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Exhibit 10.44
SECOND RESTATED
GUARANTY AGREEMENT
SECOND RESTATED GUARANTY AGREEMENT (this "Agreement" or this "Guaranty
Agreement"), dated as of July 12, 1996, jointly and severally from each of
FALCON CABLEVISION, A CALIFORNIA LIMITED PARTNERSHIP, FALCON CABLE MEDIA, A
CALIFORNIA LIMITED PARTNERSHIP, FALCON COMMUNITY CABLE, L.P., a Delaware
limited partnership, FALCON COMMUNITY VENTURES I LIMITED PARTNERSHIP, a
California limited partnership, FALCON INVESTORS GROUP, LTD., A CALIFORNIA
LIMITED PARTNERSHIP, FALCON TELECABLE INVESTORS GROUP, A CALIFORNIA LIMITED
PARTNERSHIP, FALCON MEDIA INVESTORS GROUP, A CALIFORNIA LIMITED PARTNERSHIP,
FALCON COMMUNITY INVESTORS, L.P., a California limited partnership, FALCON
TELECOM, L.P., a California limited partnership, FALCON CABLE SYSTEMS COMPANY
II, L.P., a California limited partnership, and FALCON FIRST, INC., A DELAWARE
CORPORATION, (together with each other Person who is or becomes a guarantor
hereunder,herein referred to individually as a "Guarantor", and collectively,
as the "Guarantors"), in favor of each of AUSA LIFE INSURANCE COMPANY, INC. and
MONY LIFE INSURANCE COMPANY OF AMERICA (collectively, the "Purchasers", which
term shall include the successors and assigns of each, including, without
limitation, any one or more Persons holding any one or more of the Notes (as
defined below) on or after the date hereof).
W I T N E S S E T H:
WHEREAS, by a Note Purchase and Exchange Agreement dated as of October
21, 1991 (as amended from time to time prior to the date hereof, the "Old Note
Purchase Agreement") by and between Falcon Telecable, a California limited
partnership (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, as amended from time to
time, such notes, and any and all other notes for which such Notes, or any
successor Notes, may be substituted or exchanged pursuant to the Note Purchase
Agreement (defined below), are herein referred to as the "Notes"); and
WHEREAS, certain of the parties hereto entered into that certain
Guaranty Agreement dated March 29, 1993 (the "Original Guaranty") and the
Original Agreement was restated as of December 28, 1995 (the "Restated
Guaranty"); and
WHEREAS, concurrently herewith, the Purchasers and the Company are
entering into that certain Fourth Amendment to Note Purchase and Exchange
Agreement, dated as of July 12, 1996 (the "Amendment"), pursuant to which,
inter alia, the Company and the Purchasers are amending certain provisions of
the Old Note Purchase Agreement (as amended by the Amendment, and as amended
further from time to time, the Old Note Purchase Agreement is herein referred
to as the "Note Purchase Agreement"); and
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WHEREAS, concurrently with the execution and delivery of the Amendment
by the Company and the Purchasers, each of the Company, Falcon Cablevision, a
California Limited Partnership, Falcon Cable Media, a California limited
partnership, Falcon Community Cable, L.P., a Delaware limited partnership,
Falcon Community Ventures I Limited Partnership, a California limited
partnership, Falcon Telecom, L.P., a California limited partnership, Falcon
Cable Systems Company II, L.P., a California limited partnership, and Falcon
First, Inc., a Delaware corporation (collectively, the "Bank Borrowers") are
entering into that certain Credit Agreement (the "Bank Credit Agreement") dated
as of July 12, 1996, by and between the Company, the other Bank Borrowers, the
banks signatory thereto as lenders (the "Banks") and The First National Bank of
Boston, as managing agent; and
WHEREAS, the Old Note Purchase Agreement provides, inter alia, for a
limitation on certain actions by the Company; and
WHEREAS, in the absence of the execution and delivery of the Amendment
by the Purchasers, (i) the Company would be unable to enter into the Bank
Credit Agreement and (ii) the Banks would be unwilling to enter into the Bank
Credit Agreement with the Company and the other Bank Borrowers; and
WHEREAS, the Bank Credit Agreement will provide the Company, the other
Bank Borrowers and the Guarantors which are not Bank Borrowers access to credit
and funds in excess of the amount of credit and funds available to them in the
absence of the Bank Credit Agreement; and
WHEREAS, it is a condition precedent to the entry by the Company and
the other Bank Borrowers into the Bank Credit Agreement that the Purchasers and
the Company enter into the Amendment; and
