STANDSTILL AGREEMENT
STANDSTILL AGREEMENT (this "Agreement") effective as of May
19, 1997, by and among Radio One, Inc., a Delaware corporation ("Radio One");
the subsidiaries of Radio One from time to time party hereto and who are
guarantors of the Senior Indebtedness (as defined below) (herein referred to as
the "Subsidiaries" and collectively, with Radio One hereinafter referred to as
the "Companies," and individually as a "Company"); ALTA Subordinated Debt
Partners III, L.P., BancBoston Investments, Inc., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Syncom
Capital Corporation, Alliance Enterprise Corporation, Greater Philadelphia
Venture Capital Corporation, Inc., Opportunity Capital Corporation, Capital
Dimensions Venture Fund, Inc., TSG Ventures Inc. and Fulcrum Venture Capital
Corporation (together with their respective successors and assigns, each an
"Investor" and collectively the "Investors"); ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, III (each, a "Management Stockholder" and
collectively, the "Management Stockholders"); and NationsBank of Texas, N.A., as
Agent ("Agent") for itself and the other Senior Lenders (hereinafter defined),
and United States Trust Company of New York, as trustee (the "Trustee") for the
holders of the Senior Subordinated Notes under the Indenture (as those terms are
hereinafter defined).
WITNESSETH:
WHEREAS, Radio One, the Investors, certain Subsidiaries of
Radio One then existing, and the Management Stockholders entered into a
Securities Purchase Agreement, dated June 6, 1995 (the "Securities Purchase
Agreement"), pursuant to which: (i) Radio One sold and the Investors purchased
from Radio One subordinated promissory notes due in the year 2003 in the
aggregate principal amount of $17,000,000 (the "Subordinated Notes"); and (ii)
Radio One sold and the Series B Preferred Investors (as defined below) purchased
from Radio One warrants (the "New Warrants") for an aggregate of 50.93 shares of
the Common Equity of Radio One on a fully-diluted basis;
WHEREAS, simultaneously with the execution of the Securities
Purchase Agreement, Radio One and the Series A Preferred Investors (as defined
below) entered into an Exchange Agreement (the "Exchange Agreement") dated as of
June 6, 1995, pursuant to which the Series A Preferred Investors exchanged all
of their then existing warrants for $6,251,094 in cash and new warrants (the
"Exchange Warrants", together with the New Warrants, the "Warrants") to purchase
an aggregate of 96.11 shares of the common stock of Radio One on a fully-diluted
basis;
WHEREAS, simultaneously with the execution of the Securities
Purchase Agreement, Radio One, the Investors, certain subsidiaries of Radio One
then existing, and the Management Stockholders entered into a Warrantholders'
Agreement dated as of June 6, 1995 (referred to herein as the "Existing Warrant
Agreement"), to govern the rights of each under the Warrants;
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WHEREAS, Radio One has heretofore entered into: (i) an asset
purchase agreement with ▇▇▇▇▇ Broadcasting Company of Pennsylvania, Inc., dated
December 6, 1996, as amended (the WPHI-FM Purchase Agreement"), which provides
for the purchase of certain assets used or held for use in the operation of
Radio Station WPHI-FM, licensed to Jenkintown, Pennsylvania ("WPHI-FM"), and
(ii) a binding letter of intent (the "WYCB-AM Letter of Intent") to acquire the
stock of the corporation holding Radio Station WYCB-AM, Washington, D.C.
("WYCB-AM," and together with WPHI-FM, the "New Stations");
WHEREAS, simultaneously with the execution hereof, Radio One
will issue its 12% Senior Subordinated Notes due 2004 (the "Senior Subordinated
Notes") to certain investors (the "Senior Subordinated Noteholders") pursuant to
an offering under Rule 144A of the Securities Act of 1933, as amended, with
respect to which Radio One shall receive gross proceeds in an amount equal to
$75,000,000 (the "Senior Subordinated Debt Financing") for the purpose of: (i)
funding the balance of the purchase price for WPHI-FM (the "WPHI-FM
Acquisition") and WYCB-AM (the "WYCB-AM Acquisition," and together with the
WPHI-FM Acquisition, the "Acquisitions"), (ii) repaying all of the outstanding
indebtedness due under the Amended and Restated Senior Credit Agreement dated as
of June 6, 1995, among Radio One, certain Subsidiaries of Radio One then
existing, NationsBank of Texas, N.A., as agent and lender, and the other Senior
Lenders named therein (as amended, the "Existing Senior Credit Agreement");
(iii) paying for the leasehold improvements, new equipment and other amounts
associated with moving Radio One's Washington, D.C. offices and studios in the
second quarter of 1997 to an office building located in Lanham, Maryland; (iv)
providing funding for other general purposes, including working capital; and (v)
paying the related fees and expenses of the offering of the Senior Subordinated
Notes, the exchange of Preferred Stock (as defined herein) for the Subordinated
Notes and the Acquisitions;
WHEREAS, Radio One, Radio One Licenses, Inc., a Delaware
corporation (the "Subsidiary"), and NationsBank of Texas, N.A. (together with
any other lender thereunder, and its successors and assigns, a "Senior Lender"),
intend to enter into that certain Amended and Restated Senior Credit Agreement
with Radio One, dated as of May 19, 1997, amending and restating the Existing
Senior Credit Agreement (as amended, modified, restated, supplemented, renewed,
extended, increased, rearranged or substituted from time to time, the "Senior
Credit Agreement"), pursuant to which the Senior Lender will loan up to
$7,500,000 of secured senior debt to Radio One in the form of a line of credit
for working capital needs and general corporate purposes, and including a letter
of credit facility for good faith escrow deposits in connection with Permitted
Acquisitions and to secure certain Capital Lease Obligations; and
WHEREAS, pursuant to the terms of a Preferred Stockholders'
Agreement, dated as of May 14, 1997 by and among the Investors, including
without limitation the Investors listed as Series A Preferred Investors on
Schedule A thereto (the "Series A Investors") and the Investors listed as Series
B Preferred Investors on Schedule A thereto (the "Series B Investors"), Radio
One, the Subsidiary, and each Management Stockholder (the "Preferred
Stockholders' Agreement"), and as a necessary condition to the Senior
Subordinated Debt Financing, (i) the Series A Preferred Investors will exchange
all of their Subordinated Notes (including all accrued
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but unpaid interest thereon) for the number of shares of Series A 15% Senior
Cumulative Redeemable Preferred Stock of Radio One (the "Series A Preferred
Stock") listed on Schedule A to the Preferred Stockholders' Agreement, and (ii)
the Series B Preferred Investors will exchange all of their Subordinated Notes
(including all accrued but unpaid interest thereon) for the number of shares of
Series B 15% Senior Cumulative Redeemable Preferred Stock of Radio One (the
"Series B Preferred Stock," and together with the Series A Preferred Stock, the
"Preferred Stock") listed on Schedule A of the Preferred Stockholders'
Agreement; and
WHEREAS, on or about the date hereof, the Companies, the Management
Shareholders and the Investors will enter into a First Amendment to the Existing
Warrant Agreement (as so amended, the "Warrant Agreement"), pursuant to which
replacement certificates (entitled "Amended and Restated Warrants") will be
issued in replacement of the outstanding warrant certificates reflecting changes
in Radio One's debt and capital structure. The term "Warrants" as used herein
shall include such replacement certificates.
