EXHIBIT 10.32
NOTE PURCHASE AND EXCHANGE AGREEMENT
AMENDMENT AGREEMENT
This Amendment Agreement (this "Amendment") is dated as of September
30, 1998 among Falcon Telecable, a California Limited Partnership (the
"Company") and AUER & Co. and J. ROMEO & Co., (the "Purchasers").
The Company and the Purchasers agree as follows:
1. Reference to Note Purchase and Exchange Agreement. Reference is
made to a Note Purchase and Exchange Agreement dated as of October 21, 1991 as
heretofore amended and modified, including pursuant to the Consent and Amendment
Agreement dated as of June 30, 1998 (the "Note Purchase Agreement").
Capitalized terms defined in the Note Purchase Agreement that are not defined
herein shall have the meanings ascribed to them in the Note Purchase Agreement.
2. Amendments to Note Purchase Agreement. Section 7.19 of the Note
Purchase Agreement is hereby amended by deleting Section 7.19 in its present
form in its entirety and substituting in its place a new Section 7.19, which
reads in its entirety 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 Section 7.15) as in effect on the Amendment Effective 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, Agents and similar persons shall be deemed, for purposes of
this Agreement, to be holders of the Notes.
For purposes of this Agreement, the incorporated provisions of
Sections 7.5.1, 7.5.2, 7.5.3 and 7.5.4 of the Bank Credit Agreement
(as defined in Section 11.1 of this Agreement) are amended to read as
follows and shall not be subject to amendment or modification without
the consent of the holders of the Notes:
7.5.1. Consolidated Total Debt to Consolidated Annualized
Operating Cash Flow. Consolidated Total Debt shall not as of the end of
any fiscal quarter exceed the percentage indicated in the table below
of Consolidated Annualized Operating Cash Flow for such fiscal quarter:
Percentage in Percentage in
Effect Prior to Effect After
Date TCI Closing TCI Closing
-------------------------- ------------------- ---------------
September 30, 1998 650% 700%
through March 31, 2001
7.5.2 Consolidated Annualized Operating Cash Flow to
Consolidated Cash Interest Expense. On the last day of each fiscal
quarter of the Restricted Companies, Consolidated Annualized Operating
Cash Flow for the three-month period then ending shall exceed the
percentage indicated below of Consolidated Cash Interest Expense for
such three-month period: (a) from September 30, 1998 through December
31, 2000, 120%, and (b) from January 1, 2001 through March 31, 2001,
130%.
7.5.3. Consolidated Annualized Operating Cash Flow to
Consolidated Pro Forma Debt Service. On the last day of each fiscal
quarter of the Restricted Companies, Consolidated Annualized Operating
Cash Flow for the three-month period then ending shall exceed 100% of
Consolidated Pro Forma Debt Service for the 12-month period beginning
immediately after such date."
7.5.4 Capital Expenditures. During each year indicated below,
Capital Expenditures of the Restricted Companies shall not exceed the
total of:
(a) the applicable amount set forth opposite such year
in the table below plus
(b) for each year after 1998, the amount by which actual
Capital Expenditures in the preceding year are less
than the applicable amount set forth for such
preceding year in such table.
Amount if the TCI Amount if TCI
Closing Occurs Closing Does Not
During Such Occur During Such
Calendar Year Calendar Year Calendar Year
---------------------- -------------------- --------------------
1998 $150,000,000 $120,000,000
1999 $170,000,000 $120,000,000
2000 $185,000,000 $130,000,000
2001 $130,000,000 $ 85,000,000
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3. Additional Agreements.
3.1 The following are conditions precedent to the
effectiveness of this Amendment. The date on which all such conditions are met
(or waived by the Purchasers) shall be referred to in this Section 3 as the
"Amendment Effective Date."
3.1.1. All representations and warranties set forth in
Section 8 of the Bank Credit Agreement shall be true and correct as of the
Amendment Effective Date, and by signing below each of the Restricted Companies
(under the Bank Credit Agreement) confirms that such representations and
warranties are true and correct as of the date hereof and 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 Amendment
and consummating the transactions contemplated herein.
3.1.2. All proceedings taken in connection with this
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 papers as they may
reasonably request in connection therewith, all in form and substance
satisfactory to the Purchasers and their special counsel.
3.2. Except as amended hereby, the Note Purchase Agreement
remains unchanged and, as amended hereby, the Note Purchase Agreement remains in
full force and effect. The Company hereby reaffirms all of is obligations and
undertakings under the Note Purchase Agreement as amended hereby, and the Notes,
as amended hereby. All references to the Note Purchase Agreement, the 11.56%
Series A Subordinated Notes and the 11.56% Series B Subordinated Notes shall
mean the Note Purchase Agreement and such Notes as amended to date and by this
Amendment.
3.3. This 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 INTENTIONAL BLANK;
NEXT PAGE IS SIGNATURE PAGE]
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Each of the undersigned has caused this Amendment Agreement to be
executed and delivered by its duly authorized officer as of the date first above
written.
FALCON TELECABLE, A CALIFORNIA
LIMITED PARTNERSHIP
By: FALCON TELECABLE INVESTORS GROUP, LTD.,
a California limited partnership, its
managing general partner
By: FALCON HOLDING GROUP, INC., a California
corporation, its managing general
partner
By: /s/ Michael K. Menerey
----------------------
Michael K. Menerey, Executive Vice
President and Chief Financial Officer
AUER & Co.
By:
----------------------
Title:
J. ROMEO & CO.
By:
----------------------
Title:
ACKNOWLEDGED AND CONFIRMED
FOR PURPOSES OF SECTION 3.1.1 HEREOF
FALCON CABLE MEDIA, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON CABLE SYSTEMS COMPANY II,
L.P.
FALCON CABLEVISION, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY CABLE, L.P.
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FALCON COMMUNITY VENTURES I
LIMITED PARTNERSHIP
FALCON TELECABLE, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY INVESTORS, L.P.
FALCON INVESTORS GROUP, LTD., A
CALIFORNIA LIMITED PARTNERSHIP
FALCON MEDIA INVESTORS GROUP, A
CALIFORNIA LIMITED PARTNERSHIP
FALCON TELECABLE INVESTORS GROUP,
A CALIFORNIA LIMITED PARTNERSHIP
FALCON TELECOM, L.P.
By: FALCON HOLDING GROUP, INC.,
as general partner, or general partner of the
general partner of each of the foregoing
companies
By: /s/ Michael K. Menerey
----------------------
Michael K. Menerey, Executive Vice
President and Chief Financial Officer
FALCON FIRST, INC.
FALCON FIRST CABLE OF THE SOUTHEAST, INC.
FALCON FIRST HOLDINGS, INC.
FF CABLE HOLDING, INC.
FALCON FIRST CABLE OF NEW YORK, INC.
PLATTSBURG CABLEVISION, INC.
AUSABLE CABLE TV, INC.
CEDAR BLUFF CABLEVISION, INC.
EASTERN MISSISSIPPI CABLEVISION, INC.
SCOTTSBORO TV CABLE, INC.
LAUDERDALE CABLEVISION, INC.
SCOTTSBORO CABLEVISION, INC.
ATHENS CABLEVISION, INC.
DALTON CABLEVISION, INC.
MULTIVISION OF COMMERCE, INC.
MULTIVISION NORTHEAST, INC.
By: /s/ Michael K. Menerey
----------------------
Michael K. Menerey, Executive Vice
President and Chief Financial Officer
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