WHEREAS, it is a condition precedent to the entry by the Purchasers
and the Company into the Amendment that the Company and the Guarantors enter
into this Agreement and guarantee the payment and performance of all
obligations of the Company arising under, or in respect of, the Notes and the
Note Purchase Agreement, as further set forth herein; and
WHEREAS, each Guarantor desires that the Purchasers enter into the
Amendment and each is willing to execute this Guaranty Agreement in order to
induce the Purchasers to do so; and
NOW, THEREFORE, in order to induce the Purchasers to enter into the
Amendment, and in consideration therefor, and in consideration of $1.00 and
other good and valuable consideration to each Guarantor paid (the receipt and
sufficiency of which are hereby acknowledged), each Guarantor hereby agrees
that the Guaranty as restated by the Restated Guaranty is hereby restated in
full as follows:
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1. DEFINITIONS. The capitalized terms used herein, which are
defined or referred to in Section 6 hereof, shall have the respective meanings
ascribed to them in said Section 6. All other capitalized terms used herein
but not defined herein shall have the respective meanings assigned to them
within the Note Purchase Agreement.
2. THE GUARANTY. Each Guarantor hereby irrevocably and
unconditionally, and jointly and severally with each other Guarantor,
guarantees, as and for its own debt, until final and indefeasible payment has
been made, the due and punctual payment of the principal and interest of, and
premium or Make-Whole Amount, if any, on all Notes at any time outstanding and
the due and punctual payment of all moneys payable, and all other indebtedness
owing, by the Company under the Note Purchase Agreement and all other documents
contemplated thereby (collectively, the "Indebtedness") in each case when and
as the same shall become due and payable, whether at maturity, pursuant to
mandatory or optional prepayment, by acceleration or otherwise, all in
accordance with the terms and provisions thereof; it being the intent of each
Guarantor that the guaranty set forth herein shall be a guaranty of payment and
not a guaranty of collection. Each Guarantor hereby further unconditionally,
jointly and severally with each other Guarantor, guarantees the punctual and
faithful performance, keeping, observance and fulfillment by the Company of all
duties, agreements, covenants and obligations of the Company contained in the
Notes, in the Note Purchase Agreement and the other documents to which it is a
party. In the event the Company fails to make, on or before the due date
thereof, any payment to be made of any principal amount of, or interest,
premium or Make-Whole Amount (if any) on, or in respect of, the Notes or of any
other amounts due under the Notes, the Note Purchase Agreement or the other
documents to which the Company is a party, or if the Company shall fail to
perform, keep, observe or fulfill any such obligation as aforesaid in the
manner provided in any one or more of the Notes, the Note Purchase Agreement or
such other documents, each Guarantor shall cause forthwith to be paid the
moneys or to be performed, kept, observed or fulfilled each of said obligations
in respect of which such failure has occurred as if such payment or
performance, as the case may be, were being made under the Notes, the Note
Purchase Agreement or such other documents, as appropriate.
Each Guarantor does hereby waive: notice of acceptance
hereof; notice of any purchase of Notes issued under the Note Purchase
Agreement or the extension of credit from time to time given by any Purchaser
to the Company and the creation, existence or acquisition of any of the
Indebtedness; notice of the amount of the Indebtedness, subject, however, to
each Guarantor's right to make inquiry of the Purchasers to ascertain the
amount of the Indebtedness at any reasonable time; notice of adverse change in
the financial condition of the Company or of any other fact which might
increase any Guarantor's risk; notice of presentment for payment, demand,
protest and notice thereof as to the Notes or any other instrument; notice of
default; all defenses, offsets and
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counterclaims which any Guarantor may at any time have to any claim of any of
the Purchasers against the Company; and all other notices and demands to which
any Guarantor might otherwise be entitled.