In order to induce the Senior Lenders to make financial
accommodations to the Companies and to enter into the Senior Credit Agreement,
and to induce the Senior Subordinated Noteholders to purchase the Senior
Subordinated Notes, and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the Companies, the Investors and
the Management Stockholders hereby agree with the Agent on behalf of the Senior
Lenders, and the Trustee, on behalf of the Senior Subordinated Noteholders that,
so long as any Senior Indebtedness (as hereinafter defined) is outstanding or
committed to be advanced, each such party will comply with such of the following
provisions as are applicable to it:
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Certain Definitions.
1.1 Capitalized Terms. Except as otherwise defined herein,
all capitalized terms used in this Agreement shall have the meanings specified
for such terms in Appendix A.
1.2 Senior Indebtedness. The term "Senior Indebtedness"
shall mean any and all loans, advances, extensions of credit and any other
indebtedness, obligations and/or liabilities, now existing or hereafter arising,
direct or indirect, absolute or contingent, of the Companies, or any of them to
(i) the Senior Lenders outstanding from time to time, whether pursuant to the
Senior Credit Agreement, any guaranty or guaranties thereof, the notes issued
pursuant thereto any security agreement or any other agreement or document
entered into by any of the Companies in connection therewith (collectively, the
"Loan Documents") (including, without limitation, any and all indebtedness to
the Senior Lenders in respect of any and all future loans or advances or
extensions of credit made to the Companies, or any of them, by the Senior
Lenders prior to, during or following any proceeding in respect of any
"Reorganization", as defined in Section 3.2 hereof, together with interest
thereon and all fees, expenses and other amounts (including costs of collection
and reasonable attorneys' fees) at any time owing to the Senior Lenders, whether
arising in connection
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with the Senior Credit Agreement, or any other Loan Documents, or such other
indebtedness (all of the foregoing sometimes referred to herein as the "Primary
Senior Indebtedness"), and (ii) the Senior Subordinated Noteholders from time to
time, pursuant to that certain Indenture, by and between the Company and the
Trustee, dated May 15, 1997 (as amended, modified, restated, supplemented,
renewed, extended, increased, rearranged or substituted from time to time, the
"Indenture"), the Senior Subordinated Notes issued pursuant thereto, the
guaranties of the Subsidiaries with respect thereto (the "Subordinated
Guaranties"), or otherwise, together with interest thereon and all fees,
expenses and other amounts (including costs of collection and reasonable
attorneys' fees) at any time owing to the Senior Subordinated Noteholders,
whether arising in connection with the Indenture, the Senior Subordinated Notes,
the Subordinated Guaranties or any other document executed in connection
therewith, (regardless of the extent to which the Senior Credit Agreement, or
any other Loan Document, or such other indebtedness, or the Indenture, the
Senior Subordinated Notes or the Subordinated Guaranties is enforceable against
the Companies and regardless of the extent to which such amounts are allowed as
claims against the Companies in any Reorganization, and including any interest
thereon accruing after the commencement of any Reorganization and any other
interest that would have accrued thereon but for the commencement of such
Reorganization); provided, that without the prior consent of Investors holding a
majority in interest of the Preferred Stock, the Senior Lenders shall not
increase the greater of (i) the aggregate committed amount of $7,500,000 under
the Senior Credit Agreement or (ii) the principal amount of loans under the
Senior Credit Agreement permitted to be outstanding to the Companies, by an
amount in excess of $2,500,000, and the Senior Subordinated Noteholders will not
increase the principal amount outstanding under the Senior Subordinated Notes.
All holders of Senior Indebtedness shall be entitled to the benefits of this
Agreement without notice thereof being given to the Investors.
1.3 Subordinated Obligations. The term "Subordinated
Obligations" shall mean any and all existing and hereafter arising obligations
and/or liabilities whatsoever of the Companies, or any of them, to (i) the
Investors in connection with the Preferred Stock, whether payments made in
respect of Liquidation Value or dividends of the Preferred Stock, indemnities or
otherwise in respect of such Preferred Stock, whether direct or indirect,
absolute or contingent, and all claims, rights, causes of action, judgments and
decrees in respect of the foregoing, including, without limitation: all
indebtedness, obligations and/or liabilities arising under, resulting from,
relating to or in connection with such Preferred Stock, and further including
without limitation any amounts paid at any time to the Investors under or in
connection with provisions of the Securities Purchase Agreement and (ii) the
Investors in connection with or under the, the Warrant Agreement, the Warrants,
any and all proxies granted in connection therewith, and (iii) any indebtedness
of the Company or any Subsidiary issued to the Investors, if any and at any
time, in any transaction related to or in connection with the Preferred Stock or
the Warrants, and in each case any and all agreements or instruments securing
any of the obligations, indebtedness and/or liabilities evidenced by, arising
under, resulting from or related to the foregoing (all of the foregoing,
together with any other agreement, document, instrument, certificate or proxy
evidencing or relating to any of the foregoing, the transactions contemplated
therein or the Subordinated Obligations being hereinafter collectively referred
to as the "Subordinated Agreements").
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2. Representations and Warranties.
(a) The Company and each Management Shareholder hereby represents and warrants
to the Agent, the Senior Lenders, the Trustee and each Senior Subordinated
Noteholder that:
(i) At the date hereof (i) the total number of shares of 15% Series A
Preferred Stock authorized by Radio One, held by the Series A Investors, is
100,000 shares, par value $.01 per share; with an aggregate Liquidation Value
for all such Series A Preferred Stock equal to $8,484,303; and (ii) the total
number of shares of 15% Series B Preferred Stock authorized by the Company, held
by the Series B Investors, is 150,000 shares, par value $.01 per share, with an
aggregate Liquidation Value for all such Series B Preferred Stock equal to
$12,446,710. At the date hereof, no dividends have been declared or have accrued
with respect to the Preferred Stock. All of the Investors holding Series A
Preferred Stock are listed on Exhibit A, under the caption "Series A Preferred
Investors"; all of the Investors holding Series B Preferred Stock are listed on
Exhibit A, under the caption "Series B Preferred Investors". All of the
Investors holding warrants are listed on Exhibit A, under the caption
"Warrantholders".
