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Exhibit 10.43
FALCON HOLDING GROUP, L.P.
FALCON HOLDING GROUP, INC.
SECOND RESTATED
SUBORDINATION AGREEMENT
DATED AS OF JULY 12, 1996
AUSA LIFE INSURANCE COMPANY, INC.
MONY LIFE INSURANCE COMPANY OF AMERICA
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TABLE OF CONTENTS
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1. Definitions, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Reference to Agreements; Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1.1 "Consolidated Holding L.P. Annualized Operating Cash Flow" . . . . . . . . . . . . . . . 2
1.1.2 "Consolidated Holding, L.P. Net Income" . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.1.3 "Consolidated Holding, L.P. Operating Cash Flow" . . . . . . . . . . . . . . . . . . . . 2
1.1.4 "Consolidated Holding, L.P. Total Debt" . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1.5 "Financial Officer" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1.6 "Holder of Subordinated Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1.7 "Obligor" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1.8 "Parent Companies" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1.9 "Reorganization" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1.1.10 "Senior Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1.11 "Subordinated Indebtedness" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.1.12 "Subsidiaries" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Subordination Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.2 Restricted Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Reorganization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Specific Powers in Reorganization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.5 Payments Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.6 No Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.7 Restrictions on Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.8 Restrictions on Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.9 Payment in Full . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.10 Effect of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.11 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.12 Legend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
2.13 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2.14 Subordination by the Purchasers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.1 Organization and Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.2 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
3.3 Enforceability; No Legal Obstacle to Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4. General Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.1 Preservation of Corporate Existence, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.2 Taxes and Other Charges; Accounts Payable. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.2.1 Taxes and Other Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.2.2 Accounts Payable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3 Financial Statements and Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3.1 Annual Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.3.2 Quarterly Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.3.3 Other Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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4.3.4 Notice of Material Litigation; Notice of Defaults, etc. . . . . . . . . . . . . . . . . . 12
4.4 Merger and Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.5 Restrictions on Financing Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
4.6 No Cash Payments on Senior Subordinated Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.7 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.8 Senior Subordinated Debt Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
4.9 Certain Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5. Information Regarding the Obligors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6. Continuing Agreement, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7. Waivers; Powers, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.1 Specific Performance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.2 Consent to Note Agreement and Guaranty Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.3 Power to Modify, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
7.4 No Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8. Transfers; Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.1 Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
8.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
9. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
10. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
11. Limited Recourse Against Partners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
12. Venue; Service of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
13. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
14. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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FALCON HOLDING GROUP, L.P.
FALCON HOLDING GROUP, INC.
SECOND RESTATED
SUBORDINATION AGREEMENT
This Second Restated Subordination Agreement (the "Agreement"), dated
as of July 12, 1996, is among Falcon Holding Group, L.P., a Delaware limited
partnership ("Holding, L.P."), Falcon Holding Group, Inc., a California
corporation ("Holding, Inc."), certain Subsidiaries (as defined herein) of
Holding, L.P. and Holding, Inc. set forth on the signature pages hereof and
AUSA Life Insurance Company, Inc. and MONY Life Insurance Company of America
(the "Purchasers").
WHEREAS, certain of the parties hereto entered into a Subordination
Agreement dated as of March 26, 1993 (the "Initial Agreement") and the Initial
Agreement was restated as of December 28, 1995 (the "First Restatement"); and
WHEREAS, the parties desire to enter into this Second Restated
Subordination Agreement to reflect that certain Subsidiaries of Holding, L.P.
have entered into a new Bank Credit Agreement and that additional amendments
have been entered into with respect to the Telecable Note Agreement (as defined
below).
NOW, THEREFORE, the parties agree that the Initial Agreement as
restated by the First Restatement is hereby amended and restated in its
entirety as follows:
1. DEFINITIONS, ETC.
1.1 REFERENCE TO AGREEMENTS; DEFINITIONS. Reference is made to:
(a) the Note Purchase and Exchange Agreement dated as of
October 21, 1991 among Falcon Telecable ("Telecable"), a California limited
partnership, The Mutual Life Insurance Company of New York and MONY Life
Insurance Company of America, which agreement has been heretofore amended,
including a Fourth Amendment to Note Purchase and Exchange Agreement dated as
of July 12, 1996 (as so amended, the "Note Agreement"); and
(b) The Second Restated Guaranty Agreement (the "Guaranty
Agreement"), dated as of July 12, 1996 and made by the Guarantors set forth
therein. The Guaranty Agreement guarantees the obligations arising under the
Note Agreement.
The Purchasers hold all of the Notes issued and outstanding
under the Note Agreement. The obligations under the Note Agreement and the
Guaranty Agreement are referred to herein as the "Obligations".
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Except as the context otherwise explicitly requires, (i) the
capitalized term "Section" refers to sections of this Agreement, (ii)
references to a particular Section shall include all subsections thereof and
(iii) the word "including" shall be construed as "including without
limitation". Capitalized terms defined in the Note Agreement are used herein
with the meanings so defined. Certain other capitalized terms used in this
Agreement shall have the meanings specified below:
1.1.1 "CONSOLIDATED HOLDING L.P. ANNUALIZED OPERATING CASH
FLOW" means the product of Consolidated Holding, L.P. Operating Cash Flow
multiplied by four (4).
