Exhibit 4.3(n)
WAIVER, AMENDMENT NO. 5, AGREEMENT, AND CONSENT
WAIVER, AMENDMENT NO. 5, AGREEMENT, AND CONSENT, dated as of November
21, 2001 (this "Amendment"), to the Credit Agreement, dated as of May 6,
1997, as amended by Amendment No. 1, dated as of January 30, 1998, as
amended by Amendment No. 2, dated as of December 23, 1998, as amended by
Amendment No. 3, dated as of October 29, 1999 and as amended by Amendment
▇▇. ▇, ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇, ▇▇▇▇ (▇▇▇ as further amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among TELEX
COMMUNICATIONS, INC., a Delaware corporation ("Telex" or the "Borrower"),
the several banks and other financial institutions from time to time
parties thereto (the "Lenders"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC., as
documentation agent for the Lenders (in such capacity, the "Documentation
Agent") and JPMORGAN CHASE BANK (f/k/a THE CHASE MANHATTAN BANK), a New
York banking corporation, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are
parties to the Credit Agreement, pursuant to which the Lenders have made
extensions of credit to, or for the benefit of, the Borrower;
WHEREAS, Events of Default have occurred and are continuing under (i)
subsection 9(c) of the Credit Agreement as a result of the Borrower's
failure to meet the financial conditions and covenants contained in
subsection 8.1 of the Credit Agreement, (ii) subsection 9(e) of the Credit
Agreement as a result of the Borrower's failure to pay interest on the EVI
Senior Subordinated Notes on September 17, 2001, the Borrower's failure to
pay interest on the Senior Subordinated Notes in November 2001 and the
Borrower's failure to meet the financial conditions and covenants contained
in Section 8.1 of the Junior Credit Agreement, and (iii) subsection 9(m) of
the Credit Agreement as a result of the Borrower's failure to meet the
financial conditions and covenants contained in Section 8.1 of the Junior
Credit Agreement;
WHEREAS, the Borrower has made an exchange offer to the holders of
the EVI Senior Subordinated Notes and the holders of the Senior
Subordinated Notes pursuant to which the holders of such Notes will
exchange the Notes for new senior subordinated notes to be issued by, and
Preferred Stock (convertible into common stock at the option of the
Borrower) and warrants to purchase Preferred Stock of, Telex (the "Telex
Exchange");
WHEREAS, the Borrower wishes to amend the terms of the New
Indebtedness to permit up to an additional $10,000,000 of principal to be
borrowed under the documents governing the New Indebtedness;
1
WHEREAS, in connection with such Events of Default and the Telex
Exchange the Borrower has requested that the Lenders agree to waive such
Events of Default and further agree to amend and modify the Credit
Agreement in certain respects; and
WHEREAS, the Administrative Agent and the Lenders are willing to
agree to the requested waivers, amendments and modifications but only on
the terms and subject to the conditions set forth herein;
NOW THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt of which is hereby acknowledged,
the Borrower, the Lenders and the Administrative Agent hereby agree as
follows:
SECTION 1. DEFINITIONS.
1.1 Capitalized Terms. Capitalized terms used herein and not
otherwise defined shall have their respective meanings set forth in the
Credit Agreement and the following terms shall have the following meanings:
"Amendment No. 5 Effective Date": as defined in Section 6.1 of this
Amendment.
SECTION 2. AMENDMENTS.
2.1 Amendments to Subsection 1.1. Subsection 1.1 of the Credit
Agreement is hereby amended by deleting therefrom the definitions of
"Applicable Margin," "Asset Sale," "Borrower," "Commonly Controlled
Entity," "Consolidated Fixed Charge Ratio," "Consolidated EBITDA,"
"Consolidated Interest Expense," "Consolidated Fixed Charges," "Change of
Control," "Intercreditor Agreement," "Loan Documents," "New Indebtedness,"
"Projections," "Tax Sharing Agreement," "Termination Date," "Tranche A
Maturity Date," "Tranche B Maturity Date" and "Transaction Documents" in
their entireties and inserting the following new definitions in appropriate
alphabetical order:
"Amendment No. 5": the Waiver, Amendment ▇▇. ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
and Consent dated as of November 21, 2001 to this Agreement.
"Amendment No. 5 Effective Date": as defined in Amendment No. 5.
"Applicable Margin": (i) 5.00% per annum with respect to the Loans
that are Eurodollar Loans and (ii) 4.00% per annum with respect to the
Loans that are ABR Loans.
"Asset Sale": any sale, issuance, conveyance, transfer, lease or
other disposition (including without limitation, through a Sale and
Leaseback Transaction) (a "Disposition") by the Borrower or any of its
Subsidiaries, in one or a series of related transactions, of any real or
personal, tangible or intangible, property (including, without limitation,
Capital Stock) of the Borrower or such Subsidiary to any Person (other than
to any of its domestic Wholly Owned Subsidiaries a party to a Guarantee and
Collateral Agreement), provided, that a Disposition to a joint venture or
similar arrangement otherwise permitted under clause (k) of Section 8.9
hereof shall not constitute an Asset Sale.
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"Change of Control": the occurrence of any of the following events:
(i) any Person or group (with the meaning of the Securities Exchange Act of
1934 and the rules of the Securities and Exchange Commission thereunder as
in effect on the date hereof) other than the Permitted Holders shall in the
aggregate beneficially, directly or indirectly, own shares of Capital Stock
having more than 35% of the total voting power of all of the outstanding
Capital Stock of the Borrower, or (ii) a "Change of Control" as defined in
the New Telex Senior Subordinated Indenture or the notes or documents with
respect to the New Indebtedness shall have occurred at a time when any
principal amount of Indebtedness is outstanding under the New Telex Senior
Subordinated Indenture or the New Indebtedness, as the case may be.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Sections 414(m) and (o) of the
Code.
