenture may be amended, amended and restated,
supplemented or otherwise modified, from time to time at the option of the
parties thereto, the "Indenture") governing the rights and duties of Telex under
its 11 1/2% Senior Secured Notes due 2008 in the original aggregate principal
amount of $125,000,000 (as amended, modified or (due to loss or mutilation)
replaced, from time to time in accordance with the terms of the Senior Credit
Agreement, the "Notes");
WHEREAS, Telex and certain Subsidiaries of Telex have entered
into the Noteholder Security Agreement, which Noteholder Security Agreement
shall provide for an assignment, pledge and grant or a security interest in
certain collateral in favor of the Collateral Agent and for the benefit of the
Noteholders, the Trustee and the Collateral Agent; and
WHEREAS, it is a condition precedent to the effectiveness of
the Senior Credit Agreement that the Agent (for itself and for the benefit of
the Senior Lenders), the Trustee (on behalf of itself and on behalf and for the
benefit of the Noteholders), the Collateral Agent and the Obligors enter into
this Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
covenants and obligations herein set forth and for other good and valuable
consideration, the adequacy and receipt of which are hereby acknowledged, and in
reliance upon the representations, warranties and covenants herein contained,
the parties hereto, intending to be legally bound, hereby agree as follows:
SECTION 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and the plural form of the terms indicated) and
capitalized terms defined in the Senior Credit Agreement used (but not
otherwise defined) herein shall have the meanings ascribed to them in the Senior
Credit Agreement (as in effect on the date hereof) :
"Agent" shall include, in addition to the Agent referred to in
the recitals hereto, the then acting collateral agent for the Senior Lenders
under the Senior Lender Documents and any successor thereto exercising
substantially the same rights and powers, or if there is no acting Agent under
the Senior Credit Agreement, the Required Lenders.
"Agreement" shall mean this Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with the
terms hereof.
"Bankruptcy Code" shall mean title 11 of the United States
Code (11 U.S.C. 101 et seq.), as amended from time to time and any successor
statute.
"Business Day" shall mean any day other than Saturday, Sunday
and a day that is a legal holiday under the laws of the State of New York or on
which banking institutions in the City of New York and the State of Missouri are
required or authorized by law or other governmental action to close.
"Collateral" shall mean all of the assets of the Obligors
constituting Senior Lender Collateral.
"Collateral Agent" shall mean BNY Midwest Trust Company in its
capacity as collateral agent under the Indenture and any successor in such
capacity.
"Comparable Noteholder Collateral Document" means, in relation
to any Collateral subject to any Senior Lender Collateral Document, that
Noteholder Collateral Document which creates a security interest in the same
Collateral, granted by the same Obligor, as applicable.
"Discharge of Senior Lender Claims" shall mean, except as
otherwise provided in Section 6.5, payment in full in cash of the principal of,
interest and premium, if any, on all Indebtedness outstanding under the Senior
Credit Agreement and all letters of credit outstanding thereunder, delivery of
cash collateral in respect thereof equal to 105% of the aggregate undrawn amount
of all letters of credit in compliance with the Senior Credit Agreement, as
applicable, in each case after or concurrently with termination of all
commitments to extend credit thereunder, and payment in full in cash of all
other Senior Lender Claims, other than those that constitute Unasserted
Contingent Obligations.
"Guarantor" means each Domestic Subsidiary of Telex that is a
guarantor of the Noteholder Claims.
"Indebtedness" means, with respect to any specified Person
without duplication, any indebtedness of such Person, whether or not contingent
(a) in respect of borrowed money; (b) evidenced by bonds, notes, debentures or
other similar instruments or letters of credit (or reimbursement agreements in
respect thereof); (c) in respect of banker's acceptances; (d) representing
obligations in connection with Capital Leases; (e) representing the balance
deferred and unpaid of the purchase price of any property, except any such
balance that constitutes an accrued expense or trade payable, if and to the
extent any of the preceding items (other than letters of credit) would appear as
a liability upon a balance sheet of the specified Person prepared in accordance
with GAAP. In addition, the term "Indebtedness" includes all Indebtedness of any
other Person secured by a Lien on any asset of the specified Person (whether or
not such Indebtedness is assumed by the specified Person) to the extent of the
fair market value of such asset where the Indebtedness so secured is not the
Indebtedness of such Person and, to the extent not otherwise included, the
guaranty by the specified Person of the Indebtedness of any other Person. The
amount of
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any Indebtedness outstanding as of any date will be (i) the accreted value of
the Indebtedness, in the case of any Indebtedness issued with original issue
discount (as determined in accordance with the agreements and instruments
evidencing such Indebtedness); and (ii) the principal amount of the
Indebtedness, together with any interest on the Indebtedness that is more than
30 days past due, in the case of any other Indebtedness. Indebtedness of the
Obligors shall not include any Indebtedness of Telex that has been either
satisfied and discharged or defeased through covenant defeasance or legal
defeasance.
"Indenture" shall have the meaning set forth in the recitals
hereto.
"Insolvency or Liquidation Proceeding" shall mean (a) any
voluntary or involuntary case or proceeding under the Bankruptcy Code with
respect to any Obligor as a debtor, (b) any other voluntary or involuntary
insolvency, reorganization or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
with respect to any Obligor as a debtor or with respect to any of their
respective assets, (c) any liquidation, dissolution, reorganization or winding
up of any Obligor whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy or (d) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of any Obligor.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, security interest, deposit arrangement, encumbrance,
lien or preference priority or other security agreement or other preferential
arrangement whatsoever, including, without limitation, any right of setoff, any
conditional sale or other title retention agreement, the interest of a lessor
under a lease or any financing lease having substantially the same economic
effect as any of the foregoing and the filing of any financing statement naming
the owner of the asset to which such Lien relates as debtor.
"Noteholder" shall mean a holder of Noteholder Claims.
"Noteholder Claims" shall mean all Indebtedness, Obligations
and other liabilities (contingent or otherwise) arising under or with respect to
the Noteholder Documents or any of them.
"Noteholder Collateral" shall mean all of the assets of the
Obligors whether real, personal or mixed, in which the Noteholders, the Trustee
or the Collateral Agent or any of them now or hereafter holds a Lien as security
for any Noteholder Claim.
"Noteholder Collateral Documents" shall mean the Noteholder
Security Agreement, the Noteholder Mortgages, and any document or instrument
executed and delivered pursuant to any Noteholder Document at any time or
otherwise pursuant to which a Lien is granted by any Obligor to secure the
Noteholder Claims or under which rights or remedies with respect to any such
Lien are governed, as the same may be amended, renewed, extended, supplemented
or modified from time to time.
"Noteholder Documents" shall mean the Indenture, the Notes,
the Noteholder Collateral Documents, and any other related document or
instrument executed and delivered pursuant to any Noteholder Document at any
time or otherwise evidencing any Noteholder Claims, as the same may be amended,
renewed, extended, supplemented or modified from time to time.
"Noteholder Liens" shall mean Liens in Collateral in favor of
the Collateral Agent created as collateral security for Noteholder Claims.
"Noteholder Mortgages" shall mean a collective reference to
each mortgage, deed of trust and any other document or instrument under which
any Lien on real property owned or leased by any Obligor is granted to secure
the Noteholder Claims or under which rights or remedies with respect to any
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such Liens are governed, as the same may be amended, renewed, extended,
supplemented or modified from time to time in accordance with the terms hereof.
