WAIVER AND CONSENT TO CREDIT AGREEMENT
Exhibit 4.1
THIS WAIVER AND CONSENT TO CREDIT AGREEMENT (this “Waiver and Consent”), dated as of
May 14, 2007 is entered into among RADIO ONE, INC., a Delaware corporation (the
“Borrower”), the lenders listed on the signature pages hereof as Lenders (the
“Lenders”), and WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent (the
“Administrative Agent”).
BACKGROUND
A. The Borrower, the Lenders, Bank of America, N.A., as syndication agent, Credit Suisse,
Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated, and SunTrust Bank, as co-documentation agents,
and the Administrative Agent are parties to that certain Credit Agreement, dated as of June 13,
2005 (as the same has been amended, restated or modified from time to time, the “Credit
Agreement”). The terms defined in the Credit Agreement and not otherwise defined herein shall
be used herein as defined in the Credit Agreement.
B. The Borrower has requested a consent from the Lenders to extend the due date for (a) the
delivery of the Borrower’s consolidated financial statements for the fiscal year ending December
31, 2006 and the fiscal quarter ending March 31, 2007 as required in accordance with Sections
5.01(a) and 5.01(b) of the Credit Agreement, respectively and (b) the delivery of the Borrower’s
Compliance Certificates for the fiscal year ending December 31, 2006 and the fiscal quarter ending
March 31, 2007 as required under Section 5.01(d) of the Credit Agreement concurrently with the
financial statements described in clause (a) above.
C. Furthermore, the Borrower has requested a limited waiver from the Lenders of (a) any
Default arising solely out of the Borrower’s failure to comply with the Interest Coverage Ratio
financial condition covenant for the fiscal quarter ending March 31, 2007 as required under Section
6.01(a) of the Credit Agreement and (b) any Default under Section 7.01(o) of the Credit Agreement
arising solely out of the Borrower’s failure to timely deliver its annual report on SEC Form 10-K,
together with the financial statements and any certificates related thereto, for the fiscal year
ending December 31, 2006 and its quarterly report on SEC Form 10-Q, together with the financial
statements and any certificates related thereto, for the fiscal quarter ending March 31, 2007, in
each case as required under the 2001 Senior Subordinated Debt Documents and the 2005 Senior
Subordinated Debt Documents, so long as (i) such failure under clause (a) or (b)
does not constitute an Event of Default under (and as such term is defined in) the 2001 Senior
Subordinated Debt Documents or 2005 Senior Subordinated Debt Documents, as applicable, and (ii)
none of the 2001 Senior Subordinated Note Holders, the 2005 Senior Subordinated Note Holders or any
trustee on the behalf of such holders shall have caused such Indebtedness to become due, or to
require the prepayment, redemption or defeasance thereof, prior to its scheduled maturity or
exercise any other rights and remedies related thereto.
NOW, THEREFORE, in consideration of the covenants, conditions and agreements hereafter set
forth, and for other good and valuable consideration, the receipt and adequacy of which are all
hereby acknowledged, the parties hereto covenant and agree as follows:
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1. CONSENT. Subject to the satisfaction of the conditions of effectiveness set forth
in Section 5 hereof, the Required Lenders hereby consent to the following:
(a) to the extension of the due date to May 31, 2007 for the delivery of the Borrower’s
audited consolidated financial statements for the fiscal year ending December 31, 2006 required in
accordance with Section 5.01(a) of the Credit Agreement;
(b) to the extension of the due date to May 31, 2007 for delivery of the Borrower’s
consolidated financial statements for the fiscal quarter ending March 31, 2007 required in
accordance with Section 5.01(b) of the Credit Agreement;
(c) to the extension of the due date to May 31, 2007 for delivery of the Borrower’s Compliance
Certificate for the fiscal year ending December 31, 2006 required in accordance with Section
5.01(d) of the Credit Agreement; and
(d) to the extension of the due date to May 31, 2007 for delivery of the Borrower’s Compliance
Certificate for the fiscal quarter ending March 31, 2007 required in accordance with Section
5.01(d) of the Credit Agreement.