1.1.2 "CONSOLIDATED HOLDING, L.P. NET INCOME" means, for
any period, the net income (or loss) of Holding, L.P. and its Subsidiaries
determined in accordance with GAAP on a Consolidated basis (giving pro forma
effect to the results of operations for such period of any Person or other
business acquired by Holding, L.P. and its Subsidiaries; provided, however,
that Consolidated Holding, L.P. Net Income shall not include:
(a) the income (or loss) of any Person
(other than a Wholly Owned Subsidiary (as defined in the Bank Credit Agreement)
of Holding, L.P. and Holding, Inc.) in which any of Holding, L.P. and its
Subsidiaries has an ownership interest; provided, however, that Consolidated
Holding, L.P. Net Income shall be reduced by the aggregate amount of all
investments, regardless of the form thereof, made by any of Holding, L.P. or
its Subsidiaries in such Person for the purpose of funding any deficit or loss
of such Person;
(b) all amounts included in computing
such net income (or loss) in respect of the write-up of any asset or the
retirement of any indebtedness at less than face value after December 31, 1995;
(c) extraordinary and nonrecurring gains or losses;
(d) the income of any Subsidiary of
Holding, L.P. (other than a Restricted Company) to the extent the payment of
such income in the form of a Distribution or repayment of Indebtedness to
Holding, L.P. is not permitted, whether on account of any Charter or By-law
restriction, any agreement, instrument, deed or lease or any law, statute,
judgment, decree or governmental order, rule or regulation applicable to such
Subsidiary or otherwise; and
(e) any after tax gains or losses
attributable to the retained surplus assets of any Plan.
1.1.3 "CONSOLIDATED HOLDING, L.P. OPERATING CASH FLOW"
means for the period of three consecutive months then most recently ended, the
total of (a) Consolidated Holding, L.P. Net
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Income plus (b) all amounts deducted in computing such Consolidated Holding,
L.P. Net Income in respect of:
(i) depreciation, amortization and other
charges that are not expected to be paid in cash;
(ii) interest on Consolidated Holding,
L.P. Total Debt (including payments in the nature of interest under
Capitalized Leases and Interest Rate Protection Agreements);
(iii) federal (but not state or local) taxes
based upon or measured by income; and
(iv) other non-cash charges;
minus (c) revenues of Holding, L.P. that are not expected to be
received in cash within the next twelve months to the extent included
in calculating Consolidated Holding, L.P. Net Income.
1.1.4 "CONSOLIDATED HOLDING, L.P. TOTAL DEBT" means, at any
date, all Financing Debt of Holding, L.P. and its Subsidiaries on a
Consolidated basis minus the lesser of (a) cash and Cash Equivalents of
Holding, L.P. and its Subsidiaries (as defined in the Bank Credit Agreement) on
a Consolidated basis in accordance with GAAP or (b) $2,000,000 and minus
convertible debentures originally issued by Holding, Inc. (to the extent
assumed by Holding, L.P.) to ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ in an amount not exceeding
$5,000,000.
1.1.5 "FINANCIAL OFFICER" means the chief financial
officer, treasurer or corporate controller of Holding, Inc. in its capacity as
the managing general partner of each Investor Group Company, in such Investor
Group Company's capacity as the managing general partner of a borrower under
the Bank Credit Agreement (or other specified Person) or a vice president whose
primary responsibility is for the financial affairs of Holding, Inc. (or other
specified Person) in such capacity, all of whose incumbency and signatures have
been certified to the Administrative Agent by an appropriate attesting officer
of Holding, Inc. (or other specified Person).
1.1.6 "HOLDER OF SUBORDINATED INDEBTEDNESS" means: (a)
Holding, L.P., (b) Holding, Inc. and (c) each Person becoming a party to this
Agreement pursuant to Section 8.1.
1.1.7 "OBLIGOR" means Telecable and each other Person
obligated to the Purchasers under the Guaranty Agreement.
1.1.8 "PARENT COMPANIES" means each of Holding, L.P. and
Holding, Inc.
1.1.9 "REORGANIZATION" means any voluntary or involuntary
dissolution, winding-up, total or partial liquidation
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or reorganization or restructuring, whether by judicial proceedings or
otherwise, or bankruptcy, insolvency, receivership or other statutory or common
law proceedings or arrangements, including any proceeding under Title 11 of the
Bankruptcy Code or any similar law of any other jurisdiction, involving the
Obligors or any guarantor of the Subordinated Indebtedness or any of their
present or future Subsidiaries (as defined in the Bank Credit Agreement) or the
readjustment of the respective liabilities of the Obligors or any such other
Person or any assignment for the benefit of creditors or any marshaling of the
assets or liabilities of the Obligors or any such other Person.
1.1.10 "SENIOR INDEBTEDNESS" means: (a) the principal of,
and premium, if any, on any indebtedness of the Obligors to any Purchaser under
the Note Agreement or the Guaranty Agreement, including the indebtedness
evidenced by the Notes; (b) all renewals, extensions, restructuring,
refinancings and refundings of Senior Indebtedness as defined in clause (a)
above; (c) all fees, costs, expenses, indemnities and other obligations payable
under Note Agreement or the Guaranty Agreement, or otherwise with respect to
Senior Indebtedness as defined in clauses (a) and (b) above, accrued to the
date of payment, whether before or after the institution by or against the
Obligors of proceedings under Title 11 of the Bankruptcy Code; and (d) all
interest arising on or with respect to Senior indebtedness as defined in
clauses (a), (b) and (c) above accrued to the date of payment, whether before
or after the institution by or against the Obligors of a Reorganization.