"Consolidated EBITDA": for any period, Consolidated Net Income for
such period adjusted to exclude the following items (without duplication)
of income or expense to the extent that such items are included in the
calculation of Consolidated Net Income: (a) Consolidated Interest Expense,
(b) any non-cash expenses and charges, (c) total income tax expense, (d)
depreciation expense, (e) the expense associated with amortization of
intangible and other assets (including amortization or other expense
recognition of any costs associated with asset write-ups in accordance with
APB Nos. 16 and 17) and the non-cash expense associated with write-offs of
impaired intangibles, (f) non-cash provisions for reserves for discontinued
operations, (g) any gain or loss associated with the sale or write-down of
assets not in the ordinary course of business, (h) any income or loss
accounted for by the equity method of accounting (except in the case of
income to the extent of the amount of cash dividends or cash distributions
paid to the Borrower or any of its Subsidiaries by the entity accounted for
by the equity method of accounting), (i) accruals for any fees earned by
GSCP in respect of management consulting or financial advisory services as
contemplated by Section 8.10(ii) hereof but not paid in cash as provided in
Section 3.2 of Amendment No. 4, (j) for any period that is part of fiscal
year 2001, and to the extent incurred prior to the Amendment No. 5
Effective Date, all nonrecurring restructuring or other charges and
transaction fees relating to the Telex/EVI Mergers, including any such
nonrecurring charges which may reasonably be classified as restructuring
charges but are not classified as restructuring charges under GAAP;
provided that the aggregate amount of all such charges and fees paid in
cash shall not exceed $3,100,000 in the aggregate; (k) non-cash charges, of
up to $161,000 in each fiscal year, relating to that certain operating
lease of the Borrower for its corporate headquarters in Burnsville,
Minnesota; (l) expenses incurred and paid by the Borrower prior to the
Amendment No. 5 Effective Date in connection with the negotiation and
consummation of Amendment No. 4, the placement and consummation of the New
Indebtedness and the amendment and modification of the Senior Subordinated
Notes Documents and the EVI Senior Subordinated Notes Documents to permit
the issuance of the New Indebtedness; provided that the aggregate amount of
all such expenses shall not exceed $1,500,000, unless otherwise agreed by
the Administrative Agent; (m) expenses incurred by the Borrower in
connection with the negotiation and consummation of Amendment No. 5, the
placement of the additional New Indebtedness and the related amendment to
the terms of the New Indebtedness, the negotiation and the consummation of
the Telex Exchange, and the
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issuance of the New Telex Subordinated Notes; provided that placement fees
for the additional New Indebtedness shall not exceed $600,000 and provided
further, that the aggregate amount of all such expenses (including
placement fees for the additional New Indebtedness) shall not exceed
$7,000,000, unless otherwise agreed by the Administrative Agent; (n) except
for purposes of calculating "Excess Cash Flow," cash payments not to exceed
an aggregate amount of $100,000 to be paid prior to the Amendment No. 5
Effective Date made to the Borrower's management employees in respect of
bonuses (to the extent not prohibited pursuant to subsection 8.18 hereof)
in accordance with the terms of such employees' employment agreements; (o)
for the fiscal year ended December 31, 2001 non-cash write-offs for
impaired inventory and bad debts in an amount not to exceed $9,000,000; and
(p) non-cash extraordinary gains or losses attributable to the Telex
Exchange."
"Consolidated Fixed Charges": at any time the sum of (without
duplication) (i) the aggregate amount of Consolidated Interest Expense for
the previous twelve months plus (ii) scheduled principal amortization of
Term Loans for the next twelve months (whether or not such payments are
made) other than the Tranche A/B Additional Payment - 2002, the Tranche A/B
Additional Payment - 2003 and any outstanding balance of the Tranche A Term
Loans and Tranche B Term Loans due on the Tranche A Maturity Date and the
Tranche B Maturity Date, respectively, plus (iii) the aggregate amount of
all regularly-scheduled payments of principal of any other Indebtedness
(including, without limitation, the principal component of any obligations
under Financing Leases) to be made during the next twelve months other than
the final payment of principal due on the maturity date of such
Indebtedness plus (iv) the aggregate amount paid, in cash in respect of
income taxes during the previous twelve months (net of tax credits and
benefits, including tax benefits from net operating losses), plus (v) the
aggregate amount of all Capital Expenditures permitted to be made during
the next twelve months (excluding amounts of Capital Expenditure permitted
to be carried over from a previous period); in each case of the Borrower
and its consolidated Subsidiaries determined on a consolidated basis in
accordance with GAAP.
"Consolidated Interest Expense": for any period, the sum of (a)
interest expense (accrued and paid or payable in cash for such period, and
in any event excluding any amortization or write-off of financing costs) on
Indebtedness of the Borrower and its consolidated Subsidiaries for such
period, minus (b) interest paid in cash during such period in respect of
the Indebtedness evidenced by the Senior Subordinated Notes and the EVI
Senior Subordinated Notes minus (c) interest income (accrued and received
or receivable in cash for such period) of the Borrower and its consolidated
Subsidiaries for such period, in each case determined on a consolidated
basis in accordance with GAAP.
"Fixed Charge EBITDA": for any period, Consolidated EBITDA for that
period less, to the extent included in Consolidated EBITDA for such period,
the items and amounts specified in paragraphs (j), (l), and (n) of the
definition of Consolidated EBITDA.
"Fixed Charge Ratio": at any date of determination thereof, the ratio
of (a) Fixed Charge EBITDA for the period of one year ending on such date
of determination to (b) Consolidated Fixed Charges at that time.
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"Hearing Aid Disposition": the Disposition by the Borrower and its
Affiliates, in one or more transactions of all or part of its hearing aid
business (including any real estate associated therewith).
"Intercreditor Agreement": the Intercreditor Agreement dated as of
April 11, 2001 among The Chase Manhattan Bank, as Administrative Agent on
behalf of the Lenders, the New Lenders and the Borrower as amended by the
Intercreditor Amendment, as the same may be amended, supplemented or
modified from time to time.
"Intercreditor Amendment": the Intercreditor Amendment Agreement
dated as of November 21, 2001 among the parties to the Intercreditor
Agreement.
"Junior Credit Agreement": has the meaning set forth in the
Intercreditor Agreement.
"Loan Documents": this Agreement (including each of the written
agreements embodying the amendments, supplements and other modifications
hereto), the Telex Assumption Agreement, any Notes, the Applications, the
Guarantees, the Security Documents and the Intercreditor Agreement, each as
amended, supplemented, waived or otherwise modified from time to time.
"Mortgage Amendments": the collective reference to the amendments
amending each of the existing Mortgages in form and substance satisfactory
to the Administrative Agent and its counsel.