Each Guarantor further waives the rights by statute or
otherwise to require the Purchasers to institute suit against the Company or to
exhaust their rights and remedies against the Company or any other guarantor,
each Guarantor being bound to the payment of each and all Indebtedness whether
now existing or hereafter accruing as fully as if such Indebtedness were
directly owing to the Purchasers by each Guarantor. Each Guarantor further
waives any defense arising by reason of any disability or other defense of the
Company or by reason of the cessation from any cause whatsoever of the
liability of the Company. Until all of the Indebtedness shall have been paid
in full, each Guarantor shall have no right of subrogation, reimbursement or
indemnity whatsoever and no right of recourse to or with respect to any assets
or property of the Company. Nothing shall discharge or satisfy the liability
of each Guarantor hereunder except the full and final performance and
indefeasible payment of the Indebtedness.
The Purchasers shall have, to the fullest extent permitted by
law, the right of set-off in respect of any and all credits and any and all
other property of any Guarantor, now or at any time whatsoever with, or in the
possession of, any of the Purchasers for any and all obligations of such
Guarantor hereunder.
Each Guarantor consents and agrees that, without notice to or
by such Guarantor and without affecting or impairing the obligations of such
Guarantor hereunder, the Purchasers may, in the manner provided in the Note,
the Note Purchase Agreement or any other documents to which any is a party, by
action or inaction, compromise or settle, extend the period of duration or the
time for the payment or discharge or performance of, or may refuse to, or
otherwise not, enforce, or may, by action or inaction, release all or any one
or more parties to, any one or more of the Notes, the Note Purchase Agreement
or any other document to which any is a party, or may grant other indulgences
to the Company in respect thereof, or may amend or modify in any manner and at
any time (or from time to time) any one or more of the Notes, the Note Purchase
Agreement, or any other such document, or may, by action or inaction, release
or substitute any one or more of the endorsers or guarantors of the
Indebtedness, whether parties to this instrument or not.
Each Guarantor consents and agrees that the Purchasers shall
be under no obligation to xxxxxxxx any assets in favor of such Guarantor, or
against or in payment of any or all of the Indebtedness. Each Guarantor agrees
to pay all expenses incurred by any of the Purchasers in connection with the
protection, assertion or enforcement of their rights under this Guaranty
Agreement, including, without limitation, court costs, collection charges and
reasonable attorneys' fees and disbursements. Each Guarantor further agrees
that, to the extent the Company makes a
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payment or payments to any Purchaser, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required, for any of the foregoing reasons or for
any other reason, to be repaid or paid over to a custodian, trustee, receiver
or any other party under any bankruptcy law or act, state or federal law,
common law or equitable cause, then, to the extent of such payment or
repayment, the obligation or part thereof intended to be satisfied shall be
revived and continued in full force and effect as if said payment had not been
made and each Guarantor shall be primarily liable for such obligation.
In the event that for any reason whatsoever, the Company is
now or hereafter becomes indebted to any Guarantor, such Guarantor agrees that
the amount of such indebtedness and all interest thereon shall at all times be
subordinate as to time of payment and in all other respects to all obligations
of the Company to the Purchasers which are covered by, or referred to in, this
Guaranty Agreement, and that such Guarantor shall not be entitled to enforce or
receive payment thereof until all sums then due and owing to the Purchasers
shall have been paid in full.
Each Guarantor agrees that the liability of such Guarantor in
respect of this Guaranty Agreement shall be immediate and shall not be
contingent upon the exercise or enforcement by the Purchasers of whatever
remedies they may have against the Company or any other guarantor hereunder or
otherwise or the enforcement of any lien or realization upon any security any
Purchaser may at any time possess or have available for its benefit or upon any
action or exercise or enforcement of any right or remedies by any Purchaser
against the Company or any other guarantor hereunder or otherwise.
