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Exhibit 10.42
FOURTH AMENDMENT TO NOTE PURCHASE
AND EXCHANGE AGREEMENT
This FOURTH AMENDMENT (this "Fourth Amendment") is made as of this
12th day of July, 1996, between Falcon Telecable, a California limited
partnership (the "Company"), AUSA Life Insurance Company, Inc. and MONY Life
Insurance Company of America (the "Purchasers").
WHEREAS, by a Note Purchase and Exchange Agreement dated as of October
21, 1991, as heretofore amended, (the "Agreement"), between the Company and The
Mutual Life Insurance Company of New York and MONY Life Insurance Company of
America, the Company issued its 11.56% Series A Subordinated Notes due March
31, 2001 and its 11.56% Series B Subordinated Notes due March 31, 2001
(collectively, the "Notes"); and
WHEREAS, the Purchasers are the holders of the entire outstanding
principal amount of the Notes; and
WHEREAS, the Company and the Purchasers wish to amend the Agreement as
set forth below.
NOW, THEREFORE, in consideration of the mutual covenants set out
herein, the parties hereto agree as follows:
1. Section 7 of the Agreement is amended as follows:
a. Section 7.19 is amended to read as follows:
"7.19 Compliance With Bank Credit Agreement. The
Company shall comply, and shall cause the Restricted Companies
to comply, with each of the covenants contained in Section 7
of the Bank Credit Agreement (other than Sections 7.5.2 and
7.15) as in effect on the Fourth Amendment Closing Date
(except as such covenants may be amended pursuant to Section
7.20 below, other than those set forth in the immediately
following paragraph), a copy of which is attached hereto as
Exhibit E. All references therein to Lenders, Managing Agent
and similar Persons shall be deemed, for purposes of this
Agreement, to be the holders of the Notes."
For purposes of this Agreement, the incorporated provisions of
Sections 7.5.1, 7.5.3 and 7.5.4 of the Bank Credit Agreement (as defined in
Section 3 below) are amended to read as follows and shall not be subject to
amendment or modification without the consent of the holders of the Notes:
"Consolidated Total Debt to Consolidated Annualized
Operating Cash Flow. Consolidated
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Total Debt shall not on any date exceed the percentage
indicated in the table below of Consolidated Annualized
Operating Cash Flow for the period of three consecutive months
then most recently ended for which financial statements have
been (or are required to have been) furnished in accordance
with Section 8:
Date Percentage
---- ----------
Fourth Amendment Closing Date
through June 29, 1999 650%
June 30, 1999 through
December 30, 1999 600%
December 31, 1999 through
June 29, 2000 550%
June 30, 2000 through
December 30, 2000 500%
December 31, 2000 and
thereafter 450%
Consolidated Annualized Operating Cash Flow to
Consolidated Pro Forma Debt Service. As of the last day of
each month, Consolidated Annualized Operating Cash Flow for
the period of three consecutive months ended on such date
shall exceed 100% of Consolidated Pro Forma Debt Service for
the period of twelve consecutive months beginning immediately
after such date.
Consolidated Operating Cash Flow Plus Cash and Cash
Equivalents to Consolidated Total Fixed Charges. As of the
last day of each month commencing December 31, 2000, the sum
of (a) Consolidated Operating Cash Flow for the period of
twelve consecutive months ended on such date plus (b) the
lesser of (i) cash and Cash Equivalents owned by the
Restricted Companies as of such date determined in accordance
with GAAP on a Consolidated basis or (ii) $2,000,000 shall
exceed 95% of Consolidated Total Fixed Charges for such
period."
2. Section 9.1(c) of the Agreement is amended as follows:
"(c) the Company fails to perform or observe any
covenant or condition contained in Section 2.2, Section 7.20,
Section 7.21, or, to the extent resulting from a failure to
comply with Section 7.5 through Section 7.12, inclusive,
Section 7.14, Section 7.15, Section 7.17 or Section 7.18 of
the Bank Credit
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Agreement (as and to the extent modified and incorporated
herein);"
3. Section 11.1 of the Agreement is amended by incorporating by
reference each of the definitions set forth in Section 1 of the Bank Credit
Agreement (as defined in this Section 11 below) as in effect on the Fourth
Amendment Closing Date (as defined in this Section 11 below) (except as such
definitions are amended pursuant to Section 7.20 of the Agreement) to the
extent such definitions are referred to in, or are necessary to construe or
further define, the provisions and terms of the Bank Credit Agreement
incorporated herein, provided, that, all references therein to Lenders,
Administrative Agent, Managing Agent or similar Persons shall be deemed, for
purposes of this Agreement, to be the holders of Notes. To the extent that any
definition so incorporated by reference from the Bank Credit Agreement shall
conflict with, or be inconsistent with, any existing definition in the
Agreement, the definition so incorporated by reference shall prevail. In
addition, the following are added or substituted for existing definitions:
"'Bank Credit Agreement' means the Amended and Restated Credit
Agreement dated as of July 12, 1996, among the Company and other
borrowers and guarantors thereunder, the banks signatory thereto as
lenders and The First National Bank of Boston, as managing agent, a
copy of which is attached hereto as Exhibit E, as amended,
supplemented or otherwise modified from time to time, including any
amendment, supplement or modification to effect the refunding or
refinancing of the indebtedness outstanding thereunder.