"New Indebtedness": Indebtedness of the Borrower incurred pursuant to
the Junior Credit Agreement (a) in a funded principal amount of not more
than $30,000,000 in aggregate principal amount at any one time outstanding
(exclusive of capitalized interest, accrued interest or interest paid in
kind), (b) maturing no earlier than July 31, 2004, (c) not requiring
interest to be paid in cash prior to July 31, 2004, other than if permitted
by subsection 8.12(e) but which interest may accrue and be compounded or
paid in kind, (d) the lender of which is not Holdings or any Subsidiary of
the Borrower, (e) having terms and conditions not more restrictive than
those applicable to the Loans and otherwise reasonably satisfactory to the
Administrative Agent, including, without limitation, with respect to the
cash payment of fees, (f) which is subordinate in right of payment to the
Obligations (as defined in the Guarantee and Collateral Agreement) in
accordance with the terms and conditions of the Intercreditor Agreement and
(g) which may be secured by Liens on the Collateral junior to the Liens
securing the Obligations (as defined in the Guarantee and Collateral
Agreement) pursuant to the terms and conditions of the Intercreditor
Agreement.
"New Telex Senior Subordinated Indenture": the Indenture, dated as of
November 21, 2001 between Telex and BNY Midwest Trust Company, pursuant to
which Telex may issue subordinated discount notes in an aggregate issue
price not to exceed $56,250,000, as the same may be amended, supplemented
or otherwise modified in accordance with the terms of this Agreement.
"New Telex Subordinated Note Documents": the collective reference to
the New Telex Subordinated Notes and the New Telex Senior Subordinated
Indenture and each of the other instruments and documents executed and
delivered pursuant to any of the foregoing, together
5
with any indentures, instruments and documents pursuant to which any
registered securities substantially identical to the notes issued under the
New Telex Senior Subordinated Indenture are issued pursuant to the
registration obligations of the Borrower under the Telex Exchange, as the
same may be amended, supplemented, waived or otherwise modified from time
to time in accordance with subsection 8.12 to the extent applicable;
individually an "New Telex Senior Subordinated Note Document".
"New Telex Subordinated Notes": the notes issued pursuant to the
Telex Exchange under the New Telex Senior Subordinated Indenture and any
registered securities substantially identical to the notes issued under the
New Telex Senior Subordinated Indenture, issued pursuant to the
registration obligations of the Borrower under the Telex Exchange.
"Permitted Holders": collectively, (i) the GSCP Group; (ii) Wayland
Investment Fund, LLC, Wayland Investment Fund II, LLC and their respective
Affiliates; (iii) ▇▇▇▇▇▇▇▇▇ and Company, Inc., Jefferies Opportunity Fund,
LLC, Jefferies Opportunity Fund II, LLC, Jefferies Employees Opportunity
Fund, LLC and their respective Affiliates; and (iv) Massachusetts Mutual
Life Insurance Company, MassMutual High Yield Partners II LLC, SAAR
Holdings CDO Limited, ▇▇▇▇▇▇ CDO Limited, Wilbraham CBO Limited, Suffield
CLO Limited, MassMutual Corporate Investor, MassMutual Global CBO I Limited
and their respective Affiliates.
"Preferred Stock": preferred stock of the Borrower the terms of which
have been approved by the Administrative Agent and the Lenders, prior to
the Amendment No. 5 Effective Date.
"Telex Exchange": has the meaning set forth in the recitals to
Amendment No. 5.
"Termination Date": April 30, 2004.
"Tranche A/B Additional Payment - 2002": an amount equal to the
amount by which 25% of Consolidated EBITDA for the fiscal year ended
December 31, 2002 exceeds $8,000,000 (to a maximum amount of $2,000,000)
plus an amount equal to 75% of the amount by which Consolidated EBITDA for
the fiscal year ended December 31, 2002 exceeds $40,000,000.
"Tranche A/B Additional Payment - 2003": an amount equal to 75% of
the amount by which Consolidated EBITDA for the fiscal year ended December
31, 2003 exceeds $40,000,000.
"Tranche A Maturity Date": April 30, 2004.
"Tranche B Maturity Date": April 30, 2004.
"Transaction Document": the collective reference to the
Recapitalization Documents, the Tender Offer Documents, the Senior
Subordinated Note Documents, the New Telex Subordinated Note Documents and
all documents relating to the New Indebtedness.
2.2 Amendment to Subsection 2.7. Subsection 2.7 of the Credit
Agreement is hereby amended by deleting that paragraph (b) of said
subsection and substituting in lieu thereof the following:
6
"(b) On Amendment No. 5 Effective Date the outstanding
principal balance of the Tranche A Term Loans is $18,084,191.00 and of the
Tranche B Term Loans is $59,858,176.25. The Tranche A Term Loans and the
Tranche B Term Loans shall be payable in installments, commencing on
February 28, 2002 on the dates and in the aggregate principal amount set
forth below (together with all accrued interest thereon) opposite the
applicable installment date (or, if less, the aggregate amount of the
Tranche A Term Loans and the Tranche B Term Loans then outstanding). Each
such installment shall be applied pro rata (based on outstanding principal
amount) to the Tranche A Term Loans and the Tranche B Term Loans:
February 28, 2002 $2,000,000
May 31, 2002 $2,000,000
August 31, 2002 $2,000,000
November 30, 2002 $2,000,000
February 28, 2003 $2,500,000
April 1, 2003 The Tranche A/B Additional Payment - 2002
May 31, 2003 $2,500,000
August 31, 2003 $2,500,000
November 30, 2003 $2,500,000
February 29, 2004 $2,500,000
April 1, 2004 The Tranche A/B Additional Payment - 2003
April 30, 2004 Outstanding Balance
2.3 Amendment to Subsection 2.8. Subsection 2.8 of the Credit
Agreement is hereby amended by deleting paragraph (b) of said subsection
and substituting in lieu thereof the following:
"[Reserved]"
2.4 Amendments to Subsection 4.4. (a) Subsection 4.4 of the Credit
Agreement is hereby amended by deleting paragraph (c) of said subsection in
its entirety and inserting in lieu thereof the following:
"[Reserved]."