1.1.11 "SUBORDINATED INDEBTEDNESS" means: (a) the principal
of and premium, if any, and interest, fees, expenses, indemnities and other
obligations arising on or with respect to all indebtedness of any Obligor to
any Parent Company, including indebtedness owed by the Borrowers under the Bank
Credit Agreement to Holding, L.P. described in Section 7.6.14 of the Bank
Credit Agreement, (b) all obligations of any Obligor to pay management fees to
any Parent Company or to reimburse any Parent Company for expenses or services,
(c) all obligations of any Obligor to issue securities upon conversion of or in
exchange for any Subordinated Indebtedness as defined in clauses (a) or (b)
above, (d) other investments by any Parent Company in the Obligors with
required redemption, repurchase, interest or dividend obligations of the
Obligors and (e) any and all claims, damages and liabilities of any nature
whatsoever arising hereunder or with respect to any Subordinated Indebtedness
as defined in clauses (a), (b), (c) and (d) above which the Holder of
Subordinated Indebtedness may now or hereafter have against any Obligors.
1.1.12 "SUBSIDIARIES" means each of Falcon Cable Media, a
California limited partnership, Falcon Cablevision, a California limited
partnership, Falcon Community Cable, L.P., Falcon Community Ventures I Limited
Partnership, Falcon Telecable, a California limited partnership, Falcon Cable
Systems Company II, L.P., a California limited partnership, Falcon Telecom,
L.P., a California limited partnership, Falcon Community Investors, L.P.,
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Falcon Investors Group, Ltd., a California limited partnership, Falcon Media
Investors Group, a California limited partnership, Falcon Telecable Investors
Group, a California limited partnership, Athens Cablevision, Inc., Ausable
Cable TV, Inc., Cedar Bluff Cablevision, Inc., ▇▇▇▇▇▇ Cablevision, Inc.,
Eastern Mississippi Cablevision, Inc., Falcon First, 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. and Scottsboro TV Cable, Inc.
2. SUBORDINATION COVENANTS. The Obligors and each Holder of Subordinated
Indebtedness covenants that, until all of the Senior Indebtedness is paid in
full, each will comply with such of the following provisions as are applicable
to it:
2.1 SUBORDINATION. To the extent and in the manner provided in
this Agreement, the payment of any Subordinated Indebtedness shall be expressly
subordinated and junior in right of payment to the prior payment in full of all
Senior Indebtedness, and the Subordinated Indebtedness is hereby subordinated
as a claim against the Obligors, any guarantor of the Subordinated Indebtedness
or any of their respective assets to the prior payment in full of the Senior
Indebtedness, in each case whether such claim be (a) in the ordinary course of
business or (b) in the event of any Reorganization.
2.2 RESTRICTED PAYMENTS. The Obligors will not make, and no
Holder of Subordinated Indebtedness will receive, any payment of any
Subordinated Indebtedness, whether in cash, securities or other property or by
way of conversion, exchange or set-off or otherwise, and no such payment shall
become due; provided, however, so long as immediately before and after giving
effect thereto no Event of Default exists, that the Obligors may make
Distributions permitted by Section 7.10 of the Bank Credit Agreement (as
incorporated into the Note Agreements) to any Holder of Subordinated
Indebtedness.
2.3 REORGANIZATION. During the existence of any Reorganization,
all Senior Indebtedness shall first be paid in full before any payment is made
on account of any Subordinated Indebtedness, and in any such proceedings
seeking to effect a Reorganization any payment or distribution of any kind or
character, whether in cash or property or securities, which may be payable or
deliverable in respect of any Subordinated Indebtedness shall be paid or
delivered directly to the Purchasers for application to payment of the Senior
Indebtedness, until all such Senior Indebtedness shall have been paid in full.
2.4 SPECIFIC POWERS IN REORGANIZATION. In any proceedings with
respect to a Reorganization, until all Senior Indebtedness shall have been paid
in full, each Holder of Subordinated Indebtedness irrevocably authorizes the
Purchasers:
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(a) To prove and enforce any claims on the Subordinated
Indebtedness owed by any Obligors to any Holder or Subordinated Indebtedness
either in the Purchasers' name or in the name of such Holder of Subordinated
Indebtedness as the attorney-in-fact of such Holder of Subordinated
Indebtedness;
(b) to accept and receive for any payment or distribution
made with respect to any such Subordinated Indebtedness and to apply such
payment or distribution to the payment of the Senior Indebtedness;
(c) To vote claims comprising any Subordinated
Indebtedness and to accept or reject on behalf of such Holder of Subordinated
Indebtedness any plan proposed in connection with any Reorganization; and
(d) To take any and all action and to execute any and all
instruments reasonably necessary to effectuate the foregoing either in the
Purchasers' name or in the name of such Holder of Subordinated Indebtedness as
the attorney-in-fact of such Holder of Subordinated Indebtedness.
2.5 PAYMENTS HELD IN TRUST. If, notwithstanding the foregoing,
any payment or distribution of the assets of the Obligors of any kind or
character in respect of the Subordinated Indebtedness (other than payments
permitted by Section 2.2) shall be received, by set-off or otherwise, by any
Holder of Subordinated Indebtedness before all Senior Indebtedness then
outstanding is paid in full, such payment or distribution and the amount of any
such set-off shall be held in trust by such Holder of Subordinated Indebtedness
and promptly paid over to the Purchasers (who shall have the right to convert
any such assets into cash in a commercially reasonable manner) for application
(including the application of such cash and cash proceeds) to the payment of
all Senior Indebtedness remaining unpaid until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
2.6 NO SECURITY. The Obligors shall not give, and no Holder of
Subordinated Indebtedness shall demand or receive, any security, direct or
indirect, for any Subordinated Indebtedness.
2.7 RESTRICTIONS ON REMEDIES. No Holder of Subordinated
Indebtedness shall, without the Purchasers' prior written consent, accelerate
the maturity of, or institute proceedings to enforce, any Subordinated
Indebtedness notwithstanding any provision to the contrary contained in any
Subordinated Indebtedness or in any agreement or instrument relating thereto.