2. WAIVER. Subject to the satisfaction of the conditions of effectiveness set forth
in Section 5 hereof, the Required Lenders hereby waive the following Defaults
(collectively, the “Waived Defaults”) for a period beginning as of the date hereof until
the earlier of July13, 2007 or the occurrence of a Default (other than a Waived Default):
(a) any Event of Default under Section 7.01(d) of the Credit Agreement arising solely out of
the Borrower’s failure to comply with the Interest Coverage Ratio financial condition covenant in
Section 6.01(a) of the Credit Agreement for the fiscal quarter ending March 31, 2007; and
(b) any Default under Section 7.01(o) of the Credit Agreement arising solely out of the
Borrower’s failure to timely deliver its annual report on SEC Form 10-K, together with the
financial statements and any certificates related thereto, for the fiscal year ending December 31,
2006 and its quarterly report on SEC Form 10-Q, together with the financial statements and any
certificates related thereto, for the fiscal quarter ending March 31, 2007, in each case as
required under the 2001 Senior Subordinated Debt Documents and the 2005 Senior Subordinated Debt
Documents, so long as (i) such failure described under clause (a) above or this clause
(b) does not constitute an Event of Default under (and as such term is defined in) the 2001
Senior Subordinated Debt Documents or 2005 Senior Subordinated Debt Documents, as applicable, (ii)
such failure described under this clause (b) does not result in an Event of Default (as
defined in the 2001 Senior Subordinated Debt Documents and in the 2005 Senior Subordinated Debt
Documents) pursuant to a cross default provision, and (iii) none of the 2001 Senior Subordinated
Note Holders, the 2005 Senior Subordinated Note Holders or any trustee on the behalf of such
holders shall have caused such Indebtedness to become due, or to require the prepayment, redemption
or defeasance thereof, prior to its scheduled maturity or exercise any other rights and remedies
related thereto.
3. LIMITATIONS. Except as expressly stated herein, the consent described in
Section 1 hereof and the waiver described in Section 2 hereof shall not be
construed as a consent
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to or waiver of any Default which may now exist or hereafter occur or any violation of any
term, covenant or provision of the Credit Agreement or any other Loan Document. Except as
expressly stated in that certain Consent to Credit Agreement dated as of March 30, 2007 by and
among the Borrower, the certain lenders listed on the signature pages thereto and the
Administrative Agent (the “Existing Consent”), all rights and remedies of the
Administrative Agent and the Lenders are hereby expressly reserved with respect to any such
Default. This Waiver and Consent does not affect or diminish the right of the Administrative Agent
and the Lenders to require strict performance by the Borrower and each Guarantor of each provision
of any Loan Document to which it is a party, except as expressly provided herein and in the
Existing Consent. All terms and provisions of, and all rights and remedies of, the Administrative
Agent and the Lenders under the Loan Documents shall continue in full force and in effect and are
hereby confirmed and ratified in all respects.
4. REPRESENTATIONS AND WARRANTIES TRUE; NO EVENT OF DEFAULT. By its execution and
delivery hereof, the Borrower represents and warrants that, as of the Effective Date (as defined
herein) and after giving effect to the consent set forth in the foregoing Section 1 and the
waiver set forth in the foregoing Section 2:
(a) the representations and warranties contained in the Credit Agreement and the other Loan
Documents are true and correct on and as of the Effective Date as made on and as of such date,
except to the extent that such representations and warranties specifically refer to an earlier
date, in which case they shall be true and correct as of such earlier date; and
(b) no event has occurred and is continuing which constitutes a Default or Event of Default
other than the Waived Defaults.
5. CONDITIONS OF EFFECTIVENESS. This Waiver and Consent shall not be effective until
the satisfaction of each of the following conditions precedent:
(a) the representations and warranties set forth in Section 4 of this Waiver and
Consent shall be true and correct;
(b) the Administrative Agent shall have received counterparts of this Waiver and Consent
executed by the Required Lenders; and
(c) the Administrative Agent shall have received counterparts of this Waiver and Consent
executed by the Borrower and Guarantors.