(b) Subsection 4.4(d) of the Credit Agreement is hereby amended
by deleting the proviso at the end of said clause (d) and by adding the
following new proviso to the end of said clause (d):
7
"provided, that the Net Cash Proceeds of the Hearing Aid
Disposition shall be applied in the following manner: (i) 100%
of the first $5,000,000 of such Net Cash Proceeds shall be
applied toward the prepayment of the Loans and the permanent
reduction of the Revolving Credit Commitments in accordance
with subsection 4.4(h), (ii) 100% of the next $5,000,000 of
such Net Cash Proceeds shall be applied toward the prepayment
of the Loans and the permanent reduction of the Revolving
Credit Commitments in accordance with Subsection 4.4(h)
provided that if no Default has or Event of Default has
occurred and is continuing on the date of such prepayment the
Borrower may retain up to 50% of such Net Cash Proceeds and
(iii) 100% of all such Net Cash Proceeds in excess of
$10,000,000 shall be applied toward the prepayment of the Loans
and the permanent reduction of the Revolving Credit Commitments
in accordance with Subsection 4.4(h)."
(c) Subsection 4.4(e) of the Credit Agreement is hereby amended
by deleting the period at the end of said clause (e) and by adding the
following new proviso to the end of said clause (e):
"provided, that to the extent that such issuances of Capital Stock do
not generate any Net Cash Proceeds, the following issuances of
Capital Stock shall not be subject to this clause (e): (i) the
issuance of Capital Stock of Telex in connection with the Telex
Exchange or any exchange, subsequent to the Telex Exchange, of New
Telex Subordinated Notes and/or Preferred Stock or common stock and
warrants to purchase Preferred Stock or common stock for the Senior
Subordinated Notes and the EVI Senior Subordinated Notes or (ii) the
issuance by Telex of registered securities substantially identical to
the New Telex Subordinated Notes and Preferred Stock or common stock
and warrants to purchase Preferred Stock or common stock of Telex in
exchange for the New Telex Subordinated Notes and the Preferred Stock
or common stock and the warrants to purchase Preferred Stock or
common stock pursuant to the registration obligations of the Borrower
under the Telex Exchange."
2.5 Amendments to Subsection 7.2. (a) Subsection 7.2(h) of the Credit
Agreement is hereby amended by deleting the period at the end thereof and
inserting in lieu thereof the phrase "; and".
(b) Subsection 7.2 of the Credit Agreement is hereby amended by
inserting at the end thereof a new paragraph 7.2(i) as set forth below:
"(i) by September 30, 2002 a business plan, budget and cash
flow for 2003 on a consolidated and consolidating basis, in form and
substance satisfactory to the Required Lenders."
2.6 Amendment to Subsection 7.10. Subsection 7.10 of the Credit
Agreement is hereby amended by inserting at the end thereof a new paragraph
7.10(d) as set forth below:
8
"(d) Title Endorsements; Other: Within thirty (30) days from the
Amendment No. 5 Effective Date, the Borrower shall provide to the
Administrative Agent: (i) endorsements to each of the mortgagee's title
insurance policies delivered under subsection 6.1(r) in form and substance
satisfactory to the Administrative Agent and its counsel, which
endorsements shall (A) re-date such title policies to the date of the
recording of the relevant Mortgage Amendment, (B) insure the lien of each
Mortgage as amended by the relevant Mortgage Amendment as a valid first
Lien on the Mortgaged Property encumbered thereby and (C) show only such
additional exceptions to the Administrative Agent's title insurance
coverage as may be permitted by subsection 8.3 and as may be approved by
the Administrative Agent and its counsel, and the Borrower shall provide
such affidavits and other instruments to the Title Insurance Company as may
be reasonably required by the Title Insurance Company (including, without
limitation, updates of the surveys delivered under subsection 6.1(q) or
survey affidavits in lieu thereof to the extent applicable); (ii) copies of
all recorded documents referred to or listed as exceptions in such
endorsements; (iii) evidence reasonably satisfactory to it that all
premiums in respect of each such endorsement and all charges for mortgage
recording tax in connection with the Mortgage Amendments, if any, have been
paid; and (iv) if requested by the Administrative Agent, opinions of local
counsel in the states of Minnesota and Tennessee with respect to the
Mortgage Amendments recorded in such jurisdictions and mortgage recording
tax payable in connection therewith, each in form and substance reasonably
satisfactory to the Administrative Agent."
2.7 Amendment to Subsection 8.1. Subsection 8.1 of the Credit
Agreement is hereby amended by deleting paragraph (a) thereof in its
entirety and substituting in lieu thereof the following new paragraph (a):
"(a) Minimum Consolidated EBITDA. Permit the Consolidated
EBITDA of the Borrower for any fiscal period of the Borrower set forth
below to be less than the amount set forth opposite to such period below:
Period Amount
------ ------
January 1, 2002 -- March 31, 2002 $ 6,250,000
January 1, 2002 -- June 30, 2002 $12,500,000
January 1, 2002 -- September 30, 2002 $18,750,000
January 1, 2002 -- December 31, 2002 $25,000,000
The four fiscal quarters ending on March 31, 2003 $26,750,000
The four fiscal quarters ending on June 30, 2003 $28,500,000
The four fiscal quarters ending on September 30, 2003 $30,250,000
The four fiscal quarters ending on December 31, 2003 $32,000,000
provided, that if the Borrower or any of its Subsidiaries consummates the
sale or other Disposition of any business which generated in the last
twelve months in excess of $2,000,000 of Consolidated EBITDA (it being
agreed that the calculation of such Consolidated EBITDA shall be reasonably
acceptable to the Administrative Agent), in a transaction permitted under
(or otherwise consented to in accordance with the terms of) this Agreement,
the amount set forth above for the test period in which such transaction is
so consummated and for any subsequent
9
test period shall be reduced (in the case of the test period in which such
transaction is so consummated on a pro-rata basis excluding the portion of
the test period elapsed as at such date) by an amount equal to (i) for each
test period ending during the next twelve months, the pro-rata portion of
Consolidated EBITDA generated in the last twelve months by such business
and (ii) for each subsequent test period, an amount equal to the
Consolidated EBITDA generated in the last twelve months by such business."
2.8 Amendment to Subsection 8.2. Subsection 8.2 of the Credit
Agreement is hereby amended by deleting clause (b) of said subsection in
its entirety and substituting in lieu thereof the following new clause (b):
"(b) Indebtedness under the New Telex Senior Subordinated
Indenture or evidenced by the New Telex Subordinated Notes; provided that
such Indebtedness shall not be extended, renewed, replaced, refinanced or
otherwise amended except as otherwise permitted by subsection 8.12(d)."