The guaranty set forth herein is a primary and original
obligation of each Guarantor and is an absolute, unconditional, continuing and
irrevocable guaranty of payment and performance and shall remain in full force
and effect without respect to future changes in conditions, including change of
law or any invalidity or irregularity with respect to the issuance of any
obligations (including, without limitation, the Notes) of the Company to any of
the Purchasers, or with respect to the execution and delivery of any agreement
(including, without limitation, the Amendment and the Note Purchase Agreement)
between the Company and any one or more of the Purchasers.
The Purchasers shall have the right to seek recourse against
each Guarantor to the full extent provided for herein, and against the Company,
to the full extent provided for in the Notes and the Note Purchase Agreement.
No election to proceed in one form of action or proceeding, or against any
party, or on any obligation, shall constitute a waiver of the right of any
Purchaser to proceed in any other form of action or proceeding or against other
parties unless such Purchaser has expressly waived such right in writing.
Specifically, without limiting the generality of the
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foregoing, no action or proceeding by any of the Purchasers against the Company
under any document or instrument evidencing obligations of the Company to any
one or more of the Purchasers shall serve to diminish the liability of any
Guarantor except to the extent that such Purchaser finally and unconditionally
shall have realized payment by such action or proceeding, notwithstanding the
effect of any such action or proceeding upon such Guarantor's right of
subrogation against the Company. Each Guarantor is fully aware of the
financial condition of the Company. Each Guarantor delivers this guaranty
based solely upon its own independent investigation and in no part upon any
representation or statement of any one or more of the Purchasers with respect
thereto. Each Guarantor is in a position to obtain, and hereby assumes full
responsibility for obtaining, any additional information concerning the
financial condition of the Company as such Guarantor may deem material to its
obligations hereunder, and each Guarantor is not relying upon, nor expecting,
the Purchasers to furnish it any information concerning the financial condition
of the Company.
At the request of any of the Purchasers, each Guarantor shall,
from time to time, prepare and deliver to such Purchaser a complete and current
financial statement of such Guarantor setting forth all the assets and
liabilities of such Guarantor (and, to the extent any person other than such
Guarantor has any interest in said assets or any person other than such
Guarantor is jointly liable for any of said obligations, said matters shall be
set forth in their entirety in the financial statements) all signed by such
Guarantor under oath as being true, correct and complete.
3. WARRANTIES, REPRESENTATIONS AND COVENANTS.
3.1 WARRANTIES AND REPRESENTATIONS TRUE AND CORRECT.
Each and every warranty and representation contained in the Bank Credit
Agreement with respect to the Guarantors (whether the Guarantors are referred
to therein specifically as the "Guarantors", as the "Restricted Companies", as
one or more of the "Subsidiaries", or otherwise), is true and correct and each
Guarantor hereby affirms, confirms, gives and makes each and every such
warranty and representation as if set forth herein in full. Each statement
contained in the introductory and recital paragraphs of this Guaranty Agreement
is accurate.
3.2 ADDITIONAL WARRANTIES AND REPRESENTATIONS. Each of
the Guarantors hereby warrants, represents and covenants that:
(a) it is in its best interest and in pursuit of
its partnership or corporate purposes as an integral part of the
business conducted and proposed to be conducted by each Guarantor, and
reasonably necessary and convenient in connection with the conduct of
the business conducted and proposed to be conducted by it, to induce
the Purchasers to enter into the Amendment, which is a condition
precedent to the transactions contemplated by the Bank Credit
Agreement;
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(b) the credit available to such Guarantor under
the Bank Credit Agreement will directly or indirectly inure to its
benefit;
(c) by virtue of the foregoing it is receiving at
least reasonably equivalent consideration from the Purchasers for its
guaranty and the other undertakings and premises contained herein;
(d) it will not be rendered insolvent as a result
of entering into this Agreement;
(e) after giving effect to the transactions
contemplated by this Agreement, the Amendment and the Bank Credit
Agreement, such Guarantor will have assets having a fair saleable
value in excess of the amount required to pay its probable liability
on its existing debts as they have become absolute and matured;
(f) it has, and will have, access to adequate
capital for the conduct of its business;
(g) it has the ability to pay its debts from time
to time incurred in connection therewith as such debts mature; and
(h) it has been advised by the Company, the
Purchasers and the Banks that the Purchasers are unwilling to enter
into the Amendment unless the guaranties and other undertakings
contemplated hereunder are given by it.