(ii) True, accurate and complete copies of the Subordinated Agreements
are attached hereto as Exhibit B; and
(b) Each Investor hereby represents and warrants to the Agent, the Senior
Lenders, the Trustee and each Senior Subordinated Noteholder that:
(i) Each Investor is the holder of the Preferred Stock held by it, and
in the case of Investors owning Warrants, the Warrants, free and clear of all
liens, claims and encumbrances, and such Investor is not subject to any
contractual limitation or restriction which would impair in any way its ability
to execute or perform its obligations under this Agreement.
(ii) Each Investor hereby consents to the Companies incurring the
Senior Indebtedness, including, without limitation, all future loans and
extensions of credit by the Senior Lenders and the Senior Subordinated
Noteholders to the Companies (to the extent permitted hereunder), or any of
them, for all purposes for which such consent may be required under the
Subordinated Agreements or otherwise;
(iii) Such Investor has no liens on, security interests in, or other
rights to any of the assets of the Companies.
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3. Terms of Subordination.
3.1 No Transfer. The Investors will not sell or otherwise
dispose of any of the Subordinated Obligations, including, without limitation,
the Preferred Stock or the Warrants, except with the consent of the Senior
Lenders (which consent shall not be unreasonably withheld); provided, however,
that the Investors may sell or transfer the Preferred Stock or the Warrants to
an Affiliate, or any partner of any Investor existing on the date hereof or as
required by law or regulation. In all cases, prior to any transfer of the
Preferred Stock or the Warrants, or any other Subordinated Obligation, each
transferee thereof must (a) agree in advance in writing, pursuant to an
agreement in form acceptable to the Senior Lenders, to become a party hereto and
(b) pledge to Agent and the Senior Lenders, in advance, any Warrants so
transferred pursuant to a pledge agreement in form acceptable to Senior Lenders.
The Investors shall give the Senior Lenders at least thirty (30) days prior
written notice of any such proposed transfer stating the identity of the
transferee and providing such other information as the Senior Lenders shall
reasonably require.
3.2 Payment Subordinated. (a) Anything in the Subordinated
Agreements to the contrary notwithstanding, each Investor hereby subordinates
and defers the payment of the Subordinated Obligations, and the Subordinated
Obligations are and shall be hereby made expressly subordinate and junior in
right of payment to the prior indefeasible payment in full in cash of the Senior
Indebtedness and termination of the Senior Credit Agreement and the Indenture,
and the Subordinated Obligations are hereby subordinated as a claim against the
Companies and the Management Stockholders (relating to the Senior Indebtedness)
or any of the assets of, or ownership interests in, the Companies whether such
claim be (i) in the event of any distribution of the assets of a Company upon
any voluntary or involuntary dissolution, winding-up, total or partial
liquidation or reorganization, or bankruptcy, insolvency, receivership or other
statutory or common law proceedings or arrangements involving a Company or the
readjustment of the liabilities of a Company or any assignment for the benefit
of creditors or any marshaling of the assets or liabilities of a Company (any of
the foregoing being hereinafter referred to as a "Reorganization"), (ii) in
connection with a sale of the Companies pursuant to the Subordinated Agreements
or otherwise or (iii) other than in connection with any Reorganization or any
such sale, to the prior indefeasible payment in full in cash of the Senior
Indebtedness and termination of the Senior Credit Agreement and the Indenture.
In furtherance of the foregoing, except as provided in Section 3.6 hereof, the
Companies will not make, and no holder of Subordinated Obligations will accept
or receive, any payment of Subordinated Obligations until all the Senior
Indebtedness has been indefeasibly paid in full in cash and the Senior Credit
Agreement and the Indenture have been terminated.
(b) Further, so long as any Claim (as defined in Section 5
hereof) of Agent or any of the Senior Lenders or the Trustee or any Senior
Subordinated Noteholder against any of the Companies, the Management
Stockholders (relating to the Senior Indebtedness) or any portion of the Senior
Indebtedness remains outstanding or unsatisfied, and until the Senior Credit
Agreement and the Indenture have been terminated, each Investor agrees that it
shall not (i) exercise any of its rights under the Warrants or any other option,
warrant, call or other Right (other than, subject to Section 8 hereof, the
Investors' rights under Section 10 of the Preferred Stockholders' Agreement and
Articles VI and VIII of the Warrant Agreement and under any irrevocable proxy
granted to
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effectuate the Investors' rights under Articles VI and VIII of the Warrant
Agreement) it may now have or hereafter acquire with respect to any portion of
the capital stock of any of the Companies (collectively, "Equity Rights"),
whether acquired pursuant to the Subordinated Agreements or otherwise (A) unless
after the exercise of such Warrants or other Equity Rights, the Investors will
not own, directly or indirectly, 65% or more of Radio One or any other Company
nor be entitled to elect or designate for election a majority of the Board of
Directors of any Company, (B) if as a result of such exercise of the Warrants or
other Equity Rights, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ shall not continue to directly own of
record and beneficially and to control 35% or more of Radio One and the
Companies or would not be entitled to elect or designate for election a majority
of the Board of Directors of any Company and (C) unless such Investor shall have
first (x) notified the Senior Lenders and the Trustee of its desire to exercise
its Warrant, (y) instructed and notified Radio One that any capital stock to be
issued in connection with the exercise of any Warrant of any Investor shall be
delivered directly to Agent as security for the Primary Senior Indebtedness and
(z) such Investor shall simultaneously pledge such capital stock to the Agent
for the benefit of the Senior Lenders pursuant to a pledge agreement in form and
substance satisfactory to the Senior Lenders and deliver to Agent stock powers
(executed in blank) covering such capital stock, (ii) exercise any rights it now
has or hereafter acquires to require a Company to repurchase any of the Warrants
pursuant to the Subordinated Agreements or otherwise, or (iii) accept any sums
in consideration of repurchase of any of the Warrants.
