Intercreditor Agreement among General Electric Capital Corporation, BNY Midwest Trust Company, and Telex Communications Intermediate Holdings, LLC (2003)
Summary
This agreement, dated November 19, 2003, is between General Electric Capital Corporation (as Agent), BNY Midwest Trust Company (as Trustee and Collateral Agent), and Telex Communications Intermediate Holdings, LLC. It sets out the rights and priorities of the parties regarding collateral and repayment in connection with Telex’s credit and note agreements. The agreement ensures that the parties coordinate their claims and actions, especially in the event of default or bankruptcy, and establishes the order in which debts will be repaid from collateral.
EX-4.2 7 c81155s4exv4w2.txt INTERCREDITOR AGREEMENT 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: 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 2 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. 3 "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 4 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 5 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; 6 (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 7 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 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 Telex to the Collateral Agent, the Trustee or any Noteholder will be subject to the foregoing provisions of this Section 4.2. 8 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 4.6 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 Telex such termination statements, releases and other documents as the Agent or Telex 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 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, 9 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 Telex Communications Intermediate Holdings, LLC. 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 Telex; 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. (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 Telex 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 10 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 (i) prohibits Telex from making any offer to purchase or redeem or purchasing or redeeming any Notes in connection with an "Asset Disposition" or a "Change of Control" (each as defined in the Indenture) and from making any payment in connection therewith, and (ii) restricts the ability of Telex Communications, Inc. to pay dividends to Telex for the purposes of making interest payments on the Notes and prohibits Telex Communications, Inc. from paying dividends to Telex for the purpose of making principal payments on the Notes. (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 Pledge 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 Pledge 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 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 Pledge 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. SECTION 6. INSOLVENCY OR LIQUIDATION PROCEEDINGS. 6.1 Financing Issues. If Telex shall be subject to any Insolvency or Liquidation Proceeding and the Agent shall desire to permit the use of cash collateral or to permit Telex to obtain 11 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 Telex 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 Telex 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 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. 12 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 Telex 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. (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 13 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; (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; 14 (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 Telex 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 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. 15 (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 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. Telex shall have no right to amend, modify or 16 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 Telex hereunder shall be made without the consent of Telex. No consent of Telex, 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 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. 17 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 Telex and its successors and assigns, provided, however, that neither Telex nor 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". 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. 18 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 "Senior 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 Telex or any other Obligor shall include Telex and such other 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 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 335 Madison Avenue, 12th Floor New York, New York 10017 Attention: Telex Communications, Inc. - Account Officer Fax: (212) 370-8088 With a copy to: GENERAL ELECTRIC CAPTIAL CORPORATION 201 High Ridge Road Stamford, Connecticut ###-###-#### Attention: Corporate Counsel Corporate Financial Services - Global Sponsor Finance Fax: (203) 316-7899 And GENERAL ELECTRIC CAPITAL CORPORATION 500 West Monroe Street Chicago, Illinois 60661 Attention: Corporate Counsel Corporate Financial Services - Global Sponsor Finance Fax: (312) 441-6876 SIGNATURE PAGE TO TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC INTERCREDITOR AGREEMENT Collateral Agent: BNY MIDWEST TRUST COMPANY, as Collateral Agent By: ________________________________________________ Name: Title: Address: 2 North LaSalle Street, Suite 1020 Chicago, Illinois 60602 Attention: Daniel G. Donovan Fax: (312) 827-8542 Trustee: BNY MIDWEST TRUST COMPANY, as Trustee By: ________________________________________________ Name: Title: Address: 2 North LaSalle Street, Suite 1020 Chicago, Illinois 60602 Attention: Daniel G. Donovan Fax: (312) 827-8542 Telex: TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC By: ________________________________________________ Name: Title: Address: 12000 Portland Avenue South Burnsville, Minnesota 55337 Attention: Chief Financial Officer Fax: (952) 886-3712 With a copy to: Stoock & Stroock & Lavan LLP SIGNATURE PAGE TO TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC INTERCREDITOR AGREEMENT 180 Maiden Lane New York, New York 10038-4982 Attention: Melvyn Epstein, Esq. Fax: (212) 806-6006 SIGNATURE PAGE TO TELEX COMMUNICATIONS INTERMEDIATE HOLDINGS, LLC INTERCREDITOR AGREEMENT