3.3 NO AMENDMENT TO BANK CREDIT AGREEMENT; COMPLIANCE
WITH COVENANTS.
(a) The Guarantors and the Company covenant,
individually and together, jointly and severally, that they will not
enter into any amendment, modification, supplement or other alteration
to, or extension of, the Bank Credit Agreement or the Pledge and
Subordination Agreement dated as of July 12, 1996 among Falcon Holding
Group, L.P., Falcon Holding Group, Inc., the Company, the Guarantors
and The First National Bank of Boston, which would materially
interfere with the ability of the Guarantors and the Company to pay
the indebtedness without the written consent of the Purchasers.
(b) Each of the Guarantors will comply, or cause
the Company to comply, with each of the covenants, terms and
requirements contained in Section 7 of the Note Purchase Agreement.
4. SUBORDINATED NATURE OF CERTAIN OBLIGATIONS. The Indebtedness
guarantied by each of the Guarantors hereunder is subordinate and junior to
"Senior Debt" (as defined in the Note Purchase Agreement), as provided in the
Note
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Purchase Agreement. The obligations of the Guarantors hereunder in respect of
the Indebtedness are subordinate and junior in right of payment to Senior Debt
with respect to which such Guarantors are liable, in the same manner and with
the same effect as "Subordinated Debt" (as defined in the Note Purchase
Agreement) is subordinate and junior to Senior Debt as provided in section 10
of the Note Purchase Agreement.
5. DEFAULTS--REMEDIES.
5.1 NATURE OF EVENTS. An "Event of Default" hereunder
shall exist if an "Event of Default" under, and as defined in, the Note
Purchase Agreement, occurs and is continuing.
5.2 DEFAULT REMEDIES. If an Event of Default exists
hereunder, then the Purchasers (as provided in the Note Purchase Agreement)
shall have certain rights, including, without limitation, the right to declare
the entire principal (and in certain cases, premium or Make-Whole Amount) and
all interest accrued on, or payable in respect of, all the Notes then
outstanding to be, and such Notes and interest shall thereupon become, together
with certain other sums as provided in the Note Purchase Agreement, forthwith
due and payable, without any presentment, demand, protest or other notice of
any kind, all of which have been expressly waived by the Company and each
Guarantor. In any such event, the Purchasers shall have immediate recourse to
each Guarantor to the fullest extent set forth herein.
All covenants, conditions, provisions, warranties,
guaranties, indemnities and other undertakings of each Guarantor contained in
this Guaranty Agreement and in any other document to which any of the
Purchasers and any Guarantor are party shall be deemed cumulative to and not in
derogation or substitution of any of the terms, covenants, conditions or
agreements of such Guarantor herein or therein contained.
5.3 OTHER ENFORCEMENT RIGHTS. The Purchasers may proceed
to protect and enforce this Guaranty Agreement by suit or suits or proceedings
in equity, at law or in bankruptcy, and whether for the specific performance of
any covenant or agreement herein contained or in execution or aid of any power
herein granted or for the recovery of judgment for the obligations hereby
guaranteed or for the enforcement of any other proper, legal or equitable
remedy available under applicable law.
5.4 DELAY OR OMISSION; NO WAIVER. No course of dealing
on the part of any of the Purchasers nor any delay or failure on the part of
any of the Purchasers to exercise any right shall impair such right or operate
as a waiver of such right or otherwise prejudice any Purchaser's rights, powers
and remedies. Every right and remedy given by this Guaranty Agreement or by
law to the Purchasers or any of them may be exercised from time to time as
often as may be deemed expedient by any Purchaser.
