Exhibit 4.21
SIXTH AMENDMENT TO NOTE PURCHASE
AGREEMENT
AND SENIOR DISCOUNT
NOTES
This Sixth Amendment to Note
Purchase Agreement and Senior Discount Notes dated as of March 2,
2004 (this “Amendment”) is by and among Ampex Data
Systems Corporation (the “Issuer”), Ampex Corporation
(the “Guarantor”), the entities identified as
“Purchasers” on the signature pages hereto (the
“Purchasers”), and DDJ Capital Management, LLC as agent
(the “Holders’ Agent”) for the Purchasers and the
other holders from time to time of the Senior Discount Notes
(defined below).
WHEREAS, the Issuer, the Guarantor,
the Purchasers and the Holders’ Agent are parties to a
certain Note Purchase Agreement, dated as of November 6, 2000 (as
amended, the “Note Purchase Agreement”) with respect to
Senior Discount Notes of the Issuer in the original aggregate face
principal amount at June 1, 2001 of $8,919,555.56 (the
“Senior Discount Notes”); and
WHEREAS, the parties have entered
into (i) an Amendment to Note Purchase Agreement and Senior
Discount Notes, dated as of May 30, 2001 (the “First
Amendment”), pursuant to which, among other things, the
stated maturity date of the Senior Discount Notes was extended from
May 30, 2001 to August 31, 2001, (ii) a Second Amendment to Note
Purchase Agreement and Senior Discount Notes, dated as of August
13, 2001 (the “Second Amendment”), pursuant to which,
among other things, the stated maturity date of the Senior Discount
Notes was extended from August 31, 2001 to October 31, 2001, (iii)
a Third Amendment to Note Purchase Agreement and Senior Discount
Notes, dated as of October 26, 2001 (the “Third
Amendment”), pursuant to which, among other things, the
stated maturity date of the Senior Discount Notes was extended from
October 31, 2001 to March 31, 2002, (iv) a Fourth Amendment to Note
Purchase Agreement and Senior Discount Notes, dated as of January
31, 2002 (the “Fourth Amendment”), pursuant to which,
among other things, the restrictions on the ability of the Issuer
and the Guarantor to incur indebtedness and grant liens were
amended, and (v) a Fifth Amendment to Note Purchase Agreement and
Senior Discount Notes, dated as of March 25, 2002 (the “Fifth
Amendment”), pursuant to which, among other things, the Final
Maturity Date of the Senior Discount Notes was extended to January
5, 2005; and
WHEREAS, the Issuer and the
Guarantor have requested that the Purchasers and the Holders’
Agent agree to further amend the Note Purchase Agreement and the
Senior Discount Notes to, among other things, extend the Final
Maturity Date of the Senior Discount Notes to January 5, 2006;
and
WHEREAS, the Purchasers and the
Holders’ Agent are willing to amend the Note Purchase
Agreement and the Senior Discount Notes as requested on the terms
and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of
the mutual covenants and agreements set fourth herein and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto do hereby agree
as follows:
1. Capitalized terms used
herein without definition shall have the meanings set forth in the
Note Purchase Agreement.
2. Section 1.1 of the
Note Purchase Agreement is hereby amended by adding the following
new terms, and/or amending and restating the following existing
terms:
“ Available Cash Flow
” means, with respect to any relevant period:
(i) the aggregate amount
of royalty payments and license fees received in cash by the
Guarantor and its Subsidiaries under the Royalty Agreements during
such period, plus
(ii) Net Cash Proceeds
received during such period from any Asset Sale involving any
assets of the Guarantor or the Issuer, or any Capital Stock of the
Issuer, during such period, minus
(iii) The aggregate
amount of scheduled quarterly payments of interest accrued by the
Guarantor on the Hillside Contribution Notes pursuant to Section
2.3(a) of the Hillside Agreement during such period and actually
paid by the Guarantor during such period or within thirty (30) days
following the end of such period, minus
(iv) The minimum amount
of principal payments required to be paid by the Guarantor in
respect of the Hillside Contribution Notes pursuant to the Section
2.3(b) of the Hillside Agreement during such period and actually
paid by the Guarantor during such period or within thirty (30) days
following the end of such period (provided that in no event shall
any principal payments be made in respect of the Hillside
Contribution Notes pursuant to Section 2.3(b) of the Hillside
Agreement prior to December 31, 2006); minus
(v) The minimum amount of
principal payments required to be paid by the Guarantor in respect
of the Hillside Contribution Notes pursuant to Section 2.5 (b) of
the Hillside Agreement during such period and actually paid by the
Guarantor during such period or within thirty (30) days following
the end of such period (provided that in no event (x) shall the
aggregate amount of payments made in respect of the Hillside
Contribution Notes pursuant to Section 2.5 (b) of the Hillside
Agreement during any fiscal year exceed the lesser of (A) 20% of
Net Income of the Ampex Group (as such terms are defined in the
Hillside Agreement) during the prior fiscal year and (B)
$1,000,000, and (y) shall any principal payments be made in respect
of the Hillside Contribution Notes pursuant to Section 2.5 (b) of
the Hillside Agreement prior to December 31, 2006),
minus
(vi) Mandatory pension
payments required to be paid by the Guarantor during such period
that are not funded by Hillside under the Hillside Agreement and
are actually paid by the Guarantor during such period or within
thirty (30) days following the end of such period,
minus
(vii) Mandatory payments
required to be paid by the Guarantor during such period under
employee supplementary pension plans of the Guarantor or any
Subsidiary created prior to 1992 and currently in effect and
actually paid during such period or within thirty (30) days
following the end of such period, minus
(viii) The aggregate
amount of withholding, income, property or other taxes, licenses or
fees required to be paid by the Guarantor during such period in
connection with the conduct of business of the Guarantor or to
maintain its existence and actually paid by the Guarantor during
such period or within thirty (30) days following the end of such
period, minus
(ix) The aggregate amount
of operating expenses (including, but not limited to, expenditures
incurred in developing, issuing, maintaining and enforcing patents
and collecting royalties but excluding dividends and distributions
to holders of Capital Stock of the Guarantor and payments in
respect of Indebtedness for Borrowed Money not expressly permitted
under Section 8.6 hereof) required to be paid by the Guarantor
during such period or within thirty (30) days following the end of
such period, minus
(x) The aggregate amount
of incentive payments to employees engaged in collecting royalties
required to be paid by the Guarantor during such period and
actually paid by the Guarantor during such period or within thirty
days following the end of such period and which in no event shall
exceed 3% of the net royalties received by the Guarantor during
such period, minus
(xi) The aggregate amount
of payments required to be paid by the Guarantor in respect of
acc