3.3 Distributions in Reorganization. (a) In the event of
any Reorganization relative to a Company or property of a Company, all of the
Senior Indebtedness shall first have been indefeasibly paid in full in cash and
the Senior Credit Agreement and the Indenture shall have been terminated before
any payment whatsoever is made upon or in respect of the Subordinated
Obligations (including but not limited to payments on account of redemption,
liquidation, dividends, or principal, premium, interest or otherwise), and in
any such proceedings any payment or distribution of any kind or character
whatsoever, whether in cash or property or securities which may be payable or
deliverable in respect of the Subordinated Obligations shall be paid or
delivered directly to the (i) Agent for the benefit of the Senior Lenders for
application in payment of the Primary Senior Indebtedness, unless and until the
Investors shall have received notice in writing from the Agent that all such
Primary Senior Indebtedness shall have been indefeasibly paid and satisfied in
full in cash and the Senior Credit Agreement shall have been terminated, and
(ii) thereafter to the Trustee, for the benefit of the Senior Subordinated
Noteholders, for application in payment of the Senior Subordinated Notes and all
monetary obligations of any Company under the Indenture, unless and until the
Investors shall have received notice in writing from the Trustee that all such
Senior Subordinated Notes and all monetary obligations under the Indenture of
any Company shall have been indefeasibly paid and satisfied in full in cash and
the Indenture shall have been terminated. In the event that, notwithstanding the
foregoing, upon any such Reorganization, any payment or distribution of assets
of a Company of any kind or character whatsoever, whether in cash, property or
securities, shall be received by any holder of the Subordinated Obligations
before all of the Senior Indebtedness is indefeasibly paid in full in cash and
the Senior Credit Agreement and the Indenture have been terminated, the
Investors agree hereby to cause all such payments and distributions to be
immediately paid over, first, to the Agent for the benefit of the Senior
Lenders, for application to the payment of all Primary Senior Indebtedness
remaining unpaid
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until the Investors shall have received notice in writing from the Agent that
all such Primary Senior Indebtedness shall have been indefeasibly paid in full
in cash and the Senior Credit Agreement has been terminated, and second, to the
Trustee for the benefit of the Senior Subordinated Noteholders, for application
to the payment of all Senior Subordinated Notes and all other monetary
obligations of any Company under the Indenture, until the Investors shall have
received notice in writing from the Trustee that all such Senior Subordinated
Notes and such other monetary obligations shall have been indefeasibly paid in
full in cash and the Indenture has been terminated.
(b) Until such time as the Senior Indebtedness has been
indefeasibly paid and satisfied in full in cash and the Senior Credit Agreement
and the Indenture shall have been terminated, each of the Investors irrevocably
authorizes and empowers the Agent, on behalf of the Senior Lenders, and at such
time as the Primary Senior Indebtedness shall have been indefeasibly paid in
full, the Trustee, on behalf of the Senior Subordinated Noteholders, in any
proceedings under any Reorganization (i) to file a proof of claim on behalf of
any or all of the Investors with respect to the Subordinated Obligations if any
such Investor fails to file proof of its claims prior to 30 days before the
expiration of the time period during which such claims must be submitted, (ii)
to accept and receive any payment or distribution which may be payable or
deliverable at any time upon or in respect of such Subordinated Obligations,
provided that at such time as the Primary Senior Indebtedness shall have been
indefeasibly paid in full, amounts received thereafter by the Agent, if any,
shall be delivered by the Agent to the Trustee for the benefit of the Senior
Subordinated Noteholders, (iii) to prove any and all claims, or seek enforcement
thereof, of each of the Investors in any Reorganization proceeding and (iv) to
take such other action as may be reasonably necessary to effectuate any of the
foregoing. Upon the Agent's or the Trustee's reasonable request, each Investor
agrees severally and not jointly to provide to the Agent and the Trustee, all
information and documents necessary to present claims or prove claims or seek
enforcement thereof as aforesaid. The Investors shall retain the exclusive right
to vote their claims in any Reorganization; provided, that no Investor shall be
entitled to take any action or vote in any way and each such Investor hereby
agrees severally and not jointly to not take any action or vote in any way, so
as to contest (i) the validity or the enforceability of the Senior Credit
Agreement, any of the other Loan Documents or any of the liens or security
interests which secure the payment or performance of the Primary Senior
Indebtedness, (ii) the validity or the enforceability of the Indenture, the
Senior Subordinated Notes, the Subordinated Guaranties or any other document
executed in connection therewith, or (iii) the validity or enforceability of
this Agreement or any agreement or instrument to the extent evidencing or
relating to the Senior Indebtedness. Neither the Agent and the Senior Lenders,
nor the Trustee and the Senior Subordinated Noteholders, shall in any event be
liable for any failure to prove the Subordinated Obligations; for failure to
exercise any rights with respect thereto; or for failure to collect any sums
payable thereon or for failure to take any affirmative action in connection
therewith.
3.4 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 the
Subordinated Obligations on the other hand, and, except as otherwise expressly
provided herein, none of such provisions shall impair, as between the Companies
and the holders of the Subordinated Obligations, the obligations of the
Companies, which are unconditional and
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absolute to pay to such holders all of the Subordinated Obligations in
accordance with the terms thereof.
3.5 Subrogation, etc. The holders of the Subordinated
Obligations shall not be subrogated to the rights of the holders of the Senior
Indebtedness in respect of payments or distributions of assets of, or ownership
interests in, the Companies made on the Senior Indebtedness, if at all under
applicable law, until the Senior Indebtedness shall have been indefeasibly paid
in full in cash and the Senior Credit Agreement and the Indenture have been
terminated.
3.6 Permitted Payments of Subordinated Obligations. Radio
One may, from time to time, pay or cause to be paid to any holder of
Subordinated Obligations, and any such holder may accept and retain, payments or
other distributions, including without limitation in respect of any redemption
or other payment in respect of the Preferred Stock, to the extent, and solely to
the extent, permitted (i) under the Senior Credit Agreement, so long as any
Primary Senior Indebtedness thereunder remains unpaid and the Senior Credit
Agreement has not been terminated, and (ii) under the Indenture, so long as the
Senior Subordinated Notes, and all monetary obligations in connection therewith,
remain unpaid, and the Indenture has not been terminated.
4. Agreement to Hold in Trust. If any holder of Subordinated
Obligations shall receive any payment with respect to the Subordinated
Obligations in any form and from any source whatsoever (including, without
limitation, any payment or distribution of collateral security, if any, or the
proceeds of any collateral security) in violation of this Agreement, it shall
hold such payment in trust first, for the benefit of the Senior Lenders and,
promptly upon discovery or notice of such violation, pay it over to Agent for
the benefit of the Senior Lenders for application to payment of the Primary
Senior Indebtedness; and upon receipt of notice from the Agent that the Primary
Senior Indebtedness has been paid in full and the Senior Credit Agreement has
been terminated, shall thereafter, pay it over to the Trustee for the benefit of
the Senior Subordinated Noteholders for application in payment of the Senior
Subordinated Notes and other monetary obligations under the Indenture; provided,
however, that if any holder of Subordinated Obligations receives the Permitted
Prepayment or any interest payment permitted to be made under Section 8.6 of the
Senior Credit Agreement or the Indenture, and such holder is not aware that such
payment was made in violation of the Senior Credit Agreement or the Indenture,
or that a default or event of default exists under the Senior Credit Agreement
or the other Loan Documents or the Indenture or the Subordinated Guaranties, and
the Agent or the Trustee does not notify such holder of Subordinated Obligations
that such payment was made in violation of the Senior Credit Agreement or the
Indenture, as the case may be, within 90 days of the date of payment thereof,
then the Investors shall be entitled to retain such interest payments or
Permitted Prepayment.