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5.5 RESTORATION OF RIGHTS AND REMEDIES. If any Purchaser
shall have instituted any proceeding to enforce any right or remedy under this
Guaranty Agreement or under any one or more of the Notes or the Note Purchase
Agreement and such proceeding shall have been discontinued or abandoned for any
reason, or shall have been determined adversely to such Purchaser, then and in
every such case such Purchaser, the Company and each Guarantor shall, subject
to any determination in such proceeding, be restored severally and respectively
to their respective former positions hereunder and thereunder, and thereafter
all rights and remedies of such Purchaser shall continue as though no such
proceeding had been instituted.
5.6 CUMULATIVE REMEDIES. No delay or omission of any of
the Purchasers to exercise any right or power arising from any Default or Event
of Default hereunder shall exhaust or impair any such right or power or prevent
its exercise during the continuance of such Default or Event of Default. No
waiver by any of the Purchasers of any Default or Event of Default hereunder or
under the Note Purchase Agreement, whether such waiver be full or partial,
shall extend to or be taken to affect any subsequent Default or Event of
Default hereunder or under the Note Purchase Agreement, or to impair the rights
resulting therefrom except as may be otherwise expressly provided herein. No
remedy hereunder or under any of the Notes, the Note Purchase Agreement or any
other document to which the Company or any of the Guarantors and any of the
Purchasers are party is intended to be exclusive of any other remedy, but each
and every remedy shall be cumulative and in addition to any and every other
remedy given hereunder or under any of the Notes, the Note Purchase Agreement,
such other documents or otherwise existing; nor shall the giving, taking or
enforcement of any or any additional security, collateral or guaranty for the
payment or performance of the Indebtedness operate to prejudice, waive or
affect the security of this Guaranty Agreement or any rights, powers or
remedies hereunder, nor shall any Purchaser be required to first look to,
enforce or exhaust any such other or additional security, collateral or
guaranties.
6. INTERPRETATION OF THIS AGREEMENT.
6.1 CERTAIN DEFINITIONS. For purposes of this Guaranty
Agreement, the following terms shall have the respective meanings set forth
below or provided for in the section of this Guaranty Agreement referred to
immediately following such term (such definitions to be equally applicable to
both the singular and plural forms of the terms defined).
AGREEMENT -- preamble to this Agreement.
AMENDMENT -- third "whereas" clause hereof.
BANK BORROWERS -- fourth "whereas" clause hereof.
BANK CREDIT AGREEMENT -- fourth "whereas" clause hereof.
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BANKS -- fourth "whereas" clause hereof.
COMPANY -- first "whereas" clause hereof.
DEFAULT -- an event or condition the occurrence of which
would, with the lapse of time or the giving of notice or both, become
an Event of Default.
EVENT OF DEFAULT -- Section 5.1.
EXCLUDED PERSON -- means, at any time, (a) each current or
former general or limited partner of any Guarantor, (b) each current
or former general or limited partner of any Person referred to in
clause (a) of this definition and (c) each partner, director, trustee
or other fiduciary, officer, employee, stockholder or controlling
Person of any Person referred to in clause (a) or (b) of this
definition.
GUARANTY AGREEMENT -- preamble to this Agreement.
GUARANTOR, GUARANTORS -- preamble to this Agreement.
INDEBTEDNESS -- Section 2 hereof.
MAKE-WHOLE AMOUNT -- has the meaning ascribed to it in the
Note Purchase Agreement.
NOTE PURCHASE AGREEMENT -- third "whereas" clause hereof.
NOTES -- first "whereas" clause hereof.
OLD NOTE PURCHASE AGREEMENT -- first "whereas" clause hereof.
PERSON -- means any individual, firm, partnership, joint
venture, corporation, association, business enterprise, trust,
Governmental Body or other entity, whether acting in an individual,
fiduciary or other capacity.
PURCHASERS -- preamble to this Agreement.
SENIOR DEBT -- Section 4 hereof.
SUBORDINATED DEBT -- Section 4 hereof.