Without limiting the generality of the foregoing sentence, no Holder of
Subordinated Indebtedness shall, without the Purchasers' prior written consent
commence or join with any other creditor or creditors of the Obligors in
commencing any proceeding against any of the Obligors
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seeking to effect a Reorganization of any of the Obligors or any of their
property.
2.8 RESTRICTIONS ON ACCELERATION. Notwithstanding any contrary
provision of any Subordinated Indebtedness or of any agreement or instrument
relating thereto, (a) no Subordinated Indebtedness shall become or be declared
to be due and payable prior to the date on which the Senior Indebtedness
becomes or is declared to be due and payable and (b) if any Senior Indebtedness
shall have become or been declared to be due and payable prior to its stated
maturity, the Subordinated Indebtedness shall become immediately due and
payable.
2.9 PAYMENT IN FULL. For the purposes of this Agreement, no
Senior Indebtedness shall be deemed to have been paid in full unless the holder
thereof shall have received and have been permitted to retain cash equal to the
amount thereof then outstanding and such Senior Indebtedness shall have been
fully indefeasibly discharged.
2.10 EFFECT OF PROVISIONS. The provisions hereof as to
subordination are solely for the purpose of defining the relative rights of
the holders of Senior Indebtedness on the one hand and the Holders of
Subordinated Indebtedness on the other hand, and such provisions shall not
impair as between the Obligors and any Holder of Subordinated Indebtedness the
obligation of the Obligors, which is unconditional and absolute, to pay to such
Holder of Subordinated Indebtedness the principal of any Subordinated
Indebtedness owed by any Obligors to such Holder of Subordinated Indebtedness
and interest thereon, and all other amounts in respect thereof, nor shall any
such provisions prevent any Holder of Subordinated Indebtedness from exercising
all remedies otherwise permitted by applicable law or under the terms of such
Subordinated Indebtedness upon a default thereunder, except to the extent set
forth in this Agreement.
2.11 FURTHER ASSURANCES. The Obligors and each Holder of
Subordinated Indebtedness, for itself and its successors and assigns as Holders
of Subordinated Indebtedness, covenant to execute and deliver to the Purchasers
such further instruments and to take such further action as the Purchasers may
at any time or times reasonably request in order to carry out the provisions
and intent of this Agreement.
2.12 LEGEND. The Obligors and each Holder of Subordinated
Indebtedness, for itself and its successors and assigns as Holders of
Subordinated Indebtedness, covenant to cause each instrument or certificate
representing or evidencing any of the Subordinated Indebtedness to have affixed
upon it a legend in substantially the following form:
"This instrument is subject to the Second Restated
Subordination Agreement restated as of July 12, 1996 as from time to
time in effect, among the maker, the payee,
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AUSA Life Insurance Company, Inc. and MONY Life Insurance Company of
America, which among other things, subordinates the maker's
obligations hereunder to the prior payment of certain obligations of
the maker to the holders of Senior Indebtedness as defined therein."
2.13 FINANCIAL STATEMENTS. Each Holder of Subordinated
Indebtedness and each Obligor shall cause any financial statement describing or
listing or otherwise reflecting the existence of any indebtedness included in
the Subordinated Indebtedness to indicate the existence of such Subordinated
Indebtedness consistent with GAAP.
2.14 SUBORDINATION BY THE PURCHASERS. The Purchasers acknowledge
and confirm that the Senior Indebtedness described herein is, pursuant to the
terms of the Note Agreement and the Guaranty Agreement, subject and subordinate
to the Senior Debt, as defined in the Note Agreement and the Guaranty
Agreement. All rights granted herein to the Purchasers shall, to the extent
applicable, be subject and subordinate to similar rights granted under separate
agreements to the holders of Senior Debt.
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Purchasers to
consent to the transactions contemplated by the Bank Credit Agreement and to
amend the Note Agreement, each Parent Company hereby represents and warrants
that:
3.1 ORGANIZATION AND BUSINESS. Holding, L.P. is a duly organized
and validly existing limited partnership, in good standing under the laws of
Delaware, and Holding, Inc. is a duly organized and validly existing
corporation, in good standing under the laws of the State of California, in
each case with all partnership or corporate power and authority necessary to
(a) enter into and perform this Agreement and (b) own its properties and carry
on the business now conducted or proposed to be conducted by it. Each Parent
Company has taken all partnership or corporate action required to execute,
deliver and perform this Agreement. Certified copies of the partnership
agreement or Charter and By-laws, as the case may be, of each Parent Company
have been previously delivered to the Purchasers and are correct and complete.
3.2 FINANCIAL STATEMENTS. Holding, L.P. has previously furnished
to the Purchasers copies of the Consolidated balance sheets of Holding, L.P.
and certain of its Subsidiaries for the years ended December 31, 1994 and 1995,
the Consolidated statements of earnings, changes in partners' equity and cash
flows for the years then ended, and the unaudited balance sheet of Holding,
L.P. and certain of its Subsidiaries as at March 31, 1996, and the separate
unaudited statements of earnings, changes in partners' equity and cash flows of
Holding, L.P. and certain of its Subsidiaries for the three (3) month period
then ended. Such financial statements have been prepared in accordance with
GAAP (subject, in the case of the unaudited statements, to year-end
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audit adjustments and the absence of footnotes) and fairly present the
financial condition of the Persons covered thereby at the date thereof and the
results of their operations for the years covered thereby. Holding, L.P. does
not have any known material contingent liabilities which are not referred to in
such financial statements.