6. REFERENCE TO THE CREDIT AGREEMENT AND OTHER LOAN DOCUMENTS.
(a) Upon and during the effectiveness of this Waiver and Consent, each reference in the Credit
Agreement and the other Loan Documents to “this Agreement”, “hereunder”, or words of like import
shall mean and be a reference to the Credit Agreement or the other Loan Documents, as the case may
be, as affected by this Waiver and Consent.
(b) Except as expressly set forth herein, this Waiver and Consent shall not by implication or
otherwise limit, impair, constitute an amendment of, or otherwise affect the rights
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or remedies of the Administrative Agent or the Lenders under the Credit Agreement or any of
the other Loan Documents, and shall not alter, modify, amend, or in any way affect the terms,
conditions, obligations, covenants, or agreements contained in the Credit Agreement or the other
Loan Documents, all of which are hereby ratified and affirmed in all respects and shall continue in
full force and effect. Nothing herein shall be deemed to entitle the Borrower, Guarantors or
Lenders to a consent to, or a waiver, amendment, modification or other change of, any of the terms,
conditions, obligations, covenants or agreements contained in the Credit Agreement or any other
Loan Documents in similar or different circumstances.
(c) Notwithstanding that such consent is not required hereunder, each of the Guarantors hereby
consents to the execution and delivery of this Waiver and Consent and reaffirm its respective
obligations under the Guarantee and Collateral Agreement.
7. COSTS AND EXPENSES. The Borrower shall be obligated to pay the costs and expenses
of the Administrative Agent in connection with the preparation, reproduction, execution and
delivery of this Waiver and Consent and the other instruments and documents to be delivered
hereunder.
8. EXECUTION IN COUNTERPARTS. This Waiver and Consent may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original but all such counterparts together shall
constitute but one and the same instrument and signature pages may be detached from multiple
separate counterparts and attached to a single counterpart so that all signature pages are
physically attached to the same document. For purposes of this Waiver and Consent, a counterpart
hereof (or signature page thereto) signed and transmitted by any Person party hereto to the
Administrative Agent (or its counsel) by facsimile machine, telecopier or electronic mail is to be
treated as an original. The signature of such Person thereon, for purposes hereof, is to be
considered as an original signature, and the counterpart (or signature page thereto) so transmitted
is to be considered to have the same binding effect as an original signature on an original
document. This Waiver and Consent shall become effective when the Administrative Agent has
received counterparts of this Waiver and Consent executed by the Borrower and the Required Lenders
and each of the conditions precedent set forth in Section 5 have been satisfied (the
“Effective Date”).
9. GOVERNING LAW; BINDING EFFECT. This Waiver and Consent shall be governed by and
construed in accordance with the laws of the State of New York. This Waiver and Consent shall be
binding upon the Borrower and each Lender and their respective successors and assigns.
10. HEADINGS. Section headings in this Waiver and Consent are included herein for
convenience of reference only and shall not constitute a part of this Waiver and Consent for any
other purpose.
11. ENTIRE AGREEMENT. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AFFECTED
BY THIS WAIVER AND CONSENT, REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AS TO THE SUBJECT
MATTER THEREIN AND HEREIN AND MAY NOT BE CONTRADICTED
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BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BETWEEN THE PARTIES.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver and Consent to be duly executed
as of the date first above written.