5. Amendments to Subordinated Agreements/Additional Liens on
Collateral. Each Investor covenants and agrees that, unless the Senior Lenders
otherwise consent thereto in writing, it will not amend or modify any provision
of any of the (a) Warrant Agreement, (b) the Amended and Restated Certificate of
Incorporation of the Company, or the Preferred Stockholders' Agreement, or (c)
the other Subordinated Agreements, in each such case, so as to effect (i) any
obligation to pay any fees or any increase in the rate of interest or dividends
charged, declared or
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accrued thereunder, (ii) any increase in the principal amount or liquidation
value of the Subordinated Obligations or any installment due thereunder, or to
create any obligation to make a principal payment or payment in respect of
redemption, (iii) any additional payment or prepayment or redemption
requirements, or requirements in respect of dividends or voting rights, (iv) any
acceleration of the maturity date of any payment for principal, redemptions,
dividends or interest, (v) amendment of the form or method of payment, (vi) the
granting or obtaining of any collateral security or obtaining any lien on any
collateral, (vii) providing for any additional covenants (financial or
otherwise) or events of default (however defined), Redemption Events or
remedies, or making more restrictive any existing covenants or events of default
or provisions governing the Preferred Stock or Warrants, (viii) any rights to
control the board of directors of any of the Companies, (ix) any changes to
Section 10 of the Preferred Stockholders' Agreement or Articles VI or VIII of
the Warrant Agreement or (x) any other amendment which would result in a breach
or violation of the Senior Credit Agreement or which could have an adverse
effect on the operations of the Companies, the Agent's or the Senior Lenders'
security interest in the Collateral or the Agent's or the Senior Lenders'
Claims. As used herein, the term "Claims" shall mean the Senior Indebtedness and
any and all now existing and future indebtedness, obligations or liabilities,
including without limitation any post petition interest, of the Companies to
Agent and the Senior Lenders, or the Trustee and the Senior Subordinated
Noteholders, whether direct or indirect, absolute or contingent, secured or
unsecured, arising under the Senior Credit Agreement, the Notes, or any other
Loan Documents, or the Indenture or the Senior Subordinated Notes, or the
Subordinated Guaranties, as now written or as amended, modified, restated,
supplemented, renewed, extended, increased, rearranged or substituted hereafter
or by operation of law or otherwise, including any and all expenses (including
reasonable attorneys' fees) incurred in connection therewith and any interest
thereon. Claims shall also include all such Claims arising as a result of any
refinancing of the Claims by another Person in accordance with the terms of this
Agreement or (c) obtain any liens on or security interests in any of the assets
or Property of the Companies as security for the Subordinated Obligations or
otherwise.
6. Requirement of Notice. (a)The Investors agree to notify Agent
and the Senior Lenders and the Trustee, on behalf of the Senior Subordinated
Noteholders immediately upon the happening of any of the following:
(i) the Investors declare an event of default,
elect to exercise rights of any mandatory redemption or put in respect
of the Preferred Stock, or elect to exercise any rights to convert the
Preferred Stock or Warrants into common stock or indebtedness of the
Company or any Subsidiary, under any of the Subordinated Agreements;
(ii) the waiver by the Investors of any material
default or redemption event under any of the Subordinated Agreements;
(iii) the acceleration or occurrence of any event
requiring redemption of the Subordinated Obligations, or event which
provides increased voting rights to the Investors, or creates an event
of default under the Senior Credit Agreement or the Indenture as a
result of any change of control provision therein;
- 10 -
(iv) actual knowledge of the occurrence of a
breach by the Company or any Subsidiary of any event under Section 10
of the Preferred Stockholders Agreement or under the Warrant Agreement
which permits the Investors to require the Company to seek a sale of
the Company or its assets, or a refinancing of its indebtedness and
obligations in respect of the Preferred Stock, in each case, subject to
the terms hereof; or
(v) actual knowledge of any breach by an Investor
under this Agreement, or any Loan Document to which an Investor is a
party executed in connection with the Senior Credit Agreement, or the
Indenture.
(b) Prior to the commencement of any foreclosure action
against a Company or acceleration of the Senior Indebtedness by reason of an
event of default under the Senior Credit Agreement, or acceleration under the
Indenture, each of the Agent and the Trustee, as the case may be, agree to
notify the Investors of such event of default (although the failure to give such
notice shall not affect the validity of such acceleration or foreclosure
action).
7. Legend. The Companies and each Investor, for itself and its
successors and assigns as holders of Subordinated Obligations, covenant to cause
each agreement and instrument representing or evidencing any of the Subordinated
Obligations issued or executed by the Companies and either of them and held by
the Investors or any agreement securing the Subordinated Obligations including,
without limitation, the Preferred Stockholders Agreement, the Warrants, the
Warrant Agreement, the Preferred Stock and any other documents or instruments
evidencing Subordinated Obligations or Liens or security interests in favor of
the Investor in connection with the Subordinated Obligations from time to time,
if any, to have affixed upon it a legend which reads substantially as follows:
"This instrument/agreement is subject to a Standstill Agreement dated
as of May 19, 1997 among RADIO ONE, INC., the Subsidiaries of Radio
One, Inc. from time to time, the Investors (as defined therein), the
Senior Lenders (as defined therein) and NationsBank of Texas, N.A., as
Agent to the Senior Lenders (as defined therein) and individually as a
Lender, and United States Trust Company of New York, as Trustee for the
Senior Subordinated Noteholders (as defined therein). By its acceptance
of this instrument/agreement, the holder hereof agrees to be bound by
the provisions of such Standstill Agreement to the same extent that
each Investor is bound. In the event of any inconsistency between the
terms of this instrument/agreement and the terms of such Standstill
Agreement, the terms of the Standstill Agreement shall govern and be
controlling."