6.2 HEADINGS, ETC. All headings and captions preceding
the text of the several sections hereof are intended solely for convenience of
reference and shall not constitute a part of this Guaranty Agreement nor shall
they affect its meaning, construction or effect. Each covenant contained in
this Guaranty Agreement shall be construed (absent an express contrary
provision therein) as being independent of each and every other covenant
contained herein and compliance with any one covenant shall not (absent such
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an express contrary provision) be deemed to excuse compliance with any and all
other covenants.
6.3 DIRECTLY OR INDIRECTLY. Where any provision in this
Guaranty Agreement refers to action to be taken by any person, or which such
person is prohibited from taking, such provision shall be applicable whether
such action is taken directly or indirectly by such person.
7. MISCELLANEOUS.
7.1 NOTICES. Any notice or other communication required
or desired to be served, given or delivered hereunder shall be in writing, and
shall be deemed to have been validly served, given or delivered upon deposit in
the United States mails, as registered or certified mail (return receipt
requested), with proper postage prepaid and addressed to the party to be
notified as follows:
(a) if to the Guarantors, at the addresses in
respect thereof set forth on Exhibit A attached hereto; and
(b) if to the Purchasers or any of them, at:
The Mutual Life Insurance Company of New York
MONY Life Insurance Company of America
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: MONY Capital Management Unit
and
Aegon USA Investment Management, Inc.
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxx Xxxxxxxxxxx
or to such other address as any Guarantor or any Purchaser may hereafter
designate for itself by written notice to such other person in the manner
herein prescribed.
7.2 SURVIVAL; BENEFIT OF GUARANTY. All warranties,
representations and covenants made by each Guarantor herein or on any
certificate or other document or instrument delivered by it or on its behalf
under this Guaranty Agreement or the Note Purchase Agreement shall be
considered to have been relied upon by the Purchasers and shall survive the
delivery to the Purchasers of the Notes and the payment thereof regardless of
any investigation made by the Purchasers or on their behalf. All statements in
any such certificate or other instrument shall constitute warranties and
representations by each Guarantor hereunder. This Guaranty Agreement shall be
binding upon each Guarantor and its successors and assigns and inure to the
benefit of and be enforceable by the Purchasers and their respective successors
and assigns. No provision of this Guaranty Agreement shall be waived, amended,
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modified or supplemented except by a written instrument consented to by the
party or parties against whom such waiver, amendment, modification or
supplement would be sought to be enforced.
Each Guarantor agrees to take such action as may be
requested by any of the Purchasers in connection with the transfer of the Notes
of any Purchaser in accordance with the requirements of the Note Purchase
Agreement in connection with providing an executed copy of this Guaranty
Agreement to the new holder or holders of such Notes, it being the intention of
this provision that no additional obligations of any Guarantor shall thereby be
created but rather that the existing obligations of the Guarantors shall be
more particularly stated in respect of one or more future holders of Notes that
are the subject of this Guaranty Agreement.
7.3 GOVERNING LAW. THIS GUARANTY AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
7.4 COUNTERPARTS. This Guaranty Agreement may be
executed and delivered in any number of counterparts, each of such counterparts
constituting an original but all together one and the same Agreement.
7.5 MISCELLANEOUS. Each Guarantor (to the fullest extent
that it may lawfully do so) expressly waives any claim of any nature arising
out of any right of indemnity, contribution, reimbursement or any similar right
in respect of any payment made under this Guaranty Agreement or in connection
with this Guaranty Agreement, or any claim or subrogation arising in connection
with respect to any payment made under this Guaranty Agreement, against the
Company or the estate of the Company (including liens on the property of the
Company or the estate of the Company), in each case if, and for so long as, the
Company is the subject of any proceeding brought under Title 11 of the United
States Code, or any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or liquidation law of any jurisdiction,
whether now or hereafter in effect, and further agrees that it will not file
any claims against the Company or the estate of the Company in the course of
such proceeding in respect of the rights referred to in this paragraph, and
further agrees that the Purchasers may specifically enforce the provisions of
this paragraph.