"Noteholder Security Agreement" shall mean the Pledge and
Security Agreement, dated as of November 19, 2003, by and among certain Obligors
and the Collateral Agent, as the same may be amended, renewed, extended,
supplemented or modified from time to time in accordance with the terms hereof.
"Obligations" shall mean any principal, premium, interest,
penalties, fees, indemnifications, reimbursements, damages and other liabilities
payable under the documentation governing any Indebtedness (including any
obligation to post cash collateral in respect of letters of credit and any other
obligations).
"Person" shall mean any person, individual, sole
proprietorship, partnership, joint venture, corporation, unincorporated
organization, association, institution, entity or other party, including,
without limitation, any government and any political subdivision, agency or
instrumentality thereof.
"Pledged Collateral" shall have the meaning set forth in the
Pledge Agreements, and shall include any other tangible property in the
possession of the Agent (or its agents or bailees) in which a security interest
is perfected by such possession.
"Recovery" shall have the meaning set forth in Section 6.5
hereof.
"Required Lenders" shall mean, with respect to any amendment
or modification of the Senior Credit Agreement, or any termination or waiver of
any provision of the Senior Credit Agreement, or any consent or departure by any
Obligor therefrom, those Senior Lenders, the approval of which is required to
approve such amendment or modification, termination or waiver or consent or
departure.
"Senior Lender Claims" shall mean (a) the principal of all
Indebtedness outstanding under one or more of the Senior Lender Documents to the
extent not prohibited by the Indenture (as in effect on the date hereof), and
(b) all other Obligations not constituting principal of Indebtedness of any
Obligor under the Senior Lender Documents, including, without limitation, all
claims under the Senior Lender Documents for interest, fees, expense
reimbursements, indemnification and other similar claims. Senior Lender Claims
shall include all interest accrued or accruing (or which would, absent the
commencement of an Insolvency or Liquidation Proceeding, accrue) after the
commencement of an Insolvency or Liquidation Proceeding in accordance with and
at the rate specified in the Senior Credit Agreement whether or not the claim
for such interest is allowed as a claim in such Insolvency or Liquidation
Proceeding. To the extent any payment with respect to the Senior Lender Claims
(whether by or on behalf of any Obligor, as proceeds of security, enforcement of
any right of setoff or otherwise) is declared to be fraudulent or preferential
in any respect, set aside or required to be paid to a debtor in possession,
trustee, receiver or similar Person, then the obligation or part thereof
originally intended to be satisfied shall be deemed to be reinstated and
outstanding as if such payment had not occurred. Notwithstanding anything to the
contrary contained in the first sentence of this definition, any principal
Indebtedness (including reimbursement obligations for drawn or undrawn letters
of credit) incurred under the Senior Credit Agreement shall constitute a "Senior
Lender Claim" (whether or not such Indebtedness is at any time determined not to
have been permitted to be incurred under the Indenture), to the extent, after
giving effect to such incurrence, the aggregate principal amount of Indebtedness
outstanding under the Senior Credit Agreement does not exceed $15,000,000 (less
any prior permanent reductions in the Revolving Loan Commitment).
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"Senior Lender Collateral" shall mean all of the assets of the
Obligors in which the Senior Lenders or the Agent or any of them now or
hereafter holds a Lien as security for any Senior Lender Claim.
"Senior Lender Collateral Documents" shall mean each Security
Agreement, each Pledge Agreement, the Blocked Account Agreements, each Mortgage,
each lock-box account agreement, each deposit account control agreement, each
securities account control agreement, and each other Loan Document or other
document or instrument pursuant to which a Lien is granted securing the Senior
Lender Claims, as the same may be amended, renewed, extended, supplemented or
modified from time to time.
"Senior Lender Documents" shall mean the Senior Credit
Agreement, the Guaranties and each of the other Loan Documents, the Senior
Lender Collateral Documents, all documents and instruments evidencing any other
obligation under the Senior Credit Agreement, and any other related document or
instrument executed or delivered pursuant to any Senior Lender Document at any
time or otherwise evidencing any Senior Lender Claims, as any such document or
instrument may from time to time be amended, renewed, restated, supplemented or
otherwise modified.
"Senior Lender Lien" shall mean Liens in Collateral in favor
of the Agent or Senior Lenders created as collateral security for the Senior
Lender Claims.
"Senior Lenders" shall mean the Persons holding Senior Lender
Claims, including, without limitation, the Agent.
"Trustee" shall mean, at any time, BNY Midwest Trust Company,
in its capacity as trustee under the Indenture, and any successor in such
capacity.
"Unasserted Contingent Obligations" shall mean, at any time,
Obligations for taxes, costs, indemnifications, reimbursements, damages and
other liabilities (except for (i) the principal of and interest and premium (if
any) on, and fees relating to, any Indebtedness and (ii) contingent
reimbursement obligations in respect of amounts that may be drawn under letters
of credit) in respect of which no claim or demand for payment has been made (or,
in the case of Obligations for indemnification, no notice for indemnification
has been issued by the indemnitee) at such time.
"Uniform Commercial Code" or "UCC" shall mean the Uniform
Commercial Code of the State of New York, as amended from time to time.
SECTION 2. LIEN PRIORITIES.
2.1 Subordination. Notwithstanding the date, manner or
order of grant, attachment or perfection of any Liens granted to the Collateral
Agent, the Trustee or the Noteholders on the Collateral or of any Liens granted
to the Agent or the Senior Lenders on the Collateral and notwithstanding any
provision of the UCC, or any applicable law, the avoidance or setting aside of
any lien on or security interest granted to the Agent or Senior Lenders in the
Collateral, or the Noteholder Documents or the Senior Lender Documents or any
other circumstance whatsoever, the Trustee, on behalf of itself and the
Noteholders, and the Collateral Agent, hereby agree that: (a) any Senior Lender
Lien now or hereafter held by the Agent or the Senior Lenders shall be senior
and prior to any Noteholder Lien; and (b) any Noteholder Lien now or hereafter
held by the Trustee, the Collateral Agent or the Noteholders regardless of how
acquired, whether by grant, statute, operation of law, subrogation or otherwise,
shall be junior and subordinate in all respects to all Senior Lender Liens. All
Senior Lender
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Liens shall be and remain senior to all Noteholder Liens for all purposes,
whether or not such Senior Lender Liens are subordinated to any Lien securing
any other obligation of any Obligor.
2.2 Prohibition on Contesting Liens. The Trustee, on
behalf of itself and the Noteholders, and the Collateral Agent, agree that until
the Discharge of Senior Lender Claims, neither the Collateral Agent, the Trustee
nor any Noteholder shall (i) request judicial relief, in an Insolvency or
Liquidation Proceeding or in any other court, that would hinder, delay, limit or
prohibit the exercise or enforcement of any right or remedy otherwise available
to the holders of Senior Lender Liens or that would limit, invalidate, avoid or
set aside any Senior Lender Lien or Senior Lender Collateral Document or
subordinate any Senior Lender Lien to any Noteholder Lien or grant any Senior
Lender Lien equal ranking to any Noteholder Lien; (ii) oppose or otherwise
contest any motion for relief from the automatic stay or from any injunction
against foreclosure or enforcement of Senior Lender Liens made by any holder of
Liens in any Insolvency Liquidation Proceeding; (iii) oppose or otherwise
contest any exercise by any holder of Senior Lender Liens of the right to credit
bid Senior Lender Claims at any sale in foreclosure of Senior Lender Liens; or
(iv) oppose or otherwise contest any other request for judicial relief made in
any court by any holder of Senior Lender Liens relating to the enforcement of
any Senior Lender Lien.