8. Limit on Right of Action. Each Investor, for itself and its
successors and assigns, agrees for the benefit of the holders of the Senior
Indebtedness that until indefeasible payment in full in cash of the Senior
Indebtedness and termination of the Senior Credit Agreement and the Indenture,
such Investor will not take any action to accelerate or demand payment by a
Company of the Subordinated Obligations, or exercise a right of redemption or a
put (to the Company) in respect of the Subordinated Obligations, or exercise any
of its remedies in respect of the Subordinated Obligations, to initiate any
Reorganization of, or litigation against, a Company, or to
- 11 -
foreclose or otherwise realize on any Lien, if any, given by a Company or any
other Person to secure the Subordinated Obligations; provided, however, that the
Investors may accelerate or exercise a right of redemption of the Subordinated
Obligations upon the earlier to occur of (i) a Reorganization of the Company
(provided that the Investors agree to rescind any acceleration or notice of
mandatory redemption resulting from a Reorganization which is an involuntary
proceeding dismissed or discharged within 60 days thereof), (ii) the
acceleration of the Primary Senior Indebtedness by the holders thereof, (iii)
the date which is 180 days after the date the Investors notify the Agent that
one of the events under subsections (a), (b) or (c) of Section 10 of the
Preferred Stockholders Agreement has occurred so long as such event is
continuing at the time of acceleration or exercise of the right of redemption or
a put (to the Company); provided further, however, after prior written notice to
Agent, the Investors may also initiate litigation against the Companies and the
Management Stockholders after either one of the events set forth in the
foregoing subsections (i) or (ii) have occurred. Notwithstanding the foregoing,
the Investors may (x) ▇▇▇ for specific performance of any of the covenants in
the Subordinated Agreements pursuant to their Rights thereunder so long as such
action is not in conflict with this Agreement, does not involve an acceleration
or an exercise of the right of mandatory redemption or a put (to the Company) of
the Subordinated Obligations, the creation of any liens, the payment of, or
determination of, any obligation for money damages or the payment of any sums
whatsoever to the Investors, and (y) take the actions contemplated by Section 10
of the Preferred Stockholders Agreement and Article VI or Article VIII of the
Warrant Agreement pursuant to their rights thereunder as in effect on the date
hereof; provided, however, that at such time as the Agent and/or the Senior
Lenders have commenced to actively pursue the exercise of their Rights under the
Loan Documents to conduct a sale of the Collateral securing the Primary Senior
Indebtedness, either pursuant to the exercise of foreclosure Rights, an
agreed-upon-sale, or deed-in-lieu of foreclosure, or otherwise, or the Trustee
on behalf of the Senior Subordinated Noteholders has commenced to actively
pursue the exercise of their Rights under the Senior Subordinated Notes or the
Indenture, then the Investors shall no longer have the right to take any of the
actions permitted to be taken by the Investors hereunder (other than
acceleration or exercise of a right to require the Company to redeem any or all
shares of Preferred Stock under Section 8.1 of the Preferred Stockholders
Agreement, as applicable, the actions permitted under Section 3.3 hereof, or
actions to perfect the Investors' rights to payment from any excess proceeds
arising from the Pledged Shares after payment in full of the Senior Indebtedness
and the termination of the Senior Credit Agreement and the Indenture) until such
date as the Agent and/or the Senior Lenders and/or the Trustee on behalf of the
Senior Subordinated Noteholders cease such efforts. If at any ti8. me the Agent,
the Senior Lenders or the Trustee, on behalf of the Senior Subordinated
Noteholder should begin or resume to actively pursue the exercise of their
Rights under the Loan Documents or the Indenture or the Subordinated Guaranties,
including the conducting of a sale of any of the Collateral by the Agent or any
Senior Lender, then the Investors shall again cease taking any actions permitted
hereunder. In the event of a dispute with respect to this provision, it shall be
the Investors' burden of proof that the Agent or the Senior Lenders or the
Trustee on behalf of the Senior Subordinated Noteholders have failed or ceased
to actively pursue the exercise of the Rights as described herein.
- 12 -
9. Intentionally Deleted.
10. Intentionally Deleted.
11. Additional Rights of Senior Lenders and the Senior
Subordinated Noteholders. If any Investor, in violation of this Agreement, shall
commence, prosecute or participate in any suit, action or proceeding against a
Management Stockholder or a Company, a Management Stockholder (relating to the
Senior Indebtedness) or a Company may interpose as a defense or plea the making
of this Agreement, the Agent may intervene on behalf of the Senior Lenders and
interpose a defense or plea in the Agent's name and/or the Senior Lenders' names
or in the name of a Management Stockholder or a Company, and the Trustee may
intervene on behalf of the Senior Subordinated Noteholders and interpose a
defense or plea in the Trustee's name and/or the Senior Subordinated
Noteholders' names or in the name of a Management Stockholder or a Company. If
any Investor shall attempt to enforce any security agreement, real estate
mortgage, deed of trust or any lien instrument or other encumbrance in violation
of the terms of this Agreement, the Agent and/or the Senior Lenders may by
virtue of this Agreement restrain the enforcement thereof in their name or in
the name of the Management Stockholders or the Companies. If any Investor
obtains any assets of a Company as a result of any administrative, legal or
equitable action, or otherwise, each such Investor agrees forthwith to pay,
deliver and assign to the Agent for the benefit of the Senior Lenders any such
assets for application to the Senior Indebtedness.
12. Companies' Additional Agreement. Each Company agrees with
Agent, the Senior Lenders, the Trustee and the Senior Subordinated Noteholders
that it will not, without the prior written consent of Agent and the Senior
Lenders', and the Trustee on behalf of the Senior Subordinated Noteholders,
execute or deliver any negotiable instrument as evidence of the Subordinated
Obligations or any part thereof, except as otherwise permitted by this
Agreement.
13. Rights to Amend Loan Documents and Discontinue Senior
Indebtedness. Agent and the Senior Lenders hereby reserve the right, in their
sole discretion, to modify, amend, waive or release any of the terms of the
Senior Credit Agreement, the Note, or any of its other Loan Documents, and the
Trustee on behalf of the Senior Subordinated Noteholders hereby reserves the
right, in its sole discretion, to modify, amend, waive or release any of the
terms of the Senior Subordinated Notes, or the Indenture or the Subordinated
Guaranties, in each case, at any time executed by the Management Stockholders or
the Companies or any other Person in connection with the Senior Indebtedness or
of any other document relative thereto and to exercise or refrain from
exercising any powers or rights which the Senior Lenders or the Senior
Subordinated Noteholders may have thereunder, and such modification, amendment,
waiver, release, exercise or failure to exercise shall not affect any of
Agent's, the Senior Lenders' the Trustee's or any Senior Subordinated
Noteholder's rights under this Agreement. Each Investor hereby agrees that Agent
and the Senior Lenders, and the Trustee, on behalf of the Senior Subordinated
Noteholders, may from time to time, in their sole discretion, amend the
instrument and agreements evidencing the Senior Indebtedness, grant extensions
of time of payment or performance and make compromises and grant waivers or make
settlements with the Companies and each of them or other creditors of the
Companies, without
- 13 -
affecting the agreements of the Investors, the Management Stockholders or the
Companies hereunder. If at any time hereafter, Agent and the Senior Lenders
shall, in their own judgment, determine to discontinue the extension of credit
to the Companies, they may do so. This Agreement shall continue in full force
and effect until the Senior Indebtedness shall have been indefeasibly paid in
full in cash and the Senior Credit Agreement and the Indenture have been
terminated. Notwithstanding the foregoing, Agent and the Senior Lenders agree
that they shall not modify any of its Loan Documents (a) to increase the rates
of interest payable thereunder above the Default Rate; provided that this clause
shall not restrict or prohibit the Agent or the Senior Lenders from charging
fees in connection with such Loan Documents, amendments or waivers relating
thereto and/or in connection with any over-advance facility that may be extended
from time to time in the Senior Lenders' discretion, (b) amend or modify the
Senior Credit Agreement so as to further restrict Radio One's ability to make
interest or dividend payments on the Subordinated Obligations, (c) to increase
the Senior Indebtedness in violation of Section 1.2 hereof or (d) extend the
maturity date past the maturity date of the Subordinated Obligations.