2.9 Amendment to Subsection 8.6. Subsection 8.6 of the Credit
Agreement is hereby amended by, (i) deleting the word "and" from the end of
subsection 8.6(g), (ii) deleting the period from the end of subsection
8.6(h) and inserting in lieu thereof ";", and (iii) inserting new
subsections 8.6(i) and 8.6(j) as set forth below:
"(i) the Disposition by the Borrower and its Affiliates in one
or more transactions, of all or part of its hearing aid business (including
any real estate associated therewith) provided, that each such Disposition
is to a non Affiliate of the Borrower, is for cash consideration and is
entered into on arms length terms; and
(j) (x) the issuance of Preferred Stock or common stock and
warrants to purchase Preferred Stock or common stock of Telex in
consummation of the Telex Exchange or any exchange, subsequent to the Telex
Exchange, of New Telex Subordinated Notes and/or Preferred Stock or common
stock and warrants to purchase Preferred Stock or common stock for the
Senior Subordinated Notes and the EVI Senior Subordinated Notes and (y) the
issuance of registered securities substantially identical to the New Telex
Subordinated Notes and the Preferred Stock or common stock and warrants to
purchase Preferred Stock or common stock in exchange for the New Telex
Subordinated Notes and the Preferred Stock or common stock and the warrants
to purchase Preferred Stock or common stock pursuant to the registration
obligations of the Borrower under the Telex Exchange."
2.10 Amendment to Subsection 8.7. Subsection 8.7 of the Credit
Agreement is hereby amended by deleting the comma after the word "Borrower"
where it appears before the words "except that:" in said subsection and
inserting in lieu thereof a period, and by deleting the rest of said
subsection following such period.
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2.11 Amendment to Subsection 8.8. Subsection 8.8 of the Credit
Agreement is hereby amended by deleting the table and the proviso contained
therein in its entirety and inserting in lieu thereof the following new
table and proviso:
" Test Period Amount
----------- ------
January 1, 2001 -- December 31, 2001 $8,000,000
January 1, 2002 -- December 31, 2002 $8,000,000
January 1, 2003 -- December 31, 2003 $8,000,000
January 1, 2004 -- April 30, 2004 $2,666,667
provided that an amount, not to exceed $4,000,000 for any test
period, of Capital Expenditures permitted to be made during any test
period and not made during such test period may be carried over and
expended during the next succeeding test period only."
2.12 Amendment to Subsection 8.9. Subsection 8.9 of the Credit
Agreement is hereby amended by deleting therefrom clause (e) in its
entirety and inserting in lieu thereof a new clause (e) as follows:
"(e)(i) loans and advances to officers, directors or employees
of the Borrower or any of its Subsidiaries in the ordinary course of
business for travel and entertainment expenses or relocation expenses
or (ii) relating to indemnification or reimbursement of any officers,
directors or employees in respect of liabilities relating to their
serving in any such capacity or as otherwise specified in subsection
8.10;"
2.13 Amendment to Subsection 8.10. Subsection 8.10 of the Credit
Agreement is hereby amended by deleting clause (vi) in its entirety and
inserting in lieu thereof the following:
"(vi) [Reserved]; or".
2.14 Amendment to Subsection 8.12. Subsection 8.12 of the Credit
Agreement is hereby amended by deleting such subsection in its entirety and
inserting in lieu thereof the following new subsection 8.12:
"8.12 Limitation on Payments, Optional and Modifications of
Debt Instruments and Other Documents. (a) Make any purchase or
redemption of any of the Senior Subordinated Notes, the EVI Senior
Subordinated Notes, the New Telex Subordinated Notes or the New
Indebtedness, including, without limitation, any payments on account
of, or for a sinking or other analogous fund for, the purchase,
redemption, defeasance or other acquisition thereof, except payments
of interest, as required by (x) the terms of the Senior Subordinated
Notes and the Senior Subordinated Indenture, as the case may be, or
the EVI Senior Subordinated Notes and the EVI Senior Subordinated
Note Indenture, as the case may be, (such interest payments not to
exceed, in aggregate $50,000.00 following the Amendment No. 5
Effective Date to the end of 2001 and in aggregate $100,000.00 for
each fiscal year thereafter) or (y) the terms of the notes and
documents with respect to the New Indebtedness, in each case, only to
the extent permitted under the subordination provisions, if any,
applicable thereto, and in the case of clause (y) above,
11
only to the extent permitted under subsection 8.12(e) hereof.
However, the foregoing shall not prohibit (i) the Telex Exchange or
any exchange, subsequent to the Telex Exchange, of New Telex
Subordinated Notes and/or Preferred Stock or common stock or warrants
to purchase Preferred Stock or common stock of Telex for the Senior
Subordinated Notes and the EVI Senior Subordinated Notes or (ii) the
issuance by the Borrower of registered securities substantially
identical to the New Telex Subordinated Notes and the Preferred Stock
or common stock and warrants to purchase Preferred Stock or common
stock of Telex in exchange for the New Telex Subordinated Notes and
the Preferred Stock or common stock and warrants to purchase
Preferred Stock or common stock pursuant to the registration
obligations of the Borrower under the Telex Exchange.
(b) Without prejudice to subsection 8.12(a) above, make any
payment to or for the benefit of holders of the New Telex
Subordinated Notes in respect of the New Telex Subordinated Notes or
the New Telex Senior Subordinated Indenture, unless the Borrower
shall have (i) made payment in full of the Loans, all Reimbursement
Obligations and any other amounts then due and owing to any Lender or
the Administrative Agent hereunder and under any Note and cash
collateralized the L/C Obligations on terms reasonably satisfactory
to the Administrative Agent or (ii) made an offer to pay the Loans,
all Reimbursement Obligations and any amounts then due and owing to
each Lender and the Administrative Agent hereunder and under any Note
and to cash collateralize the L/C Obligations in respect of each
Lender and shall have made payment in full thereof to each such
Lender or the Administrative Agent which has accepted such offer and
cash collateralized the L/C Obligations in respect of each such
Lender which has accepted such offer.