7.6 LIMITED RECOURSE AGAINST CERTAIN PERSONS.
(a) The remedies of the Purchasers including, without
limitation, any remedy which could be exercised upon the occurrence of
an Event of Default, shall be limited to the extent that no Excluded
Person shall have any personal liability hereunder as a general
partner or limited partner of any Guarantor with respect to the
indebtedness as guarantied hereunder, and in no event shall any
Excluded Person be
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personally liable as a general partner or limited partner for any
deficiency judgment in respect of any such obligation; provided,
however, that the provisions of this Section 7.6 shall not impair the
ability of any Purchaser (i) from proceeding against any Guarantor,
(ii) from realizing on the assets of any Guarantor or (iii) from
proceeding against any general partner of any Guarantor with respect
to actions such general partner caused such Guarantor to take
involving such Guarantor's obligations under this Agreement which
would constitute fraud, gross negligence or willful misconduct by such
general partner
(b) The Purchasers acknowledge and agree that Excluded
Persons are express third party beneficiaries of this Section 7.6, and
that the provisions hereof may be enforced by any Excluded Person
directly against any Purchaser.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Restated Guaranty Agreement to be executed by their duly authorized
representatives as of the date first hereinabove mentioned.
GUARANTORS:
FALCON CABLEVISION, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON CABLE MEDIA, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY CABLE, L.P.
FALCON COMMUNITY VENTURES I LIMITED
PARTNERSHIP
FALCON TELECOM, L.P.
FALCON CABLE SYSTEMS COMPANY II, L.P.
FALCON INVESTORS GROUP, LTD., A
CALIFORNIA LIMITED PARTNERSHIP
FALCON TELECABLE INVESTORS GROUP, A
CALIFORNIA LIMITED PARTNERSHIP
FALCON MEDIA INVESTORS GROUP, A
CALIFORNIA LIMITED PARTNERSHIP
FALCON COMMUNITY INVESTORS, L.P.
BY: FALCON HOLDING GROUP, INC., AS
GENERAL PARTNER, OR GENERAL
PARTNER OF THE GENERAL PARTNER,
OF EACH OF THE FOREGOING
By_____________________________
Name_________________________
Title________________________
FALCON FIRST, INC.
By_________________________________
Name_____________________________
Title____________________________
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ATHENS CABLEVISION, INC.
AUSABLE CABLE TV, INC.
CEDAR BLUFF CABLEVISION, INC.
XXXXXX CABLEVISION, INC.
EASTERN MISSISSIPPI CABLEVISION, INC.
FALCON FIRST CABLE OF NEW YORK, INC.
FALCON FIRST CABLE OF THE SOUTHEAST,
INC.
FALCON FIRST HOLDINGS, INC.
FF CABLE HOLDINGS, INC.
LAUDERDALE CABLEVISION, INC.
MULTIVISION NORTHEAST, INC.
MULTIVISION OF COMMERCE, INC.
PLATTSBURG CABLEVISION, INC.
SCOTTSBORO CABLEVISION, INC.
SCOTTSBORO TV CABLE, INC.
By_________________________________
As an authorized officer of each
of the foregoing corporations
ACKNOWLEDGED BY THE COMPANY:
FALCON TELECABLE, A CALIFORNIA
LIMITED PARTNERSHIP
BY: FALCON HOLDING GROUP, INC., AS
GENERAL PARTNER, OR GENERAL
PARTNER OF THE GENERAL PARTNER
By_____________________________
Name_________________________
Title________________________
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ACKNOWLEDGED AND ACCEPTED:
AUSA LIFE INSURANCE COMPANY, INC.
By______________________________
Name__________________________
Title_________________________
MONY LIFE INSURANCE COMPANY OF AMERICA
By______________________________
Name__________________________
Title_________________________
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EXHIBIT A
ADDRESSES OF GUARANTORS
Communications to each Guarantor should be addressed as follows:
[Name of Guarantor]
00000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx Xxxxx
Xxx Xxxxxxx, XX 00000