2.3 No New Liens. So long as the Discharge of Senior
Lender Claims has not occurred, the parties hereto agree that each Obligor shall
not grant any Lien on any of its assets, in favor of the Collateral Agent, the
Trustee or the Noteholders unless such Obligor, has granted a similar Lien on
such assets in favor of the Agent or the Senior Lenders and any property subject
to any such Lien shall constitute Collateral.
SECTION 3. ENFORCEMENT.
3.1 Exercise of Remedies by Agent.
(a) So long as the Discharge of Senior Lender Claims has
not occurred, whether or not any Insolvency or Liquidation Proceeding has been
commenced by or against any Obligor,
(i) the Collateral Agent, the Trustee and the
Noteholders will not, and no Noteholder shall instruct the Collateral Agent or
Trustee to, exercise or seek to exercise any rights or remedies (including
setoff) with respect to any Collateral, take any action to enforce, collect or
realize upon any Collateral, institute any action or proceeding with respect to
such rights or remedies, including, without limitation, any action of
foreclosure, or contest protest or object to any foreclosure proceeding or
action brought by the Agent or any Senior Lender, the exercise of any right
under any control agreement in respect of a deposit account or securities
entitlement constituting Collateral, landlord waiver or bailee's letter or
similar agreement or arrangement to which the Collateral Agent, the Trustee or
any Noteholder is a party, or any other exercise by any such party, of any
rights and remedies relating to the Collateral under the Senior Lender Documents
or otherwise, or object to the forbearance by the Agent or the Senior Lenders
from bringing or pursuing any foreclosure proceeding or action or any other
exercise of any rights or remedies relating to the Collateral and, without
limitation, the Collateral Agent, the Trustee and the Noteholders shall not
(1) take possession of or control over
any Collateral;
(2) exercise any collection rights in
respect of any Collateral, exercise any voting, other incidental rights of
ownership or similar rights in respect of Collateral consisting of equity
interests, or retain any proceeds of accounts and other obligations receivable
paid to it directly by any account debtor;
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(3) exercise any right of set-off
against any property subject to any Senior Lender Lien;
(4) foreclose upon any Collateral or
take or accept any transfer of title in lieu of foreclosure upon any Collateral;
(5) enforce any claim to the proceeds
of insurance upon any Collateral;
(6) deliver any notice, instruction,
claim or demand relating to the Collateral to any Person (including any
securities intermediary, depositary bank, landlord or issuer of uncertificated
securities) in the possession or control of any Collateral or acting as bailee,
custodian or agent for any holder of any Senior Lender Lien in respect of any
Collateral;
(7) otherwise enforce any remedy
available upon default for the enforcement of any Lien upon the Collateral;
(8) deliver any notice or commence any
proceeding for any of the foregoing purposes; or
(9) seek relief in any Insolvency or
Liquidation Proceeding permitting it to do any of the foregoing, and
(ii) the Agent and the Senior Lenders shall have
the exclusive right to enforce rights, exercise remedies (including, without
limitation, setoff and the right to credit bid their debt) refrain from
enforcing or exercising remedies, and make determinations regarding release,
disposition, or restrictions with respect to the Collateral without any
consultation with or the consent of the Collateral Agent, the Trustee or any
Noteholder, all according to the discretion and exercise of the business
judgment of the Agent and Senior Lenders, including, without limitation, the
exclusive right to take the actions enumerated in clauses (1) through (9) of
Section 3.1(a)(i). In connection therewith, each of the Noteholders, and the
Trustee, and the Collateral Agent waives any and all rights to affect the method
or challenge the appropriateness of any action by the Agent or any Senior Lender
and hereby consents to the Agent or any Senior Lender exercising or not
exercising such rights and remedies as if no Noteholder existed, except only
that the Collateral Agent, the Trustee and the Noteholders reserve all rights
granted by law: to request or receive notice of any sale of Collateral in
foreclosure of any Senior Lender Lien. In exercising rights and remedies with
respect to the Collateral, the Agent and the Senior Lenders may enforce the
provisions of the Senior Lender Documents and exercise remedies thereunder, all
in such order and in such manner as they may determine in the exercise of their
sole discretion. Such exercise and enforcement shall include, without
limitation, the rights of an agent appointed by them to sell or otherwise
dispose of Collateral upon foreclosure, to incur expenses in connection with
such sale or disposition, and to exercise all the rights and remedies of a
secured lender under the Uniform Commercial Code of any applicable jurisdiction
and of a secured creditor under bankruptcy or similar laws of any applicable
jurisdiction.
(b) The Trustee, on behalf of itself and the Noteholders
and the Collateral Agent, agree that none of them will take or receive any
Collateral or any proceeds of Collateral in connection with the exercise of any
right or remedy (including setoff) with respect to any Collateral, unless and
until the Discharge of Senior Lender Claims has occurred. Without limiting the
generality of the foregoing, unless and until the Discharge of Senior Lender
Claims has occurred, the sole right of the Collateral Agent, the Trustee and the
Noteholders with respect to the Collateral is to hold a Lien on the Collateral
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pursuant to the Noteholder Documents for the period and to the extent granted
therein and to receive a share of the proceeds thereof, if any, after the
Discharge of the Senior Lender Claims has occurred.
(c) The Trustee, on behalf of itself and the Noteholders,
and the Collateral Agent, agree that none of the Collateral Agent, the Trustee
or the Noteholders will take any action that would hinder any exercise of
remedies undertaken by the Agent under the Senior Loan Documents, including any
sale, lease, exchange, transfer or other disposition of the Collateral, whether
by foreclosure or otherwise, and the Collateral Agent, for itself and the
Noteholders, and the Trustee, hereby waive any and all rights it or the
Noteholders may have as a junior lien creditor or otherwise to object to the
manner in which the Agent or the Senior Lenders seek to enforce or collect the
Senior Lender Claims or the Liens granted in any of the Senior Lender
Collateral.
3.2 Cooperation. The Trustee, on behalf of itself and the
Noteholders, and the Collateral Agent, agree that, unless and until the
Discharge of Senior Lender Claims has occurred, it will not commence, or join
with any Person (other than the Senior Lenders and the Agent upon the request
thereof) in commencing any enforcement, collection, execution, levy or
foreclosure action or proceeding with respect to any Lien held by it under any
of the Noteholder Documents (other than any Noteholder Property Lien) or
otherwise.
3.3 Notice by Agent. The Agent agrees to notify promptly
the Collateral Agent and the Trustee of a Discharge of Senior Lender Claims.
SECTION 4. PAYMENTS.