14. Compensation and Indemnity. Radio One shall reimburse the Trustee
promptly upon request for all reasonable out-of-pocket expenses incurred or made
by it, in connection with this Agreement. Such expenses shall include the
reasonable compensation and expenses, disbursements and advances of the
Trustee's agents, counsel, accountants and experts. Radio One shall indemnify
the Trustee against any and all loss, liability or expense (including attorneys'
fees) incurred by it in connection with the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim or
liability in connection with the acceptance, exercise or performance of any of
its powers or duties hereunder. The Trustee shall notify Radio One promptly of
any claim for which it may seek indemnity. Failure by the Trustee so to notify
Radio One shall not relieve Radio One of its obligations hereunder. Radio One
shall defend the claim and the Trustee may have separate counsel and Radio One
shall pay the fees and expenses of such counsel. Radio One need not reimburse
any expense or indemnify against any loss, liability or expense incurred by the
Trustee through the Trustee's own wilful misconduct, negligence or bad faith.
15. Further Assurances. Each Company, Management Stockholder and
Investor, for itself and its successors and assigns as holders of Subordinated
Obligations, covenant to execute and deliver to Agent, the Senior Lenders and
the Trustee for the benefit of the Senior Subordinated Noteholders such further
instruments and documents and take such further actions as Agent, on behalf of
the Senior Lenders and the Trustee, on behalf of the Senior Subordinated
Noteholders may from time to time reasonably request. Without limiting the
foregoing, in the event that all or part of the Senior Indebtedness is hereafter
refinanced, refunded or replaced through the Senior Lenders, the Senior
Subordinated Noteholders and/or any other lender(s) in accordance with this
Agreement, the Investors agree to enter into one or more new agreements with the
Senior Lenders, the Senior Subordinated Noteholders and/or such lender providing
for the subordination of the Subordinated Obligations to at least the same
extent, and upon substantially similar terms, as provided in this Agreement.
- 14 -
16. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand, telecopy or by any
form of delivery (including but not limited to United States Registered or
Certified Mail or Federal Express or other overnight delivery service) requiring
or providing for a signed receipt, and addressed as set forth on Schedule 15
hereto, or to such other address or addresses as the party to whom such notices
directed may have designated in writing to the other parties hereto. Notices
shall be deemed given upon the earlier to occur of (i) actual receipt by or
delivery to the addressee, or (ii) the third day following deposit thereof with
the U.S. Postal Service for delivery via certified or registered mail, postage
prepaid.
17. Successors; Continuing Effect, Etc. This Agreement is being entered
into for the benefit of the holders of the Senior Indebtedness and the
Subordinated Obligations, and their respective successors and assigns. This
Agreement shall be a continuing agreement and shall be irrevocable and shall
remain in full force and effect so long as there are both Senior Indebtedness
and Subordinated Obligations outstanding or committed to be advanced. The
liability of the Investors hereunder shall be reinstated and revived, and the
rights of the holders of the Senior Indebtedness shall continue, with respect to
any amount at any time paid on account of the Senior Indebtedness which shall
thereafter be required to be restored or returned by the holders of the Senior
Indebtedness in any Reorganization (including without limitation, any repayment
made pursuant to any provision of Chapter 5 of Title 11, United States Code),
all as though such amount had not been paid.
18. Entire Agreement; Amendment. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof, and no
modification or waiver of any provision of this Agreement shall in any event be
effective unless the same shall be in writing signed by Agent, on behalf of the
Senior Lenders, the Trustee, on behalf of the Senior Subordinated Noteholders,
and the Investors (unless such amendment or modification shall impose any
additional obligations upon the Companies, in which case such amendment or
modification shall also require execution by the Companies).
19. Applicable Law; Jurisdiction and Venue; Waiver of Jury Trial.
(a) APPLICABLE LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS AND DECISIONS OF THE STATE OF TEXAS.
FOR PURPOSES OF THIS SUBSECTION 18(a), THIS AGREEMENT SHALL BE DEEMED TO BE
PERFORMED AND MADE IN THE STATE OF TEXAS.
(b) JURISDICTION AND VENUE. EACH OF THE COMPANIES AND EACH
INVESTOR HEREBY AGREES THAT ALL ACTIONS OR PROCEEDINGS INITIATED BY SUCH PERSON
AND ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT SHALL BE LITIGATED IN
DALLAS COUNTY, TEXAS OR THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF TEXAS OR, IF THE AGENT OR THE SENIOR LENDERS INITIATE SUCH ACTION,
IN ADDITION TO THE FOREGOING COURTS, ANY COURT IN WHICH THE AGENT OR THE SENIOR
LENDERS, THE TRUSTEE ON BEHALF OF THE SENIOR SUBORDINATED NOTEHOLDERS SHALL
INITIATE SUCH ACTION, TO
- 15 -
THE EXTENT SUCH COURT HAS JURISDICTION. EACH OF THE COMPANIES AND EACH INVESTOR
HEREBY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR PROCEEDING COMMENCED BY THE AGENT OR THE SENIOR LENDERS, OR THE
TRUSTEE ON BEHALF OF THE SENIOR SUBORDINATED NOTEHOLDERS IN ANY OF SUCH COURTS,
AND HEREBY AGREES THAT PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER
PROCESS OR PAPERS ISSUED THEREIN MAY BE SERVED IN THE MANNER PROVIDED FOR
NOTICES HEREIN, AND AGREES THAT SERVICE OF SUCH SUMMONS AND COMPLAINT OR OTHER
PROCESS OR PAPERS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
PERSON AT THE ADDRESS TO WHICH NOTICES ARE TO BE SENT PURSUANT TO SECTION 15.
EACH OF THE COMPANIES AND THE INVESTORS WAIVES ANY CLAIM THAT DALLAS COUNTY,
TEXAS OR THE NORTHERN DISTRICT OF TEXAS IS AN INCONVENIENT FORUM OR AN IMPROPER
FORUM BASED ON LACK OF VENUE. TO THE EXTENT PROVIDED BY LAW, SHOULD ANY OF THE
COMPANIES OR ANY INVESTOR, AFTER BEING SO SERVED, FAIL TO APPEAR OR ANSWER TO
ANY SUMMONS, COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THE NUMBER OF DAYS
PRESCRIBED BY LAW AFTER THE MAILING THEREOF, SUCH PERSON SHALL BE DEEMED IN
DEFAULT AND AN ORDER AND/OR JUDGMENT MAY BE ENTERED BY THE COURT AGAINST SUCH
PERSON AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR PAPERS.
