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Exhibit 4.2
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 Pledge Agreement (as such terms
are defined below), and TELEX
COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC,
a Delaware limited liability company
("Telex").
W I T N E S S E T H :
WHEREAS, the Obligors (as hereinafter defined), 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 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 13%
Senior Subordinated Discount Notes
Series A due 2009 in the original aggregate
principal amount of $129,115,891 (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 has entered into the Noteholder Pledge
Agreement, which Noteholder Pledge
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 Telex 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:
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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 Telex or any of
the other 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 Telex.
"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.
"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 Telex
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 Telex
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
Pledge Agreement 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 Telex 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 Pledge Agreement" shall mean the Pledge Agreement,
dated as of November 19, 2003, between
Telex 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.
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"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).
"Obligors" shall mean the "Credit Parties" (under the Senior
Credit Agreement) and shall include,
without limitation, Telex.
"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).
"Senior Lender Collateral" shall mean all of the assets of
Telex or any of the other 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
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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 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
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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 Telex shall not
grant any Lien on any of its assets, in
favor of the Collateral Agent, the
Trustee or the Noteholders other than those
granted under the Noteholder Pledge
Agreement as of the date hereof.
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 Telex,
(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;
(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;
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(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
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
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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 mak