(c) In the event of the occurrence of a Change of Control,
purchase the Senior Subordinated Notes, the EVI Senior Subordinated
Notes, the New Telex Subordinated Notes or the New Indebtedness or
any portion of any thereof, unless the Borrower shall have (i) made
payment in full of the Loans, all Reimbursement Obligations and any
other amounts then due and owing to any Lender or the Administrative
Agent hereunder and under any Note and cash collateralized the L/C
Obligations on terms reasonably satisfactory to the Administrative
Agent or (ii) made an offer to pay the Loans, all Reimbursement
Obligations and any amounts then due and owing to each Lender and the
Administrative Agent hereunder and under any Note and to cash
collateralize the L/C Obligations in respect of each Lender and shall
have made payment in full thereof to each such Lender or the
Administrative Agent which has accepted such offer and cash
collateralized the L/C Obligations in respect of each such Lender
which has accepted such offer.
(d) Amend, supplement, waive or otherwise modify, including by
an exchange (other than in the case of the Senior Subordinated Notes
and the EVI Senior Subordinated Notes, by the Telex Exchange and
other than in connection with the issuance by the Borrower of
registered securities substantially identical to the New Telex
Subordinated Notes in exchange for the New Telex Subordinated Notes
pursuant to the registration obligations of the Borrower under the
Telex Exchange), any of the provisions of any of the Senior
Subordinated Notes, the Senior Subordinated Note Documents, the EVI
Senior Subordinated Notes, the EVI Senior Subordinated Note
Documents, the New Telex
12
Subordinated Notes, the New Telex Subordinated Note Documents or the
notes and documents with respect to the New Indebtedness:
(i) which amends or modifies the subordination provisions, if
any, contained therein or relating thereto;
(ii) which shortens the fixed maturity or increases the
principal amount of, or increases the rate or shortens the time
of payment of interest on, or increases the amount or shortens
the time of payment of any principal or premium payable whether
at maturity, at a date fixed for prepayment or by acceleration
or otherwise of the Indebtedness evidenced by the Senior
Subordinated Notes, the EVI Senior Subordinated Notes, New
Telex Subordinated Notes or the notes in respect of the New
Indebtedness, or increases the amount of, or accelerates the
time of payment of, any fees or other amounts payable in
connection therewith, or changes scheduled interest payment
dates;
(iii) which relates to any material affirmative or negative
covenants or any events of default or remedies thereunder and
the effect of which is to subject the Borrower or any of its
Subsidiaries to any more onerous or more restrictive
provisions; or
(iv) which otherwise adversely affects the interests of the
Lenders as senior creditors with respect to the Senior
Subordinated Notes, the EVI Senior Subordinated Notes, New
Telex Subordinated Notes or the New Indebtedness or the
interests of the Lenders under this Agreement or any other Loan
Document in any material respect.
(e) Pay in cash or other property (other than in-kind payments)
any interest on the New Indebtedness provided, that the Borrower may,
no more frequently than quarterly, pay accrued interest in cash on
the New Indebtedness on scheduled interest payment dates thereunder
in an amount not to exceed, (i) on each quarterly interest payment
date $1,400,000, and (ii) in aggregate, $5,600,000 in any fiscal
year, beginning with fiscal year 2002, if after including (together
with other amounts included in Consolidated Interest Expense) an
amount equal to $5,600,000 in the definition of Consolidated Interest
Expense for the purpose of calculating the Fixed Charge Ratio, the
Fixed Charge Ratio at the time of the proposed interest payment shall
be greater than or equal to 1.0 to 1.0 and the Borrower shall have
delivered to the Administrative Agent at least 10 Business Days prior
to such payment reasonably detailed calculations, in form and
substance satisfactory to the Administrative Agent, setting forth the
Fixed Charge Ratio for such period (after including such $5,600,000
amount in the definition of Consolidated Interest Expense for the
purpose of the calculation) together with a certificate of a
Responsible Officer of the Borrower certifying compliance with this
subsection 8.12(e).
2.15 Amendment to Section 9. Section 9 of the Credit Agreement is
hereby amended by inserting the following new clause (o) in said section:
13
"(o) The New Telex Subordinated Notes or the New Indebtedness,
for any reason, shall not be, shall cease to be or the Borrower shall
assert that they are not, validly subordinated as provided therein
and in the New Telex Subordinated Note Documents or the Intercreditor
Agreement, as the case may be, to the obligations of the Borrower
under this Agreement, any Notes and the other Loan Documents."
SECTION 3. AGREEMENTS AND ASSUMPTION.
3.1 Additional Amortization. The Required Lenders hereby agree that
the obligation of the Borrower to have made mandatory prepayments under
subsection 4.4(d) of not less than $20,000,000 as required by Section 3.1
of Amendment No. 4 shall be waived and the failure to do so shall not
constitute an Event of Default under subsection 9(a) of the Credit
Agreement.
3.2 Management Fees. Notwithstanding anything to the contrary
contained in the Credit Agreement, the Borrower represents and warrants
that GSCP has consented to not accept at any time or for any period
subsequent to December 31, 2000 and prior to the repayment in full of the
Loans and the termination of the Revolving Credit Commitments any payment
in cash or other property for its management fee (as more fully set forth
in the agreement between Telex and GSCP for the rendering of management
consulting or financial advisory services described in Section 8.10(ii) of
the Credit Agreement), and the Borrower agrees not to pay such management
fee in cash or any other property at any such time; however, such fees may
accrue and remain an obligation of the Borrower.
3.3 Holdings. The Lenders acknowledge and agree that Holdings is a
party to this Agreement solely for purposes of amending the Credit
Agreement. Accordingly, notwithstanding anything to the contrary contained
in the Credit Agreement or any Loan Document, the Lenders agree that
Holdings shall not have any liability or obligation whatsoever to the
Lenders under the Credit Agreement or any Loan Document and shall not be
deemed to be a party to the Credit Agreement or any Loan Document after the
Amendment No. 5 Effective Date.
3.4 Security Documents. Notwithstanding anything to the contrary
contained in the Credit Agreement or any other Loan Document, the Lenders
agree that (i) the New Telex Subordinated Notes, the Preferred Stock or
common stock and the warrants to purchase Preferred Stock or common stock
of Telex to be issued in connection with the Telex Exchange and (ii) the
registered securities substantially identical to the New Telex Subordinated
Notes, the Preferred Stock or common stock and warrants to purchase
Preferred Stock or common stock of Telex to be issued in exchange for the
New Telex Subordinated Notes, the Preferred Stock or common stock and the
warrants to purchase Preferred Stock or common stock pursuant to the
registration obligations of the Borrower under the Telex Exchange, in each
case, shall not be subject to any of the Security Documents or the Liens
created thereunder.