'Bank Pledge Agreement' means the Amended and Restated Pledge
and Subordination Agreement dated as of July 12, 1996 among Holding,
L.P., Holding, Inc., the Guarantors and The First National Bank of
Boston, as managing agent, as amended, supplemented or otherwise
modified from time to time, including any amendment, supplement or
modification to reflect the refunding or refinancing of the
indebtedness outstanding under the Bank Credit Agreement.
'Fourth Amendment Closing Date' means the date described in
Section 4 of the Fourth Amendment.
'Fourth Amendment' means that certain Fourth Amendment to Note
Purchase and Exchange Agreement dated July 12, 1996 between the
Company and the Purchasers."
There is hereby added to the Agreement a revised Exhibit E
which shall be in the form of Exhibit A to this Fourth Amendment. The Bank
Credit Agreement is set forth in Exhibit A to this Fourth Amendment.
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4. The following are conditions precedent to the effectiveness of
this Fourth Amendment. The date on which all such conditions are met (or
waived by the Purchasers) shall be referred to herein as the "Fourth Amendment
Closing Date".
(a) The transactions contemplated by the Bank Credit
Agreement to be completed on the Initial Closing Date (as defined in
the Bank Credit Agreement) shall be completed and all conditions
theretofore shall have been fulfilled and the Bank Credit Agreement
shall be in full force and effect.
(b) All representations and warranties set forth in
Section 8 of the Bank Credit Agreement shall be true and correct as of
the Fourth Amendment Closing Date, and each of the Purchasers shall
have received a certificate from an authorized officer of each Person
making such representations stating that such representations and
warranties are true and correct, stating that each Purchaser may rely
on such representations and warranties as though the same were made to
such Purchaser and acknowledging that each Purchaser is relying on the
truth and accuracy of such representations and warranties in entering
into this Fourth Amendment and consummating the transactions
contemplated herein.
(c) The Purchasers shall have received from Weinstein,
Boldt, Racine & Halfhide counsel to the Company and the Restricted
Companies (as such term is defined in the Bank Credit Agreement), an
opinion addressed to the Purchasers to the effect and in the form of
opinion attached hereto as Exhibit B.
(d) The fees and expenses incurred by the Purchasers in
connection with this Fourth Amendment, including the fees and
disbursements of counsel to the Purchasers, shall have been paid, or
the Company shall have agreed to pay such amounts within 10 days of
receipt of an invoice therefor.
(e) The Purchasers shall have received such certificates
and other evidence as they may reasonably request with respect to the
due authorization and the taking of all necessary corporate and
partnership action in connection with the execution and delivery by
the Company, Holding, L.P. and Holding, Inc. of the agreements and
instruments contemplated by this Fourth Amendment.
(f) All proceedings taken in connection with this Fourth
Amendment and all documents and papers relating thereto shall be
satisfactory to the Purchasers and their special counsel. The
Purchasers and their special counsel shall have received copies of
such documents and
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papers as they may reasonably request in connection therewith, all in
form and substance satisfactory to the Purchasers and their special
counsel.
5. Each party hereby represents to the other that the individuals
executing this Fourth Amendment on its behalf are the duly appointed
signatories of the respective parties to this Fourth Amendment and that they
are authorized to execute this Fourth Amendment by or on behalf of the
respective party for whom they are signing and to take any and all action
required by the terms of the Fourth Amendment.
6. Except as amended hereby, the Agreement remains unchanged and,
as amended hereby, the Agreement remains in full force and effect. The Company
hereby reaffirms all of its obligations and undertakings under the Agreement as
amended hereby, and the Notes (as such term is defined in the Agreement), as
amended hereby. All references to the Agreement, the 11.56% Series A
Subordinated Notes (as defined in the Agreement) and the 11.56% Series B
Subordinated Notes (as defined in the Agreement) shall mean the Agreement and
such Notes as amended by this Fourth Amendment.
7. This Fourth Amendment may be executed in multiple
counterparts, each of which shall be deemed an original and all of which shall
constitute an agreement, notwithstanding that all of the parties are not
signatories on the same date or the same counterpart. A signature page may be
detached from one counterpart when executed and attached to another
counterpart.
[Remainder of page intentionally blank;
next page is signature page.]
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IN WITNESS WHEREOF, the parties have executed this Fourth Amendment to
the Note Purchase and Exchange Agreement as of the date first written above.
FALCON TELECABLE, A CALIFORNIA
LIMITED PARTNERSHIP
By: Falcon Telecable Investors
Group Ltd., a California
limited partnership,
Its General Partner
By: Falcon Holding Group, Inc.,
a California corporation,
Its General Partner
By_____________________________
XXXXXXX X. XXXXXXX
Chief Financial Officer
AUSA LIFE INSURANCE
COMPANY, INC.
By_____________________________
Title________________________
MONY LIFE INSURANCE COMPANY
OF AMERICA
By_____________________________
Title________________________
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