4.1 Application of Proceeds. As long as the Discharge of
Senior Lender Claims has not occurred, the cash proceeds of Collateral received
in connection with the sale of, or collection on, such Collateral upon the
exercise of remedies, shall be applied by the Agent to the Senior Lender Claims
in such order as specified in the Senior Credit Agreement until Discharge of
Senior Lender Claims has occurred. Upon Discharge of the Senior Lender Claims,
the Agent shall deliver to the Collateral Agent any proceeds of Collateral held
by it in the same form as received, with any necessary endorsements or as a
court of competent jurisdiction may otherwise direct or in the case of any such
proceeds in any such deposit account or securities account take such steps as
may be required under the Senior Lender Documents to cause such proceeds to be
transferred to the Collateral Agent, except as a court of competent jurisdiction
may otherwise direct.
4.2 Payments Over by Collateral Agent, the Trustee and
Noteholders. So long as the Discharge of Senior Lender Claims has not occurred,
any Collateral or proceeds thereof received by the Collateral Agent, the Trustee
or any Noteholder shall be segregated and held in trust and forthwith paid over
to the Agent for the benefit of the Senior Lenders in the same form as received,
with any necessary endorsements or as a court of competent jurisdiction may
otherwise direct. The Agent is hereby authorized to make any such endorsements
as agent for the Collateral Agent, the Trustee or any such Noteholder. This
authorization is coupled with an interest and is irrevocable. Notwithstanding
the foregoing, except for payments constituting proceeds of Collateral that are
(1) made in breach of any provision of any Senior Lender Document to purchase,
redeem, prepay or pay the principal of any Notes or to fund a legal or covenant
defeasance of the Notes under Article 8 of the Indenture, unless in connection
with any such payment the Collateral Agent and the Trustee received an Opinion
of Counsel (as defined in the Indenture), or a certificate of the Agent, that
application of such payment to principal of the Notes was permitted under the
Credit Agreement or (2) received by the Collateral Agent, the Trustee or any
Noteholder (A) as a result of any breach of the provisions of this Agreement,
(B) any time after commencement of any Insolvency or Liquidation Proceeding or
(C) at any time after the Trustee and the Collateral Agent have received written
notice from the Agent stating that (i) the Indebtedness constituting
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Senior Lender Claims has become immediately due and payable (whether at
maturity, by acceleration or otherwise, and all Letters of Credit are required
to be cash collateralized) or (ii) the Agent has become entitled to enforce any
or all Senior Lender Liens by reason of default by any Obligor under the Senior
Lender Documents, no payment of money made by any Obligor to the Collateral
Agent, the Trustee or any Noteholder will be subject to the foregoing provisions
of this Section 4.2.
SECTION 5. OTHER AGREEMENTS.
5.1 Releases.
(a) If in connection with:
(i) the exercise of the Agent's remedies in
respect of the Collateral including any sale, lease, exchange, transfer or other
disposition of such Collateral made by the Agent or any Senior Lender; or
(ii) any sale, lease, exchange, transfer or other
disposition of Collateral permitted under the terms of the Senior Credit
Agreement (whether or not an event of default under, and as defined therein, has
occurred and is continuing) and not prohibited under Section 4.16 of the
Indenture (Asset Sales);
the Agent, for itself or on behalf of any of the Senior Lenders, releases any of
its Liens on any part of the Collateral and, in the case of Section 5.1(a)(ii),
either (x) the commitment under the Senior Credit Agreement is reduced by the
net cash proceeds of such sale, lease, exchange, transfer or other disposition
(or to $0, if the net cash proceeds exceeds the then remaining commitment) and
such net cash proceeds shall have been applied to repay or collateralize any
Senior Lender Claims or letters of credit issued under the Senior Credit
Agreement to the extent of any principal balance (including undrawn letters of
credit) outstanding and in excess of such reduced commitment or (y) such net
cash proceeds shall have been reinvested in properties or assets that will
replace the Collateral sold or that will be used in the business of the
Obligors, the Liens, if any, of the Collateral Agent on such Collateral shall be
automatically, unconditionally and simultaneously released and the Collateral
Agent shall promptly shall execute and deliver to the Agent or the applicable
Obligor such termination statements, releases and other documents as the Agent
or the applicable Obligor may request to effectively confirm such release.
(b) Each of the Collateral Agent and Trustee hereby
irrevocably constitutes and appoints the Agent and any officer or agent of the
Agent, with full power of substitution, as its true and lawful attorney-in-fact
with full irrevocable power and authority in the place and stead of the
Collateral Agent or Trustee, as the, case may be, or such holder or in the
Agent's own name, from time to time in the Agent's discretion, for the purpose
of carrying out the terms of this Section 5.1, to take any and all appropriate
action and to execute any and all documents and instruments which may be
necessary or desirable to accomplish the purposes of this Section 5.1,
including, without limitation, any termination statements, endorsements or other
instruments or transfer or release.
5.2 Insurance. Unless and until the Discharge of Senior
Lender Claims has occurred, the Agent and the Senior Lenders shall have the sole
and exclusive right, subject to the rights of the Obligors under the Senior
Lender Documents, to adjust settlement for any insurance policy covering the
Collateral in the event of any loss thereof and to approve any award granted in
any condemnation or similar proceeding affecting the Collateral. Unless and
until the Discharge of Senior Lender Claims has occurred, all proceeds of any
such policy and any such award in respect of the Collateral shall be paid to the
Agent for the benefit of the Senior Lenders to the extent required under the
Senior Credit Agreement and thereafter to the Collateral Agent to the extent
required under the applicable Noteholder Documents
9
and then to the owner of the subject property or as a court of competent
jurisdiction may otherwise direct; provided, however, that from and after the
Commitment Termination Date, all such proceeds shall be paid to the Agent for
the benefit of the Senior Lenders until the Discharge of Senior Lender Claims
has occurred and thereafter to the Collateral Agent for the benefit of the
Noteholders to the extent required under the applicable Noteholder Documents and
then to the owner of the subject property or as a court of competent
jurisdiction may otherwise direct. If the Collateral Agent, the Trustee or any
Noteholder shall, at any time, receive any proceeds of any such insurance policy
or any such award in respect of the loss of any Collateral in contravention of
this Agreement, it shall pay such proceeds over to the Agent in accordance with
the terms of Section 4.2.
5.3 Amendments to Noteholder Collateral Documents.
(a) Without the prior written consent of the Agent and
the Required Lenders, no Noteholder Collateral Document may be amended,
supplemented or otherwise modified or entered into to the extent such amendment,
supplement or modification, or the terms of any new Noteholder Collateral
Document, would be inconsistent with any of the terms of this Agreement or could
reasonably be expected to have an adverse effect on the Agent or Senior Lenders.
The Trustee and the Collateral Agent agree that each Noteholder Collateral
Document creating a Noteholder Lien shall include the following language:
"Notwithstanding anything herein to the contrary, the lien and
security interest granted to the Collateral Agent/Trustee
pursuant to this Agreement and the exercise of any right or
remedy by the Collateral Agent/ 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, and BNY Midwest Trust Company, as
Collateral Agent, BNY Midwest Trust Company, as Trustee, and
the Obligors (as defined therein), including the grantor of
security interest in this Agreement, named therein. In the
event of any conflict between the terms of the Intercreditor
Agreement and this Agreement, the terms of the Intercreditor
Agreement shall govern."