3.3 ENFORCEABILITY; NO LEGAL OBSTACLE TO AGREEMENTS. This
Agreement constitutes the legal, valid and binding obligation of each Parent
Company, enforceable against such Person in accordance with its terms. Neither
the execution and delivery by either Parent Company of this Agreement, nor the
consummation of any transaction referred to in or contemplated by this
Agreement, nor the fulfillment of the terms hereof or thereof, has constituted
or resulted, or will constitute or result in:
(a) Any breach or termination of the provisions of any
agreement, instrument, deed or lease to which either Parent Company is a party
or by which either Parent Company is bound;
(b) the violation of any law, statute, judgment, decree
or governmental order, rule or regulation applicable to either Parent Company;
(c) The creation under any agreement, instrument, deed or
lease of any Lien upon any of the assets of either Parent Company; or
(d) Any redemption, retirement or other repurchase
obligation of either Parent Company under any partnership agreement, Charter,
By-law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing
with, any governmental or administrative authority or any other Person is
required to be obtained or made by either Parent Company in connection with the
execution, delivery and performance of this Agreement, or the transactions
contemplated hereby.
4. GENERAL COVENANTS. Each Parent Company covenants that, until all of
the Obligations shall have been paid in full, it will comply with the following
provisions:
4.1 PRESERVATION OF CORPORATE EXISTENCE, ETC. Each Parent Company
will at all times preserve and keep in full force and effect its legal
existence, rights and franchises.
4.2 TAXES AND OTHER CHARGES; ACCOUNTS PAYABLE.
4.2.1 TAXES AND OTHER CHARGES. Each Parent Company will
duly pay and discharge, or cause to be paid and discharged, before the same
shall become in arrears, all taxes, assessments and other governmental charges
imposed upon such Parent Company and its properties, sales or activities, or
upon the income or profits therefrom, as well as all claims for labor,
materials or supplies which if unpaid might by law become a Lien upon any of
its
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property; provided, however, that any such tax, assessment, charge, or claim
need not be paid if the validity or amount thereof shall at the time be
contested in good faith by appropriate proceedings (or if all such unpaid
taxes, assessments, charges or claims do not exceed $100,000 in the aggregate)
and if such Parent Company shall, in accordance with GAAP, have set aside on
its books adequate reserves with respect thereto; and provided, further, that
such Parent Company will pay or bond all such taxes, assessments, charges or
other governmental claims immediately upon the commencement of proceedings to
foreclose any Lien which may have attached as security therefore (except to the
extent such proceedings have been dismissed or stayed).
4.2.2 ACCOUNTS PAYABLE. Each Parent Company will promptly
pay when due, or in conformity with customary trade terms, all other
Indebtedness incident to the operations of such Parent Company; provided,
however, that any such Indebtedness need not be paid if the validity or amount
thereof shall at the time be contested in good faith and if such Parent Company
shall, in accordance with GAAP, have set aside on its books adequate reserves
with respect thereto.
4.3 FINANCIAL STATEMENTS AND REPORTS. Holding, L.P. will maintain
a system of accounting in which full and correct entries will be made of all
transactions in relation to its business and affairs in accordance with GAAP.
The fiscal year of Holding, L.P. will end on December 31 in each year.
4.3.1 ANNUAL REPORTS. Holding, L.P. will furnish to the
Purchasers as soon as available, and in any event within ninety (90) days after
the end of each fiscal year, the Consolidated and Consolidating balance sheet
of Holding, L.P. and its Subsidiaries as at the end of such fiscal year, the
Consolidated and Consolidating statements of earnings, changes in partners'
equity and cash flows of Holding, L.P. and its Subsidiaries for such fiscal
year (all in reasonable detail), and together with comparative figures for the
preceding fiscal year all accompanied by:
(a) Unqualified reports of Ernst &
Young, LLP (or, if they cease to be auditors of Holding, L.P., independent
certified public accountants of recognized national standing reasonably
satisfactory to the Purchasers), to the effect that they have audited such
Consolidated financial statements in accordance with generally accepted
auditing standards and that such Consolidated financial statements present
fairly, in all material respects, the financial position of Holding, L.P. and
its Subsidiaries at the dates thereof and the results of their operations for
the periods covered thereby in conformity with GAAP.
(b) The statement of such accountants
that they have caused this Agreement to be reviewed and that in the course of
their audit of Holding, L.P. and its Subsidiaries no facts have come to their
attention that cause them to believe that
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any default exists hereunder and in particular that they have no knowledge of
any default under Section 4 or, if such is not the case, specifying such
default and the nature thereof. This statement is furnished by such
accountants with the understanding that the examination of such accountants
cannot be relied upon to give such accountants knowledge of any such default
except as it relates to accounting or auditing matters within the scope of
their audit.
(c) A certificate of a Financial Officer
of Holding, L.P. to the effect that such officer has caused this Agreement to
be reviewed and has no knowledge of any default hereunder, or if such officer
has such knowledge, specifying such default and the nature thereof, and what
action the Parent Companies have taken, are taking or propose to take with
respect thereto.
(d) In the event of a material change in
GAAP after the date hereof, computations, certified by a Financial Officer of
Holding, L.P., reconciling the financial statements referred to above with
financial statements prepared in accordance with GAAP as applied to the other
covenants in Section 4 and related definitions.
(e) Computations demonstrating, as of
the end of such fiscal year, compliance with Section 7.10.4 of the Bank Credit
Agreement (as incorporated into the Note Agreement) and Section 4.5.