SECTION 4. WAIVERS.
4.1 Waiver of Subsection 8.1. The Lenders hereby waive any Default or
Event of Default under subsection 9(c) of the Credit Agreement as a result
of the Borrower's failure to
14
maintain the Minimum Consolidated EBITDA required pursuant to subsection
8.1 of the Credit Agreement for the period of three fiscal quarters ending
on September 30, 2001.
4.2 Waiver of Subsection 9(e). The Lenders hereby waive any Default
or Event of Default under subsection 9(e) of the Credit Agreement as a
result of the Borrower's failure to pay interest on the EVI Senior
Subordinated Notes on September 17, 2001, the Borrower's failure to pay
interest on the Senior Subordinated Notes in November 2001 and the
Borrower's failure to maintain the Minimum Consolidated EBITDA required
pursuant to Section 8.1 of the Junior Credit Agreement for the period of
three fiscal quarters ending on September 30, 2001.
4.3 Waiver of Subsection 9(m). The Lenders hereby waive any Default
or Event of Default under subsection 9(m) of the Credit Agreement as a
result of the Borrower's failure to maintain the Minimum Consolidated
EBITDA required pursuant to Section 8.1 of the Junior Credit Agreement for
the period of three fiscal quarters ending on September 30, 2001.
SECTION 5. CONSENT
5.1 Intercreditor Agreement. The Lenders hereby consent to the
Administrative Agent's execution and delivery of the Intercreditor
Amendment and the performance of its obligations thereunder.
SECTION 6. CONDITIONS PRECEDENT.
6.1 Effective Date. This Amendment shall become effective as of the
date first set forth above (the "Amendment No. 5 Effective Date") following
the date on which all of the following conditions have been satisfied or
waived; provided that the Amendment No. 5 Effective Date shall not occur if
the foregoing conditions are not so satisfied or waived prior to November
30, 2001:
(a) New Indebtedness. (i) The New Lenders and the Borrower shall have
duly executed and delivered the amendment documents relating to the
New Indebtedness, in form and substance satisfactory to the Lenders,
and (ii) the Borrower shall have received not less than $10 million
pursuant to such amendments of the New Indebtedness, which funds may
be used for general corporate purposes and to pay expenses related to
this Amendment and the Telex Exchange.
(b) Telex Exchange. The Borrower shall have consummated the Telex
Exchange such that more than 99% (by face value) of the existing
Senior Subordinated Notes and more than 99% (by face value) of the
existing EVI Senior Subordinated Notes of the Borrower shall have
been converted into (i) the New Telex Subordinated Notes with an
aggregate issue price of no more than $56,250,000 (assuming 100%
acceptance of the Telex Exchange) and (ii) Preferred Stock
convertible into, or common stock representing, at least 99% of the
common stock and warrants to purchase Preferred Stock or common stock
of Telex (assuming 100% acceptance of the Telex Exchange). Any New
Telex Subordinated Notes, Preferred Stock or common stock and
warrants to purchase Preferred Stock or common stock not exchanged
pursuant to the Telex Exchange may be retained by and may be
exchanged by Telex subsequent to the Telex Exchange, for Senior
Subordinated Notes and EVI Senior Subordinated Notes which are not
tendered
15
and accepted pursuant to the Telex Exchange. The terms of the New
Telex Subordinated Notes shall be in form and substance satisfactory
to the Lenders, such terms to include (i) maturity no earlier than
September 15, 2006, (ii) no cash pay interest, (iii) accretion rate
not to exceed 13% per annum, and (iv) subordination provisions
consistent with the terms applicable to the New Indebtedness as set
forth in the Intercreditor Agreement. The terms of the Telex Exchange
shall be in form and substance satisfactory to the Lenders.
(c) Amendment Fee. The Administrative Agent shall have received, for
the account of each consenting Lender, an amendment fee of 1.00% of
the Revolving Credit Commitment and outstanding Terms Loans of each
Lender consenting to this Amendment;
(d) Arrangement Fee. The Administrative Agent shall have received an
arrangement fee as agreed between the Borrower and the Administrative
Agent;
(e) Execution and Delivery. The Administrative Agent shall have
received counterparts of (i) this Amendment duly executed by the
Borrower, the Guarantors and each Lender, (ii) the Intercreditor
Amendment duly executed by each of the parties thereto and (iii) each
of the Mortgage Amendments duly executed by each of the parties
thereto.
(f) Consents. The Borrower shall have received all necessary
consents, approvals or authorizations required to undertake the
transactions contemplated hereby and shall have provided copies of
such consents, approvals or authorizations to the Administrative
Agent.
(g) Business Plan. The Borrower shall have delivered to the
Administrative Agent and the Lenders (i) an "annual operating plan"
for 2002 which shall include a profit and loss statement, a cash flow
and a balance sheet statement; the profit and loss statement shall be
prepared by business unit on a consolidated and consolidating basis,
and (ii) a business plan for 2003 and 2004 which shall include a
profit and loss forecast, prepared on a consolidated basis.
(h) Maintenance of Security Interests. The Lenders shall be satisfied
that the transactions contemplated hereby shall not adversely affect
the perfection or priority of the Liens on the Collateral created
pursuant to the Loan Documents and the Borrower and its Subsidiaries
shall have taken all actions required by the Administrative Agent to
maintain such perfection and priority.
SECTION 7. GENERAL.
7.1 Representation and Warranties. In order to induce the
Administrative Agent and the Lenders to enter into this Amendment, the
Borrower hereby represents and warrants to the Administrative Agent and the
Lenders that the representations and warranties of the Borrower contained
in the Loan Documents are true and correct in all material respects on and
as of the Amendment No. 5 Effective Date (after giving effect hereto) as if
made on and as of the Amendment No. 5 Effective Date (except where such
representations and warranties expressly relate to an earlier date in which
case such representations and warranties were true and correct
16
in all material respects as of such earlier date); provided that all
references to the "Credit Agreement" in any Loan Document shall be and are
deemed to mean the Credit Agreement as amended hereby; provided further
that, all representations and warranties relating to Holdings contained in
the Loan Documents shall be (to the extent that they relate to Holdings
only) and are deemed to be deleted on and as of the Amendment No. 5
Effective Date.