(b) In the event the Agent or the Senior Lenders enter
into any amendment, waiver or consent in respect of any of the Senior Lender
Collateral Documents for the purpose of adding to, or deleting from, or waiving
or consenting to any departures from any provisions of, any Senior Lender
Collateral Document or changing in any manner the rights of the Agent, the
Senior Lenders, the Obligors thereunder, then such amendment, waiver or consent
shall apply automatically to any comparable provision of the Comparable
Noteholder Collateral Document without the consent of the Collateral Agent or
the Trustee and without any action by the Collateral Agent or Trustee, or any
Obligor; provided, however, that (A) no such amendment, waiver or consent shall
have the effect of removing assets subject to the Lien of the Noteholder
Collateral Documents, except to the extent that a release of such Lien is
permitted by Section 5.1, (B) notice of such amendment, waiver or consent shall
have been given to the Collateral Agent and Trustee, and (C) no such amendment,
waiver or consent that could reasonably be expected to be adverse to the
Collateral Agent, the Trustee or any Noteholder shall apply to such Comparable
Noteholder Collateral Document.
5.4 Rights As Unsecured Creditors.
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(a) Notwithstanding anything to the contrary in this
Agreement, the Collateral Agent and the Trustee may exercise rights and remedies
as an unsecured creditor against the Obligors in accordance with the terms of
the Noteholder Documents and applicable law. In the event the Collateral Agent,
the Trustee or any Noteholder becomes a judgment lien creditor in respect of
Collateral as a result of its enforcement of its rights as an unsecured
creditor, such judgment lien shall be subordinated to the Senior Lender Liens on
the same basis as the other Noteholder Liens are so subordinated to such Senior
Lender Liens under this Agreement and the provisions of this Agreement shall
apply to such judgment lien mutatis mutandi. Nothing in this Agreement modifies
any rights or remedies the Agent or the Senior Lenders may have with respect to
the Senior Lender Collateral.
(b) By executing this Agreement, the Collateral Agent and
the Trustee acknowledge, and by accepting a Note, each Noteholder acknowledges,
that the Senior Credit Agreement prohibits Telex from making a "Net Proceeds
Offer" or a "Change of Control Offer" (each as defined in the Indenture), making
any payment, or redeeming or purchasing any Notes, in connection therewith.
(c) Notwithstanding anything to the contrary in this
Agreement, the Agent and the Senior Lenders may exercise rights and remedies as
an unsecured creditor against the Obligors in accordance with the terms of the
Senior Lender Documents and applicable law.
5.5 Bailee for Perfection.
(a) The Agent agrees to hold the Pledged Collateral that
is part of the Collateral in its possession as bailee for the Collateral Agent
under Section 9-313(c)(2) of the Uniform Commercial Code solely for the purpose
of perfecting the security interest granted in such Pledged Collateral pursuant
to the Noteholder Security Agreement, subject to the terms and conditions of
this Section 5.5, it being understood that the Agent will have no duty to the
Collateral Agent, the Trustee or any Noteholder in connection with such
possession.
(b) Until the Discharge of Senior Lender Claims has
occurred, the Agent shall be entitled to deal with the Pledged Collateral in
accordance with the terms of the Senior Lender Documents as if the Lien of the
Collateral Agent under the Noteholder Security Agreement did not exist. The
rights of the Collateral Agent, the Noteholders and Trustee shall at all times
be subject to the terms of this Agreement.
(c) The Agent shall have no obligation whatsoever to the
Collateral Agent, the Trustee or any Noteholder to assure that the Pledged
Collateral is genuine or owned by any Obligor or to preserve rights or benefits
of any Person except as expressly set forth in this Section 5.5. The duties or
responsibilities of the Senior Agent under this Section 5.5 shall be limited
solely to holding the Pledged Collateral as bailee for the Collateral Agent for
purposes of perfecting the Lien held by the Collateral Agent.
(d) The Agent shall not have by reason of the Noteholder
Security Agreement or this Agreement or any other document a fiduciary
relationship in respect of the Collateral Agent, the Trustee or any Noteholder.
(e) Upon the Discharge of Senior Lender Claims, the Agent
shall deliver to the Collateral Agent the Pledged Collateral together with any
necessary endorsements, as otherwise required by the UCC or as a court of
competent jurisdiction may otherwise direct.
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SECTION 6. INSOLVENCY OR LIQUIDATION PROCEEDINGS.
6.1 Financing Issues. If any Obligor shall be subject to
any Insolvency or Liquidation Proceeding and the Agent shall desire to permit
the use of cash collateral or to permit such Obligor to obtain financing under
section 363 or section 364 of the Bankruptcy Code ("DIP Financing"), then the
Trustee, on behalf of itself and the Noteholders, and the Collateral Agent each
agrees that it will raise no objection to such DIP Financing, any conditions
thereto, or any other relief afforded to the Agent or Senior Lender in
connection therewith or to any priming of any Lien securing the DIP Financing to
the Noteholder Lien so long as (i) the principal amount of such DIP Financing,
together with the outstanding amount of principal under the Senior Credit
Agreement immediately prior to the initial funding under the DIP Financing (and
after giving effect to the application of proceeds of such initial funding) does
not exceed $17,000,000 and (ii) in the event that any Noteholder Lien is primed
by the DIP Financing (and all Obligations relating thereto), the Senior Lender
Lien is also primed. In the event that the Agent or Senior Lenders subordinate
the Senior Lender Lien in connection with any such DIP Financing (and all
Obligations relating thereto), the Trustee on behalf of itself and the
Noteholders and the Collateral Agent will subordinate the Noteholder Lien to
such DIP Financing (and all Obligations relating thereto).
6.2 Relief from the Automatic Stay. While any amounts are
outstanding under the Senior Lender Documents or any commitment under any DIP
Financing provided by any Senior Lender is in effect, the Trustee on behalf of
itself and the Noteholders, and the Collateral Agent, agree that none of them
shall seek relief from the automatic stay or any other stay in any Insolvency or
Liquidation Proceeding in respect of the Collateral, without the prior written
consent of the Agent and the Requisite Lenders.
6.3 Adequate Protection. In any Insolvency or Liquidation
Proceeding the Trustee, on behalf of itself and each Noteholder, and the
Collateral Agent, agree that none of them shall contest (or support any other
Person contesting) (a) any request by the Agent or the Senior Lenders for any
replacement lien, payment or other adequate protection or (b) any objection by
the Agent or the Senior Lenders to any motion, relief, action or proceeding
based on the Agent or the Senior Lenders claiming a lack of adequate protection.
In any Insolvency or Liquidation Proceeding, at no time shall the Trustee, the
Collateral Agent or any Noteholder file, make or prosecute any motion for
adequate protection (or any comparable request for relief) or otherwise seek
adequate protection in respect of any Noteholder Lien.
6.4 Voting Rights. In any Insolvency or Liquidation
Proceeding, neither the Trustee, the Collateral Agent nor any Noteholder shall
vote any Noteholder Claim for any plan of reorganization of any Obligor if such
plan does not provide for the payment in full in cash of all Senior Lender
Claims on the effective date of such plan of reorganization or otherwise
provides treatment of the Senior Lender Claims in a manner approved by the Agent
and Required Lenders.