4.3.2 QUARTERLY REPORTS. Holding, L.P. will
furnish to the Purchasers as soon as available and, in any event, within sixty
(60) days after the end of each of the first three fiscal quarters of each
fiscal year, the internally prepared Consolidated balance sheet of Holding,
L.P. and its Subsidiaries as of the end of such fiscal quarter and the
Consolidated statements of earnings, changes in partners' equity and cash flows
of Holding, L.P. and its Subsidiaries for such fiscal quarter and for the
portion of the fiscal year then ending (all in reasonable detail), together
with comparative figures for the same period in the preceding fiscal year, all
accompanied by:
(a) A certificate signed by a
Financial Officer of Holding, L.P. to the effect that such financial statements
have been prepared in accordance with GAAP and present fairly, in all material
respects, the financial position of Holding, L.P. and its Subsidiaries covered
thereby at the dates thereof and the results of their operations for the
periods covered thereby, subject only to normal year-end audit adjustments and
the addition of footnotes.
(b) In the event of a material
change in GAAP after the date hereof, computations, certified by a Financial
Officer of Holding, L.P., reconciling the financial statements referred to
above with financial statements prepared in accordance
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with GAAP as applied to the other covenants in Section 5 and related
definitions.
(c) Computations demonstrating, as
of the end of such fiscal quarter, compliance with Section 7.10.4 of the Bank
Credit Agreement (as incorporated into the Note Agreement) and Section 4.5.
(d) A certificate signed by a
Financial Officer of Holding, L.P. to the effect that such officer has caused
this Agreement to be reviewed and has no knowledge of any default hereunder, or
if such officer has such knowledge, specifying such default and the nature
thereof and what action the Parent Companies have taken, are taking or propose
to take with respect thereto.
4.3.3 OTHER INFORMATION. From time to time upon
request of any authorized officer of either Purchaser, the Parent Companies
will furnish to the Purchasers such other information regarding the business,
affairs and condition, financial or otherwise, of the Parent Companies as such
officer may reasonably request. The authorized officers and representatives of
either Purchaser shall have the right during normal business hours to examine
the books and records of the Parent Companies and to make copies, notes and
abstracts therefrom, for the purpose of verifying the accuracy of the reports
delivered by the Parent Companies pursuant to this Section 4.3 or otherwise
and ascertaining compliance with this Agreement.
4.3.4 NOTICE OF MATERIAL LITIGATION; NOTICE OF
DEFAULTS, ETC. The Parent Companies will promptly furnish to the Purchasers
notice of the occurrence of any litigation or any administrative or arbitration
proceeding to which either Parent Company may hereafter become a party which
may involve any material risk of any material final judgment or liability not
adequately covered by insurance or which may otherwise result in a Material
Adverse Change (as defined in the Bank Credit Agreement), and notices by any
lenders, trustees or investors of any defaults, acceleration of time for
payment or special prepayments with respect to any other indebtedness of either
Parent Company.
4.4 MERGER AND CONSOLIDATION. The Parent Companies will not merge
or enter into a consolidation; provided, however, that Holding, L.P. may
convert to a successor corporation that would not result in an Event of Default
immediately after such succession and that enters into assumption agreements
with respect to this Agreement reasonably satisfactory to the Purchasers in all
respects.
4.5 RESTRICTIONS ON FINANCING DEBT. Neither Parent Company shall
create, incur, assume or otherwise become or remain liable with respect to any
Financing Debt (other than notes evidencing PIK Interest Payments, Holding,
L.P. Senior Subordinated Notes and Financing Debt outstanding on the date
hereof and reflected on the balance sheets referred to in Section 3.2 above)
unless:
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(a) prior to the incurrence of any such Financing Debt,
the Parent Companies shall have delivered to the Purchasers a certificate
signed by a Financial Officer of Holding, L.P. demonstrating that on a
pro-forma basis (after giving effect to the incurrence of such Financing Debt)
Consolidated Holding, L.P. Total Debt shall not on the date on which such
Financing Debt is to be incurred exceed the percentage indicated in the table
below of Consolidated Holding L.P. Annualized Operating Cash Flow as of the end
of the most recent fiscal quarter for which financial statements have been (or
are required to have been) furnished to the Purchasers in accordance with
Section 4.3.2.
Date Percentage
---- ----------
Prior to March 30, 2000 850%
March 31, 2000 and thereafter 750%
(b) prior to the incurrence of any such Financing Debt
that requires either cash interest payments at a rate exceeding 14% per annum
or principal repayments or sinking fund payments prior to the final maturity
date of the Notes, the Parent Companies shall have received the prior written
consent of the Purchasers to the incurrence of such Financing Debt.
4.6 NO CASH PAYMENTS ON SENIOR SUBORDINATED DEBT. Prior to
September 30, 2000, neither Parent Company shall make any cash payment of
principal of or interest on the Senior Subordinated Notes issued by Holding,
L.P.
4.7 TRANSACTIONS WITH AFFILIATES. Each Parent Company shall not
effect any transaction with any Affiliate of a Restricted Company (other than
any Restricted Company) on a basis less favorable to such Parent Company than
would be the case if such transaction had been effected with a non-Affiliate.
4.8 SENIOR SUBORDINATED DEBT AMENDMENTS AND WAIVERS. Neither
Parent Company shall permit any amendment or waiver with respect to the
Holding, L.P. Senior Subordinated Notes.
4.9 CERTAIN CONSENTS. Holding, L.P. shall proceed in good faith
to obtain all franchise and other consents to the transactions contemplated by
the Bank Credit Agreement which consents have not been obtained on or prior to
the Fourth Amendment Closing Date.