THE EXCLUSIVE CHOICE OF FORUM FOR EACH OF THE COMPANIES AND EACH INVESTOR SET
FORTH IN THIS SUBSECTION 18(B) SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT,
BY AGENT AND/OR THE SENIOR LENDERS OR THE TRUSTEE ON BEHALF OF THE SENIOR
SUBORDINATED NOTEHOLDERS OF ANY JUDGMENT OBTAINED IN ANY OTHER FORUM OR THE
TAKING, BY THE AGENT AND/OR THE SENIOR LENDERS OR THE TRUSTEE ON BEHALF OF THE
SENIOR SUBORDINATED NOTEHOLDERS OF ANY ACTION TO ENFORCE THE SAME IN ANY OTHER
APPROPRIATE JURISDICTION, AND EACH OF THE COMPANIES AND THE INVESTORS HEREBY
WAIVES THE RIGHT TO COLLATERALLY ATTACK ANY SUCH JUDGMENT OR ACTION.
(c) WAIVER OF RIGHT TO JURY TRIAL. EACH OF AGENT, THE SENIOR
LENDERS, THE TRUSTEE ON BEHALF OF THE SENIOR SUBORDINATED NOTEHOLDERS, THE
COMPANIES AND EACH INVESTOR ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT OR WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
THEREBY WOULD BE BASED UPON DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, THE
PARTIES AGREE THAT ANY LAWSUIT ARISING OUT OF ANY SUCH CONTROVERSY WILL BE TRIED
IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
20. Miscellaneous. This Agreement may be signed in any number of
counterparts which, when taken together, shall constitute one and the same
document. The headings in this Agreement are for convenience of reference only
and shall not alter or otherwise affect the meaning hereof. In the event of any
conflict between the provisions of the Agreement and the provisions of any of
the
- 16 -
Loan Documents, the Senior Subordinated Notes, the Indenture, the Subordinated
Guaranties, or any of the Subordinated Agreements, the provisions of this
Agreement shall control. The Companies shall reimburse the holders of the Senior
Indebtedness upon demand for all reasonable costs and expenses (including
reasonable attorney's fees and disbursements) paid or incurred by the holders of
the Senior Indebtedness in connection with any enforcement of this Agreement in
favor of the holders of the Senior Indebtedness.
21. FINAL AGREEMENT. THIS WRITTEN AGREEMENT REPRESENTS THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
22. No Personal Liability of Management Stockholders. Notwithstanding
anything herein to the contrary, neither ▇▇▇▇▇ ▇. ▇▇▇▇▇, III, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
nor ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall have personal liability under this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
- 17 -
NATIONSBANK OF TEXAS, N.A., as
Agent
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------
Title: Vice President
-----------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually
/s/ ▇▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, individually
/s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, III, individually
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Title: Assistant Vice President
-----------------------
IN WITNESS WHEREOF, each of the undersigned has caused this
Agreement to be executed by its duly authorized representative as of the day and
year first above written.
RADIO ONE, INC., a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
RADIO ONE LICENSES, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
ALTA SUBORDINATED DEBT
PARTNERS III, L.P.
By: Alta Subordinated Debt Management III,
L.P., its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------
Title: General Partner
-----------------------
BANCBOSTON INVESTMENTS, INC.
By: /s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
------------------------
Title: Vice President
-----------------------
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SYNCOM CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇ ▇▇▇▇▇
------------------------
Title: President
-----------------------
ALLIANCE ENTERPRISE
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------
Title: Executive Vice President
------------------------
GREATER PHILADELPHIA VENTURE
CAPITAL CORPORATION, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
Title: Manager
-----------------------
OPPORTUNITY CAPITAL
CORPORATION
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇
--------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------
Title: President
-----------------------
CAPITAL DIMENSIONS VENTURE
FUND, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------
Title: Vice President
-----------------------
TSG VENTURES INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------
Title: Principal
-----------------------
FULCRUM VENTURE CAPITAL
CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Title: President
-----------------------
EXHIBIT A
I. Series A Preferred Stock
--------------------------------- ----------------------------------------------
Investor Principal Amount (or Liquidation Value) of
Preferred Stock
--------------------------------- ----------------------------------------------
$_______________
--------------------------------- ----------------------------------------------
$_______________
--------------------------------- ----------------------------------------------
II. Series B Preferred Stock
--------------------------------- ----------------------------------------------
Investor Principal Amount (or Liquidation Value) of
Preferred Stock
--------------------------------- ----------------------------------------------
$_______________
--------------------------------- ----------------------------------------------
$_______________
--------------------------------- ----------------------------------------------
III. Warrantholders
--------------------------------- ----------------------------------------------
Name of Holder Number of Warrants Held
--------------------------------- ----------------------------------------------
_______________
--------------------------------- ----------------------------------------------
_______________
--------------------------------- ----------------------------------------------
Schedule 15
Notice Addresses
if to the Companies, to the following address:
c/o Radio One, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
if to the Senior Lenders, to the following address:
NationsBank of Texas, N.A.
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Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and to:
▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.
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▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
If to the Senior Subordinated Noteholders, to the following address:
United States Trust Company of New York
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Attention: Corporate Trust Division
and to:
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
One Citicorp Center
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
if to the Investors, to the following addresses:
Alta Subordinated Debt Partners III, L.P.
c/o Alta Subordinated Debt Management III, L.P.
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Burr, Egan, Deleage & Co.
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BancBoston Investments, Inc.
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Syncom Capital Corporation
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Alliance Enterprise Corporation
Attention: ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Greater Philadelphia Venture Capital Corporation, Inc.
Attention: ▇▇▇▇ ▇▇▇▇▇▇, General Manager
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Opportunity Capital Corporation
Attention: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Capital Dimensions Venture Fund, Inc.
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, President
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
TSG Ventures Inc. (formerly Equico Capital Corporation)
Attention: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fulcrum Venture Capital Corporation
Attention: ▇▇▇▇▇ ▇. Argrette
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APPENDIX A
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"Affiliate" means, with respect to any specified Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For purposes of this definition,
"control of" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with") any Person means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
"Collateral" means all assets of Radio One and the Restricted Subsidiaries and
all Equity Interests of Radio One and of each of the Restricted Subsidiaries,
whether now owned or hereinafter acquired.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any capital lease having
substantially the same economic effect as any of the foregoing).
"Liquidation Value" has the meaning specified for such term in Radio One's
Certificate of Amended and Restated Certificate of Incorporation.
"Permitted Acquisitions" means acquisitions by Radio One and/or the Restricted
Subsidiaries made with the consent of the Lenders and made pursuant to
acquisition agreements previously approved in writing by the Lenders.
"Person" means an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, governmental authority or other entity of whatever nature.
"Redemption Events" meaning of which is specified in the Preferred Stockholders
Agreement.
"Rights" means rights, remedies, powers and privileges.
i