6.5 Preference Issues. If any Senior Lender is required
in any Insolvency or Liquidation Proceeding or otherwise to turn over or
otherwise pay to the estate of any Obligor any amount (a "Recovery"), then the
Senior Lender Claims shall be reinstated to the extent of such Recovery and the
Senior Lenders shall be entitled to a Discharge of Senior Lender Claims with
respect to all such recovered amounts. If this Agreement shall have been
terminated prior to such Recovery, this Agreement shall be reinstated in full
force and effect, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the obligations of the parties hereto from
such date of reinstatement.
6.6 Reorganization Securities. If, in any Liquidation or
Insolvency Proceeding, debt obligations of the reorganized debtor secured by
Liens upon any property of the reorganized debtor are distributed, pursuant to a
plan of reorganization or similar dispositive restructuring plan, both on
account of Senior Lender Claims and on account of Noteholder Claims, then, to
the extent the debt obligations
12
distributed on account of the Senior Lender Claims and on account of the
Noteholder Claims are secured by Liens upon the same property, the provisions of
this Agreement will survive the distribution of such debt obligations pursuant
to such plan and will apply with like effect to the Liens securing such debt
obligations.
6.7 Expense Claims. Neither the Trustee, the Collateral
Agent nor any Noteholder will assert or enforce, at any time prior to the
Discharge of Senior Lender Claims, any claim under Section 506(c) of the
Bankruptcy Code senior to or on a parity with the Senior Lender Liens for costs
or expenses of preserving or disposing of any Collateral.
6.8 Asset Sales. Neither the Trustee, the Collateral
Agent nor any Noteholder shall object to or otherwise contest any sale of assets
by any Obligor, under Section 363 of the Bankruptcy Code, or the entry of any
order relating to any such sale, in each case, that is supported or consented to
by the Agent or the Required Lenders.
6.9 Post-Petition Claims. Neither the Trustee, the
Collateral Agent nor any Noteholder shall oppose or seek to challenge any claim
by the Agent or any Senior Lender for allowance in any Insolvency or Liquidation
Proceeding of Senior Lender Claims consisting of post-petition interest, fees or
expenses to the extent of the value of the Senior Lender Lien, without regard to
the existence of the Noteholder Lien.
6.10 Noteholder DIP Financing. Nothing contained in this
Agreement shall prevent any Noteholder from providing DIP Financing in any
Insolvency or Liquidation Proceeding, provided, however, that in the event that
any such DIP Financing is secured by a priming Lien under Section 364 of the
Bankruptcy Code, such priming Lien will (if it primes Senior Lender Liens) also
prime the Noteholder Priority Lien and Noteholder Lien.
SECTION 7. RELIANCE; WAIVERS; ETC.
7.1 Reliance. The consent by the Senior Lenders to the
execution and delivery of the Noteholder Documents and the grant to the
Collateral Agent on behalf of the Noteholders of a Lien on the Collateral and
all loans and other extensions of credit made or deemed made on and after the
date hereof by the Senior Lenders to Obligors (that are borrowers) shall be
deemed to have been given and made in reliance upon this Agreement.
7.2 No Warranties or Liability. The Trustee, on behalf of
itself and the Noteholders, and the Collateral Agent, acknowledge and agree that
each of the Agent and the Senior Lenders have made no express or implied
representation or warranty, including, without limitation, with respect to the
execution, validity, legality, completeness, collectibility or enforceability of
any of the Senior Lender Documents. The Senior Lenders will be entitled to
manage and supervise their respective loans and extensions of credit to the
Obligors (that are borrowers) in accordance with law and as they may otherwise,
in their sole discretion, deem appropriate, and the Senior Lenders may manage
their loans and extensions of credit without regard to any rights or interests
that the Trustee, the Collateral Agent or any of the Noteholders have in the
Collateral or otherwise, except as otherwise provided in this Agreement. Neither
the Agent nor any Senior Lender shall have any duty to the Trustee or any of the
Noteholders to act or refrain from acting in a manner which allows, or results
in, the occurrence or continuance of an event of default or default under any
agreements with any Obligor (including, without limitation, the Noteholder
Documents), regardless of any knowledge thereof which they may have or be
charged with.
7.3 No Waiver of Lien Priorities.
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(a) No right of the Senior Lenders, the Agent or any of
them to enforce any provision of this Agreement shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of any Obligor
or by any act or failure to act by any Senior Lender or the Agent, or by any
noncompliance by any Person with the terms, provisions and covenants of this
Agreement, any of the Senior Lender Documents or any of the Noteholder
Documents, regardless of any knowledge thereof which the Agent or the Senior
Lenders, or any of them, may have or be otherwise charged with.
(b) To the fullest extent permitted by law, the
Collateral Agent, the Noteholders and the Trustee agree not to assert or enforce
at any time prior to the Discharge of Senior Lender Claims:
(1) any right of subrogation to the
rights or interests of holders of Senior Lender Liens or Senior Lender Claims
(or any claim or defense based upon impairment of any such right of
subrogation); provided, however, that promptly following the Discharge of Senior
Lender Claims, the Agent and Senior Lenders shall execute and deliver to the
Trustee and the Collateral Agent appropriate documents (without recourse and
without representation or warranty) necessary to evidence any transfer by
subrogation to the Trustee and the Collateral Agent of an interest in the Senior
Lender Claims resulting from, among other things, any turnover by the Trustee,
the Collateral Agent and/or the Noteholders of proceeds of Collateral to the
Agent or Senior Lenders so long as the reasonable costs and expenses incurred by
the Agent and Senior Lenders in connection with the preparation and delivery of
such appropriate documents are paid by the Trustee, the Collateral Agent and/or
the Noteholders;
(2) any right of marshalling accorded
to a junior lienholder, as against a priority lienholder, under equitable
principles; and
(3) any statutory right of appraisal or
valuation accorded to a junior lienholder in a proceeding to foreclose a senior
lien,
that otherwise may be enforceable in respect of any Noteholder Lien or as
against any holder of Senior Lender Liens.
(c) Without in any way limiting the generality of the
foregoing, each holder of Senior Lender Claims or Senior Lender Liens may at any
time and from time to time, without the consent of or notice to the Trustee or
any holder of Noteholder Claims or Noteholder Liens without incurring any
responsibility or liability to any holder of Noteholder Claims or Noteholder
Liens and without in any manner prejudicing, affecting or impairing the ranking
agreements and other obligations set forth in this Agreement:
(1) make loans and advances to any
Obligor or issue, guaranty or obtain letters of credit for account of any
Obligor or otherwise extend credit to any Obligor, in any amount (subject to the
provisions of this Agreement relating to the maximum amount of principal of
Indebtedness constituting Senior Lender Claims) and on any terms, whether
pursuant to a commitment or as a discretionary advance and whether or not any
default or event of default or failure of condition is then continuing;
(2) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, compromise,
accelerate, extend or refinance, any Senior Lender Claims or any agreement,
guaranty, Lien or obligation of any Obligor or any other person or entity in any
manner related thereto, or otherwise amend, supplement or change in any manner
any Senior Lender Claims or Senior Lender Liens or any such agreement, guaranty,
lien or obligation;
14
(3) increase or reduce the amount of
any Senior Lender Claims (subject to the provisions of this Agreement relating
to the maximum amount of principal of Indebtedness constituting Senior Lender
Claims) or the interest, premium, fees or other amounts payable in respect
thereof;
(4) release or discharge any Senior
Lender Claims or any guaranty thereof or any agreement or obligation of any
Obligor or any other person or entity with respect thereto;
(5) take or fail to take any Senior
Lender Lien or any other collateral security for any Senior Lender Claims or
take or fail to take any action which may be necessary or appropriate to ensure
that any Senior Lender Lien or any other Lien upon any property is duly
enforceable or perfected or entitled to priority as against any other Lien or to
ensure that any proceeds of any property subject to any Lien are applied to the
payment of any Senior Lender Claim or any other obligation secured thereby;
(6) release, discharge or permit the
lapse of any or all Senior Lender Liens or any other Liens upon any property at
any time securing any Senior Lender Claims;
(7) exercise or enforce, in any manner,
order or sequence, or fail to exercise or enforce, any right or remedy against
any Obligor or any collateral security or any other person, entity or property
in respect of any Senior Lender Claims or any Senior Lender Lien or other Lien
securing any Senior Lender Claims or any right or power under this Agreement,
and apply any payment or proceeds of collateral in any order of application; or
(8) sell, exchange, release, foreclose
upon or otherwise deal with any property that may at any time be subject to any
Senior Lender Lien or any other Lien securing any Senior Lender Claims.