5. INFORMATION REGARDING THE OBLIGORS. Each Holder of Subordinated
Indebtedness expressly acknowledges and agrees that such Holder of Subordinated
Indebtedness has made such investigation as it deems desirable of the risks
undertaken by such holder in entering into this Agreement and is fully
satisfied that it understands all such risks. Each Holder of Subordinated
Indebtedness waives any obligation which may now or hereafter exist on the part
of the Purchasers or any holder of any Senior
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Indebtedness to inform any Holder of Subordinated Indebtedness of the risks
being undertaken by entering into this Agreement or of any changes in such
risks and, from and after the date hereof, each Holder of Subordinated
Indebtedness undertakes to keep itself informed of such risks and any changes
therein. Each Holder of Subordinated Indebtedness expressly waives (except to
the extent prohibited by applicable law which cannot be waived) any duty which
may now or hereafter exist on the part of the Purchasers or any holder of any
Senior Indebtedness to disclose to such Holder any matter related to the
business, operations, character, collateral, credit or condition (financial or
otherwise) or prospects of any of the Obligors whether now or hereafter known
by any Purchaser. Each Holder of Subordinated Indebtedness represents,
warrants and agrees that it assumes sole responsibility for obtaining from the
Obligors all information concerning the Obligations and all other information
as to the Obligors and their properties or management or anything relating to
any of the above as it deems necessary or desirable.
6. CONTINUING AGREEMENT, ETC. This Agreement shall be a continuing
agreement, shall be irrevocable and shall remain in full force and effect until
the indefeasible payment in full of the Senior Indebtedness then outstanding in
accordance with the terms thereof. No action which the holders of the Senior
Indebtedness or any Obligors may take or refrain from taking with respect to
the Senior Indebtedness, including any amendments thereto, shall affect the
provisions of this Agreement or the obligations of the Parent Companies or any
Holder of Subordinated Indebtedness hereunder. No right of the Purchasers or
any present or future holder of any of the Senior Indebtedness shall at any
time be prejudiced or impaired by any act or failure to act on the part of the
Parent Companies or by any act or failure to act, in good faith, by any
Purchaser or any such holder, or by any noncompliance by the Parent Companies
with the terms of this Agreement, regardless of any knowledge thereof which any
Purchaser or any such holder may have or otherwise be charged with.
7. WAIVERS; POWERS, ETC.
7.1 SPECIFIC PERFORMANCE. The Purchasers are authorized to demand
specific performance of this Agreement at any time when the Parent Companies or
any Holder of Subordinated Indebtedness shall have failed to comply with any
provision hereof applicable to it, and each of them irrevocably waives any
defense based on the adequacy of a remedy at law which might be asserted as a
bar to the remedy of specific performance hereof in any action brought therefor
by the Purchasers.
7.2 CONSENT TO NOTE AGREEMENT AND GUARANTY AGREEMENT. The Parent
Companies and each Holder of Subordinated Indebtedness acknowledge receipt from
the Obligors of a correct and complete copy of the Note Agreement and Guaranty
Agreement as in effect as of the date hereof, and consent to all of the
provisions of the Note Agreement and Guaranty Agreement as in effect as of such
date
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and agree that their consent is not required for any amendments, modifications
or waivers of the provisions thereof.
7.3 POWER TO MODIFY, ETC. Each Parent Company and each Holder of
Subordinated Indebtedness grants, to the extent permitted by applicable law
that cannot be waived, the Purchasers full power, in their sole discretion,
without notice to or consent by any Holder of Subordinated Indebtedness and
without in any way affecting the subordination of the Subordinated Indebtedness
provided in this Agreement.
7.3.1 To waive compliance with any Event of Default under,
and to consent to any amendment or change or any terms of, the Note Agreement
or the Guaranty Agreement (each as from time to time in effect);
7.3.2 To grant one or more extensions or renewals of the
Obligations (for any period, no matter how long), and any other indulgence with
respect thereto and to effect any total or partial release (by operation of law
or otherwise), discharge, compromise or settlement with respect to the
obligations of the Obligors in respect of the Obligations, whether or not
rights against the Obligors under this Agreement are reserved in connection
therewith;
7.3.3 To take security in any form for the Obligations and
to consent to the addition to or the substitution, exchange, release, failure
to perfect or any other disposition of, and to deal in any other manner with,
to the extent permitted by applicable law that cannot be waived, all or part of
any property which may from time to time secure the Obligations whether or not
the property, if any, received upon the exercise of such power shall be of a
character or value the same as or different from the character or value of any
property disposed of, and to obtain, modify or release any present or future
guarantees of the Obligations and to proceed against any such guarantees in any
order; and
7.3.4 To collect or liquidate any of the Obligations in any
manner or to refrain from collecting or liquidating any of the Obligations.
7.4 NO SUBROGATION. Until the Obligations have been indefeasibly
paid in full, each Parent Company hereby agrees with the Purchasers that it
waives all rights of reimbursement, subrogation, contribution, offset and other
claims against the Obligors arising by contract or operation of law in
connection with any payment made or required to be made by such Parent Company
under this Agreement.
8. TRANSFERS; SUCCESSORS AND ASSIGNS.
8.1 TRANSFERS. No Holder of Subordinated Indebtedness will sell,
assign, transfer or otherwise dispose of any Subordinated
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Indebtedness except to another Person which shall have entered into this
Agreement with the Purchasers.
8.2 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall inure to the benefit of the Purchasers and their successors and assigns
and shall be binding upon the Obligors and the Holders of Subordinated
Indebtedness and their respective successors and assigns.
9. NOTICES. Except as otherwise specified in this Agreement, any notice
required to be given pursuant to this Agreement shall be given in writing. Any
notice, demand or other communication in connection with this Agreement shall
be deemed to be given if given in writing (including telex, telecopy (confirmed
by telephone or writing) or similar teletransmission) addressed as provided
below (or to the addressee at such other address as the addressee shall have
specified by notice actually received by the addressor), and if either (a)
actually delivered in fully legible form to such address(evidenced in the case
of a telex by receipt of the correct answerback) or (b) in the case of a
letter, five days shall have elapsed after the same shall have been deposited
in the United States mails, with first-class postage prepaid and registered or
certified.