7.2 Validity of Obligations; Release. Each Loan Party acknowledges
and agrees that (a) such Loan Party is truly and justly indebted to the
Lenders and the Administrative Agent for the Obligations, without defense,
counterclaim or offset of any kind, and such Loan Party ratifies and
reaffirms the validity, enforceability and binding nature of such
Obligations and (b) such Loan Party has no claim, right or cause of action
of any kind against any Lender, the Administrative Agent or any of such
Lender's or the Administrative Agent's present or former subsidiaries,
Affiliates, officers, directors, employees, attorneys or other
representatives or agents (collectively with their respective successors
and assigns, the "Lender Parties") in connection with the Obligations, the
Credit Agreement and the other Loan Documents, or the transactions
contemplated hereby or thereby. Each Loan Party unconditionally, freely,
voluntarily and, after consultation with counsel and becoming fully and
adequately informed as to the relevant facts, circumstances and
consequences, releases, waives and forever discharges (and further agrees
not to allege, claim or pursue) any and all claims, rights, liabilities,
causes of action, counterclaims or defenses of any kind whatsoever, in
contract or in tort, in law or in equity, whether known or unknown, direct
or derivative, which such Loan Party or any predecessor, successor or
assign might otherwise have or may have against any Lender Party on account
of any conduct, condition, act, omission, event, contract, liability,
obligation, demand, covenant, promise, indebtedness, claim, right, cause of
action, suit, damage, defense, circumstance or matter of any kind
whatsoever which existed, arose or occurred at any time prior to the
Amendment No. 5 Effective Date in connection with the Obligations, the
Credit Agreement and the other Loan Documents, or the transactions
contemplated hereby or thereby.
7.3 Affirmation of Guarantees and Security Interests. Each Guarantor
party hereto hereby consents to the execution, delivery and effectiveness
of this Amendment and reaffirms its obligations under the Guarantee and
Collateral Agreement.
7.4 Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with this Amendment, any other documents
prepared in connection herewith and the transactions contemplated hereby,
including, without limitation, the payment of any recording taxes in
connection with the Mortgage Amendments and the reasonable fees and
disbursements of counsel to the Administrative Agent.
7.5 Counterparts. This Amendment may be executed in two or more
counterparts (including by facsimile transmission), each of which shall
constitute an original, but all of which when taken together shall
constitute but one instrument.
7.6 Headings. Section headings used in this Amendment are for
convenience of reference only, are not part of this Amendment and are not
to affect the construction of, or to be taken into consideration in
interpreting, this Amendment.
17
7.7 Continuing Effect of Loan Documents. This Amendment shall not
constitute an amendment or waiver of any other provision of the Credit
Agreement not expressly referred to herein and shall not be construed as a
waiver or consent to any further or future action on the part of the
Borrower that would require a waiver or consent of the Required Lenders or
Lenders, as the case may be, or the Administrative Agent. Except as
expressly amended, modified and supplemented hereby, the provisions of the
Credit Agreement and the other Loan Documents are and shall remain in full
force and effect.
7.8 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
[INTENTIONAL END OF PAGE]
18
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and
duly authorized officers as of the day and year first above written.
TELEX COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President and Chief Financial Officer
TELEX COMMUNICATIONS GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President and Chief Financial Officer
TELEX COMMUNICATIONS INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------
Title: Vice President & Chief Financial Officer
JPMORGAN CHASE BANK,
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Title: Managing Director
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SENIOR FUNDING, INC.,
as Documentation Agent
By:
------------------------------------------
Title:
U.S. BANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Title: AVP
▇▇▇▇▇▇ FINANCIAL, INC.
By: /s/ K. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Title: Senior Vice President
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ M.D. ▇▇▇▇▇
-------------------------------------------
Title: Agent
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND, INC.
By: /s/ Harsh ▇▇▇▇▇
-------------------------------------------
Title: Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIME RATE PORTFOLIO
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.,
as Investment Advisor
By: /s/ Harsh ▇▇▇▇▇
-------------------------------------------
Title: Authorized Signatory
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
BY: ING CAPITAL ADVISORS, INC., as
Investment Advisor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Senior Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
PRIME INCOME TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Executive Director
CRESCENT/MACH I PARTNERS, L.P.
by: TCW ASSET MANAGEMENT COMPANY
ITS INVESTMENT MANAGER
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: Senior Vice President
KZH-ING-1 LLC (formerly known as
KZH HOLDING CORPORATION II)
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
Title: Authorized Agent
20
THE TRAVELERS INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Vice President
KZH PAMCO LLC
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
Title: Authorized Agent
INDOSUEZ CAPITAL FUNDING III, LIMITED
BY: INDOSUEZ CAPITAL, AS PORTFOLIO
ADVISOR
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Vice President
PAMCO CAYMAN LTD.
BY: HIGHLAND ASSET MANAGEMENT
COMPANY AS COLLATERAL MANAGER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Executive Vice President-CFO
Highland Capital Management, L.P.
▇▇▇ CAPITAL FUNDING LP
BY: HIGHLAND CAPITAL MANAGEMENT L.P.
AS COLLATERAL MANAGER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Executive Vice President-CFO
Highland Capital Management, L.P.
ML CBO IV (CAYMAN) LTD.
BY: HIGHLAND CAPITAL MANAGEMENT L.P.
AS COLLATERAL MANAGER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Executive Vice President-CFO
Highland Capital Management, L.P.
21
KZH-CRESCENT LLC
By: /s/ ▇▇▇▇▇ ▇▇▇
-------------------------------------------
Title: Authorized Agent
SENIOR DEBT PORTFOLIO
By: BOSTON MANAGEMENT & RESEARCH,
AS INVESTMENT ADVISOR
By: /s/ ▇▇▇▇▇ ▇. Page
-------------------------------------------
Title: Vice President
NATEXIS BANQUE BFCE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Title: Vice President Leveraged Finance
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: Associate
WAYLAND INVESTMENT FUND, LLC
By: CFSC WAYLAND ADVISERS, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ Pear
-------------------------------------------
Title: Assistant Vice President
ELF FUNDING TRUST I
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Executive Vice President-CFO
Highland Capital Management, L.P.
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------
Title: Vice President
ARK CLO 2000-1 LIMITED
By: Patriarch Partners, LLC,
Its Collateral Manager
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Title: Authorized Signatory
22