(d) To the maximum extent permitted by law, the Trustee,
on behalf of itself and each of the Noteholders, and the Collateral Agent, waive
any claim it may have against the Agent or any Senior Lender with respect to or
arising out of any action or failure to act or any error (whether constituting
negligence or gross negligence but excluding errors due to willful misconduct or
breach of this Agreement) on the part of the Agent or any Senior Lender or their
respective directors, officers, employees or agents with respect to any exercise
of rights or remedies in respect of the Senior Lender Liens or the Senior Lender
Claims or under the Senior Lender Documents or any transaction relating to the
Collateral. Neither the Agent nor any Senior Lender nor any of their respective
directors, officers, employees or agents will be liable for failure to demand,
collect or realize upon any of the Collateral or for any delay in doing so,
except to the extent arising out of the breach of this agreement by, or the
willful misconduct of, the Agent or any Senior Lender or any of their respective
directors, officers, employees or agents, and will be under no obligation to
sell or otherwise dispose of any Collateral upon the request of any Obligor or
upon the request of any holder of Noteholder Claims or Noteholder Liens or any
other Person or to take any other action whatsoever with regard to the
Collateral or any part thereof. The Trustee, on behalf of itself and the
Noteholders, and the Collateral Agent each agrees that the Senior Lenders and
the Agent have no duty to them in respect of the maintenance or preservation of
the Senior Lender Collateral, the Senior Lender Claims or otherwise.
(e) The Senior Lenders, on the one hand, and the
Noteholders, on the other hand, shall each be responsible for keeping themselves
informed of the financial condition of the Obligors and all other circumstances
bearing upon the risk of nonpayment of the Senior Lender Claims or Noteholder
Claims. The Senior Lenders and the Agent shall have no duty to advise the
Collateral Agent, the Trustee or any Noteholder of information regarding such
condition or circumstances or as to any other matter. If
15
any Senior Lender or the Agent, in its sole discretion, undertakes at any time
or from time to time to provide any such information, it shall have no duty to
supply any such information on any other occasion.
(f) None of the Agent or any Senior Lender will have any
duty, express or implied, fiduciary or otherwise, to Noteholder, the Collateral
Agent or to the Trustee except for the contractual obligations hereunder.
7.4 Obligations Unconditional. All rights, interests,
agreements and obligations of the Senior and the Senior Lenders and the
Collateral Agent, the Trustee and the Noteholders, respectively, hereunder shall
remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of any Senior
Lender Documents or any Noteholder Documents or any setting aside or avoidance
of any Senior Lender Lien or Noteholder Lien;
(b) any change in the time, manner or place of payment
of, or in any other terms of, all or any of the Senior Lender Claims or
Noteholder Claims, or any amendment or waiver or other modification, including,
without limitation, any increase in the amount thereof (to the extent not
prohibited by the Indenture as in effect on the date hereof), whether by course
of conduct or otherwise, of the terms of the Senior Credit Agreement or any
other Senior Lender Document or of the terms of the Indenture or any other
Noteholder Document;
(c) any exchange of any security interest in any
Collateral, or any other collateral, or any amendment, waiver or other
modification, whether in writing or by course of conduct or otherwise, of all or
any of the Senior Lender Claims or Noteholder Claims or any guarantee thereof;
(d) the commencement of any Insolvency or Liquidation
Proceeding in respect of any Obligor; or
(e) any other circumstances which otherwise might
constitute a defense available to, or a discharge of, any Obligor in respect of
the Senior Lender Claims, or of the Trustee, the Collateral Agent, any
Noteholder, the Agent or any Senior Lender in respect of this Agreement.
SECTION 8. MISCELLANEOUS.
8.1 Conflicts. In the event of any conflict between the
provisions of this Agreement and the provisions of the Senior Lender Documents
or the Noteholder Documents, the provisions of this Agreement shall govern.
8.2 Continuing Nature of this Agreement. This Agreement
shall continue to be effective until the Discharge of Senior Lender Claims shall
have occurred. This is a continuing agreement of lien subordination and the
Senior Lenders may continue, at any time and without notice to the Trustee or
any Noteholder, to extend credit and other financial accommodations and lend
monies to or for the benefit of the Borrower constituting Senior Lender Claims
on the faith hereof. The Trustee, on behalf of itself and the Noteholders, and
the Collateral Agent, hereby waive any right any of them may have under
applicable law to revoke this Agreement or any of the provisions of this
Agreement. The terms of this Agreement shall survive, and shall continue in full
force and effect, in any Insolvency or Liquidation Proceeding.
8.3 Amendments; Waivers. No amendment, modification or
waiver of any of the provisions of this Agreement by the Trustee, the Collateral
Agent or the Agent shall be deemed to be made unless the same shall be in
writing signed on behalf of the party to be charged or its authorized
16
agent and each waiver, if any, shall be a waiver only with respect to the
specific instance involved and shall in no way impair the rights of the parties
making such waiver or the obligations of the other parties to such party in any
other respect or at any other time. No Obligor shall have any right to amend,
modify or waive any provision of this Agreement without the consent of the
Trustee, the Collateral Agent and the Agent, nor shall any consent or signed
writing be required of any of them to effect any amendment, modification or
waiver of any provision of this Agreement, except that no amendment,
modification or waiver affecting any obligation of any Obligor hereunder shall
be made without the consent of such Obligor. No consent of any Obligor, the
Trustee or Collateral Agent shall be required to add an Obligor to this
Agreement.
8.4 Representations.
(a) Each of the Trustee and the Collateral Agent
represents and warrants to the Agent and the Senior Lenders that it has all
requisite corporate power and authority to enter into this Agreement, is
authorized to do so, has duly executed and delivered this Agreement by a duly
authorized officer and its execution and deliver of this Agreement binds the
Trustee and the Collateral Agent, respectively, and each present and future
Noteholder.
(b) The Agent represents and warrants to the Trustee and
the Noteholders that it has all requisite corporate power and authority to enter
into this Agreement, is authorized to do so under the Senior Credit Agreement,
has duly executed and delivered this Agreement by a duly authorized signatory
and its execution and deliver of this Agreement binds the Agent, and each
present and future Senior Lender.