If to either Parent Company, to it at the address set forth on
the signature page hereof;
If to any Restricted Company, to it at its address set forth
in the Guaranty Agreement;
If to either Purchaser, to it at its address set forth in the
Note Agreement;
or to such other address as provided by any party hereto in writing to the
other parties hereto.
10. DEFEASANCE. When all Obligations have been paid, performed and
determined by the Purchasers to have been indefeasibly discharged in full, this
Agreement shall terminate.
11. LIMITED RECOURSE AGAINST PARTNERS. The remedies of the holders of the
Obligations, including any remedy which could be exercised upon the occurrence
of an Event of Default, shall be limited to the extent that none of the
partners of Holding, L.P. shall have any personal liability as a general
partner or limited partner of Holding, L.P. with respect to the Obligations,
and in no event shall any such partner be personally liable as a general
partner or limited partner for any deficiency judgment for any Obligation;
provided, however, that the provisions of this Section 11 shall not impair the
ability of any holder of any Obligation (a) to realize on the assets of any
Obligor or any of its Subsidiaries or (b) to pursue any remedy against any
guarantor of the Obligations.
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12. VENUE; SERVICE OF PROCESS. Each Parent Company and each Holder of
Subordinated Indebtedness, by its execution hereof:
(a) Irrevocably submits to the nonexclusive jurisdiction of the
state courts of The State of New York and to the nonexclusive jurisdiction of
the United States District Court for the Southern District New York for the
purpose of any suit, action or other proceeding arising out of or based upon
this Agreement, or the subject matter hereof or thereof brought by the
Purchasers, any holder of Senior Indebtedness or their successors or assigns;
and
(b) Waives to the extent not prohibited by applicable law, and
agrees not to assert, by way of motion, as a defense or otherwise, in any such
proceeding, any claim that it is not subject personally to the jurisdiction of
the above-named courts, that its property is exempt or immune from attachment
or execution, that such proceeding is brought in an inconvenient forum, that
the venue of such proceeding is improper, or that this Agreement, or the
subject matter hereof or thereof, may not be enforced in or by such court.
Each Parent Company and each Holder of Subordinated Indebtedness hereby agrees
that service of process by registered or certified mail, return receipt
requested, at its address specified in or pursuant to Section 9 is reasonably
calculated to give actual notice.
13. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW
THAT CANNOT BE WAIVED, EACH PARENT COMPANY AND EACH HOLDER OF SUBORDINATED
INDEBTEDNESS AND THE PURCHASERS HEREBY WAIVES, AND COVENANTS THAT IT WILL NOT
ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND OR ACTION ARISING OUT
OF THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR ANY OBLIGATION OR
IN ANY WAY CONNECTED WITH THE DEALINGS OF THE PURCHASERS OR SUCH PARENT COMPANY
OR ANY HOLDER OF SUBORDINATED INDEBTEDNESS IN CONNECTION WITH ANY OF THE ABOVE,
IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT
OR TORT OR OTHERWISE. Each Parent Company and each Holder of Subordinated
Indebtedness acknowledges that it has been informed by the Purchasers that the
provisions of this Section 13 constitute a material inducement upon which each
of the Purchasers has relied, is relying and will rely in entering into this
Agreement, and that it has reviewed the provisions of this Section 13 with its
counsel. The Purchasers, any Parent Company or any Holder of Subordinated
Indebtedness may file an original counterpart or a copy of this Section 13 with
any court as written evidence of the consent of the Purchasers, any Parent
Company or any Holder of Subordinated Indebtedness to the waiver of their
rights to trial by jury.
14. GENERAL. The headings in this Agreement are for convenience of
reference only and shall not limit, alter or otherwise affect the meaning
hereof The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability
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of any other term or provision hereof. This Agreement and the other documents
referred to herein constitute the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all prior and
current understandings and agreements, whether written or oral. This Agreement
may be executed in any number of counterparts, which together shall constitute
one instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS (OTHER THAN THE CONFLICT OF LAWS RULES) OF THE STATE
OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK;
NEXT PAGE IS SIGNATURE PAGE.]
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Each of the undersigned has caused this Second Restated Subordination
Agreement to be executed and delivered by its duly authorized officer as an
agreement under seal as of the date first above written.
FALCON HOLDING GROUP, L.P.
By: FALCON HOLDING GROUP, INC.,
general partner
By____________________________
Title_______________________
FALCON CABLE TV
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
FALCON HOLDING GROUP, INC.
By_________________________________
Title____________________________
FALCON CABLE TV
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
AUSA LIFE INSURANCE COMPANY, INC.
By_________________________________
Title____________________________
MONY LIFE INSURANCE COMPANY
OF AMERICA
By_________________________________
Title____________________________
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FALCON CABLE MEDIA, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON CABLEVISION, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY CABLE, L.P.
FALCON COMMUNITY VENTURES I
LIMITED PARTNERSHIP
FALCON TELECABLE, A CALIFORNIA
LIMITED PARTNERSHIP
FALCON COMMUNITY INVESTORS, L.P.
FALCON TELECOM, L.P.
FALCON CABLE SYSTEMS COMPANY II, 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
By: FALCON HOLDING GROUP, INC., as
general partner, or general
partner, of each of the fore-
going Restricted Companies
By____________________________
Title_______________________
FALCON FIRST, INC.
By_________________________________
Title____________________________
ATHENS CABLEVISION, INC.
AUSABLE CABLE TV, INC.
CEDAR BLUFF CABLEVISION, INC.
▇▇▇▇▇▇ 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
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