EXHIBIT 10.33
JOINDER AGREEMENT
TO SECOND RESTATED SUBORDINATION AGREEMENT AND
TO SECOND RESTATED GUARANTY AGREEMENT
This Joinder Agreement (this "Agreement") is dated as of September 30,
1998 among Falcon Video Communications, L.P., a Delaware limited partnership
("Falcon Video"), Falcon Video Communications Investors, L.P., a California
limited partnership ("Falcon Video Investors"), Falcon Communications, L.P., a
California limited partnership ("NewFalcon"), Falcon Cable Communications, LLC,
a Delaware limited liability company ("NewFalcon II"), and AUER & Co. and J.
ROMEO & Co. (the "Purchasers").
The parties 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 (the "Note Purchase Agreement"), including
pursuant to the Consent and Amendment Agreement dated as of June 30, 1998 (the
"June 1998 Amendment"). Reference is also made to a Second Restated
Subordination Agreement dated as of July 12, 1996 among the Purchasers, Falcon
Holding Group, L.P. ("Holding, L.P."), Falcon Holding Group, Inc. ("Holding,
Inc.") and certain subsidiaries of Holding, L.P. and Holding, Inc. listed as
signatories thereto, as heretofore amended and modified (the "Subordination
Agreement"). Reference is also made to a Second Restated Guaranty Agreement
dated as of July 12, 1996 among the Purchasers and certain subsidiaries of
Holding, L.P. and Holding, Inc. listed as signatories thereto, as heretofore
amended and modified (the "Guaranty 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. Joinder. Pursuant to Section 7.21 of the Note Purchase Agreement
and Sections 4.1 and 4.2 of the June 1998 Amendment:
2.1 Joinder of Falcon Video. Falcon Video shall join in and
become party to the Subordination Agreement as an Obligor thereunder and shall
join in and become a party to the Guaranty Agreement as a Guarantor thereunder.
2.2 Joinder of Falcon Video Investors. Falcon Video Investors
shall join in and become party to the Subordination Agreement as an Obligor
thereunder and shall join in and become party to the Guaranty Agreement as a
Guarantor thereunder.
2.3 Joinder of NewFalcon. NewFalcon shall join in and become
party to the Subordination Agreement as a Parent Company and a Holder of
Subordinated Indebtedness thereunder.
2.4 Joinder of NewFalcon II. NewFalcon II shall join in and
become party to the Subordination Agreement as an Obligor thereunder and shall
join in and become party to the Guaranty Agreement as a Guarantor thereunder.
3. Additional Agreements.
3.1 The effectiveness of the joinders described in Section 2
above shall be subject to the satisfaction of the following conditions. The date
on which and the time at which all such conditions are met shall be referred to
in this Section 3 as the "Joinder Effective Date" and the "Joinder Effective
Time" respectively.
3.1.1 In the case of the joinders described in Sections 2.1
above, the TCI Closing shall have occurred, the Financing Debt of Falcon Video
shall have been discharged as contemplated in Section 5.3.1 of the Bank Credit
Agreement, and Falcon Video shall have become a Guarantor under the Bank Credit
Agreement.
3.1.2 In the case of the joinders described in Sections 2.2
above, the TCI Closing shall have occurred, the Financing Debt of Falcon Video
shall have been discharged as contemplated in Section 5.3.1 of the Bank Credit
Agreement, and Falcon Video Investors shall have become a Guarantor under the
Bank Credit Agreement.
3.1.3 In the case of the joinders described in Sections 2.3
above, the TCI Closing shall have occurred.
3.1.4 In the case of the joinders described in Sections 2.4
above, the TCI Closing shall have occurred and NewFalcon II shall have become a
Borrower under the Bank Credit Agreement.
3.1.5. All representations and warranties set forth in
Section 8 of the Bank Credit Agreement shall be true and correct as of the
Joinder Effective Date and the Joinder Effective Time, and by signing below each
of Falcon Video, Falcon Video Investors, NewFalcon and NewFalcon II 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 Agreement and consummating the transactions
contemplated herein.
3.1.6. All proceedings taken in connection with this
Agreement 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 supplemented hereby, the Note Purchase Agreement,
the Subordination Agreement, and the Guaranty Agreement remain unchanged and, as
supplemented hereby, each such Agreement remains in full force and effect.
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3.3. This Agreement 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 Joinder Agreement to be
executed and delivered by its duly authorized officer as of the date first above
written.
FALCON VIDEO COMMUNICATIONS, L.P.
By: FALCON VIDEO COMMUNICATIONS
INVESTORS, L.P., its managing general
partner
By: FALCON HOLDING GROUP, L.P., its
general partner
By: FALCON HOLDING GROUP, INC., its
general partner
By: /s/ Michael K. Menerey
----------------------
Michael K. Menerey, Executive Vice
President and Chief Financial Officer
FALCON VIDEO COMMUNICATIONS INVESTORS, L.P.
By: FALCON HOLDING GROUP, L.P., its
general partner
By: FALCON HOLDING GROUP, INC., its
general partner
By: /s/ Michael K. Menerey
----------------------
Michael K. Menerey, Executive Vice
President and Chief Financial Officer
FALCON COMMUNICATIONS, L.P.
By: FALCON HOLDING GROUP, L.P., its
managing partner
By: FALCON HOLDING GROUP, INC., its
general partner
By: /s/ Michael K. Menerey
----------------------
Michael K. Menerey, Executive Vice
President and Chief Financial Officer
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FALCON CABLE COMMUNICATIONS, LLC
By: FALCON COMMUNICATIONS, L.P., its sole
member
By: FALCON HOLDING GROUP, L.P., its
managing general partner
By: FALCON HOLDING GROUP, INC., its
general partner
By: /s/ Michael K. Menerey
----------------------
Michael K. Menerey, Executive Vice
President and Chief Financial Officer
AUER & Co.
By:
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Title:
J. ROMEO & CO.
By:
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Title:
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