8.5 Successor Collateral Agent and Trustee.
(a) Each successor Collateral Agent and Trustee under the
Indenture shall execute and deliver a counterpart of and become a party to this
Agreement, and no replacement or resignation of the Collateral Agent or Trustee
shall be effective until the successor Collateral Agent or Trustee, as the case
may be, shall have executed and delivered a counterpart of this Agreement.
(b) Each successor Agent under the Senior Credit
Agreement shall execute and deliver a counterpart of and become a party to this
Agreement, and no replacement or resignation of the Agent shall be effective
until the successor Agent shall have executed and delivered a counterpart of
this Agreement.
8.6 Application of Payments. All payments received by the
Senior Lenders may be applied, reversed and reapplied, in whole or in part, to
such part of the Senior Lender Claims as the Senior Lenders, in their sole
discretion, deem appropriate. The Trustee, on behalf of itself and the
Noteholders, and the Collateral Agent, consent to any extension or postponement
of the time of payment of the Senior Lender Claims or any part thereof and to
any other indulgence with respect thereto, to any substitution, exchange or
release of any security which may at any time secure any part of the Senior
Lender Claims and to the addition or release of any other Person primarily or
secondarily liable therefor.
8.7 Consent to Jurisdiction; Waivers. The parties hereto
consent to the jurisdiction of any state or federal court located in Borough of
Manhattan, City of New York, New York, and consent that all service of process
may be made by registered mail directed to such party as provided in Section 8.8
below for such party. Service so made shall be deemed to be completed three (3)
days after the same shall be posted as aforesaid. The parties hereto waive any
objection to any action instituted hereunder based on forum non conveniens, and
any objection to the venue of any action instituted hereunder. EACH OF THE
PARTIES HERETO WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED
17
ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER
SENIOR LENDER DOCUMENT OR NOTEHOLDER DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, VERBAL OR WRITTEN STATEMENT OR ACTION OF ANY PARTY HERETO.
8.8 Notices. All notices to the Collateral Agent, the
Trustee, the Noteholders, the Agent and the Senior Lenders permitted or required
under this Agreement may be sent to the Collateral Agent (for itself), the
Trustee (for itself and the Noteholder), or the Agent (for itself and the Senior
Lenders), respectively. Unless otherwise specifically provided herein, any
notice or other communication herein required or permitted to be given shall be
in writing and may be personally served, telecopied, electronically mailed or
sent by courier service or U.S. registered or certified mail and shall be deemed
to have been given when delivered in person or by courier service, upon receipt
of a telecopy or electronic mail or four Business Days after deposit in the U.S.
mail (registered or certified, with postage prepaid and properly addressed). For
the purposes hereof, the addresses of the parties hereto shall be as set forth
below each party's name on the signature pages hereto, or, as to each party, at
such other address as may be designated by such party in a written notice to all
of the other parties.
8.9 Further Assurances.
(a) The Trustee, on behalf of itself and the Noteholders,
and the Collateral Agent, agree that each of them shall take such further action
and shall execute and deliver to the Agent and the Senior Lenders such
additional documents and instruments (in recordable form, if requested) as the
Agent or the Senior Lenders may reasonably request to effectuate the terms of
and the lien priorities contemplated by this Agreement.
(b) The Agent, on behalf of itself and the Senior
Lenders, agrees that it shall take such further action and shall execute and
deliver to the Collateral Agent and the Trustee such additional documents and
instruments (in recordable form, if requested) as the Collateral Agent or the
Trustee may reasonably request to effectuate the terms of and the lien
priorities contemplated by this Agreement.
8.10 Governing Law. This Agreement has been delivered and
accepted at and shall be deemed to have been made at New York, New York and
shall be interpreted, and the rights and liabilities of the parties bound hereby
determined, in accordance with the laws of the State of New York.
8.11 Binding on Successors and Assigns No Third Party
Beneficiaries. This Agreement shall be binding upon and inure to the benefit of
the Agent, the Senior Lenders, the Collateral Agent, Trustee, the Noteholders
and their respective successors and assigns. No other Person, shall have or be
entitled to assert rights or benefits hereunder. This Agreement shall be binding
upon the Obligors and their successors and assigns, provided, however, that no
Obligor or any successor or assign thereof shall be entitled to enforce any
provision of this Agreement.
8.12 Specific Performance. The Agent may demand specific
performance of this Agreement. The Trustee, on behalf of itself and the
Noteholders and the Collateral Agent, hereby irrevocably waive any defense based
on the adequacy of a remedy at law and any other defense which might be asserted
to bar the remedy of specific performance in any action which may be brought by
the Agent.
8.13 Section Titles; Time Periods. The section titles
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of this Agreement. In the
computation of time periods, unless otherwise specified, the word "from" means
"from and including" and each of the words "to" and "until" means "to but
excluding" and the word "through" means "to and including".
18
8.14 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be an original and all of which shall
together constitute one and the same document.
8.15 Authorization. By its signature, each Person
executing this Agreement on behalf of a party hereto represents and warrants to
the other parties hereto that it is duly authorized to execute this Agreement.
8.16 Credit Agreement. On behalf of itself and the
Noteholders, the Trustee agrees and acknowledges that the Senior Credit
Agreement is the "Credit Agreement" as such term is defined in the Indenture.
8.17 Effectiveness. This Agreement shall become effective
when executed and delivered by the parties listed below. This Agreement shall be
effective both before and after the commencement of any Insolvency or
Liquidation Proceeding. All references to any Obligor shall include any Obligor
as debtor and debtor-in-possession and any receiver or trustee for such Obligor
(as the case may be) in any Insolvency or Liquidation Proceeding.
19
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
Agent:
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent
By: ____________________________________
Name:
Title:
Address:
GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Telex Communications, Inc. -
Account Officer
Fax: (000) 000-0000
With a copy to:
GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Counsel
Corporate Financial Services -
Global Sponsor Finance
Fax: (000) 000-0000
And
GENERAL ELECTRIC CAPITAL CORPORATION
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Counsel
Corporate Financial Services -
Global Sponsor Finance
Fax: (000) 000-0000
SIGNATURE PAGE TO TELEX COMMUNICATIONS, INC. INTERCREDITOR AGREEMENT
Collateral Agent:
BNY MIDWEST TRUST COMPANY, as Collateral
Agent
By: ________________________________________
Name:
Title:
Address:
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Trustee:
BNY MIDWEST TRUST COMPANY, as Trustee
By: ________________________________________
Name:
Title:
Address:
0 Xxxxx XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Credit Parties:
TELEX COMMUNICATIONS, INC.
By: ________________________________________
Name:
Title:
TELEX COMMUNICATIONS HOLDINGS, INC.
By: ________________________________________
Name:
Title:
TELEX COMMUNICATIONS INTERMEDIATE
SIGNATURE PAGE TO TELEX COMMUNICATIONS, INC. INTERCREDITOR AGREEMENT
HOLDINGS, LLC
By: ________________________________________
Name:
Title:
TELEX COMMUNICATIONS INTERNATIONAL, LTD.
By: ________________________________________
Name:
Title:
Address for all Credit Parties:
00000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile: (000) 000-0000
With a copy to:
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Fax: (000) 000-0000
SIGNATURE PAGE TO TELEX COMMUNICATIONS, INC. INTERCREDITOR AGREEMENT