| BORROWER: RADIO ONE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Exec Vice Pres & CFO | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| OTHER GUARANTORS (for purposes of Section 6 hereof): RADIO ONE, INC. RADIO ONE LICENSES, LLC XXXX BROADCASTING COMPANY RADIO ONE OF DETROIT, LLC RADIO ONE OF ATLANTA, LLC ROA LICENSES, LLC RADIO ONE OF CHARLOTTE, LLC CHARLOTTE BROADCASTING, LLC RADIO ONE OF NORTH CAROLINA, LLC RADIO ONE OF AUGUSTA, LLC RADIO ONE OF BOSTON, INC. RADIO ONE OF BOSTON LICENSES, LLC RADIO ONE OF INDIANA, LLC RADIO ONE OF TEXAS I, LLC RADIO ONE OF TEXAS II, LLC BLUE CHIP BROADCASTING, LTD. BLUE CHIP BROADCASTING LICENSES, LTD. SATELLITE ONE, L.L.C. XXXXX-XXXXXXXX BROADCAST PROPERTIES, INC. RADIO ONE OF DAYTON LICENSES, LLC NEW MABLETON BROADCASTING CORPORATION RADIO ONE MEDIA HOLDINGS, LLC |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Exec Vice Pres & CFO | |||
| RADIO ONE OF INDIANA, L.P. |
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| By: | Radio One, Inc., its general partner |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Exec Vice Pres & CFO | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| RADIO ONE OF TEXAS, L.P. |
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| By: | Radio One of Texas I, LLC, its general partner |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Exec Vice Pres & CFO | |||
| SYNDICATION ONE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Exec Vice Pres & CFO | |||
| MAGAZINE ONE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Exec Vice Pres & CFO | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| ADMINISTRATIVE AGENT, ISSUING BANK AND REQUIRED LENDERS: WACHOVIA BANK, NATIONAL ASSOCIATION, as Administrative Agent, Issuing Bank and as a Lender |
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| By: | /s/ Xxxx Xxxxx | |||
| Name: | Xxxx Xxxxx | |||
| Title: | Director | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| BANK OF AMERICA, N.A., as Syndication Agent, Issuing Bank and as a Lender |
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| By: | /s/ Xxxx Shiplev | |||
| Name: | Xxxx Shiplev | |||
| Title: | Senior Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| CREDIT SUISSE, CAYMAN ISLANDS BRANCH, as Co-Documentation Agent and as a Lender |
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| By: | /s/ XXXXXX XXXX | |||
| Name: | XXXXXX XXXX | |||
| Title: | VICE PRESIDENT | |||
| By: | /s/ XXXXXX X. XXXXXXX | |||
| Name: | XXXXXX X. XXXXXXX | |||
| Title: | ASSOCIATE | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX INCORPORATED, as Co-Documentation Agent |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| SUNTRUST BANK, as Co-Documentation Agent and as a Lender |
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| By: | /s/ E. Xxxxxxx Xxxxxx | |||
| Name: | E. Xxxxxxx Xxxxxx, XX | |||
| Title: | Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| BANK OF SCOTLAND, as a Lender |
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| By: | /s/ Xxxxx Xxxxx | |||
| Name: | XXXXX XXXXX | |||
| Title: | VICE PRESIDENT | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| CALYON, New York Branch, as a Lender |
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| By: | /s/ Xxxxx Xxxxxxxx | |||
| Name: | Xxxxx Xxxxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxx XxXxxxxxx | |||
| Name: | Xxxx XxXxxxxxx | |||
| Title: | Managing Director | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| COŐPERATIEVE CENTRALE RAIFFEISEN- BOERENLEENBANK B.A., “RABOBANK NEDERLAND”, NEW YORK BRANCH, as a Lender |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Executive Director | |||
| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Executive Director | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| Credit Industriel et Commercial, as a Lender |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Managing Director | |||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | Managing Director | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| Diamond Springs Trading LLC, as a Lender |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | Assistant vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| GENERAL ELECTRICAL CAPITAL CORPORATION, as a Lender |
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| By: | /s/ Xxxx Xxxxxxx | |||
| Name: | XXXX XXXXXXX | |||
| Title: | DULY AUTHORIZED SIGNATORY | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| Grand Central Asset Trust, BDC Series, as a Lender |
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| By: | /s/ Xxxxx XxxXxxxxxxxxx | |||
| Name: | Erigh XxxXxxxxxxxxx | |||
| Title: | Assistant Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| JPMORGAN CHASE BANK, N.A., as a Lender |
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| By: | /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| XXXXXXX XXXXX CAPITAL CORPORATION, as a Lender |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| Mizuho Corporate Bank, Ltd., as a Lender |
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| By: | /s/ Xxxxxxx Xxxxxxx | |||
| Name: | Xxxxxxx Xxxxxxx | |||
| Title: | Deputy General Manager | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| The Royal Bank of Scotland plc, as a Lender |
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| By: | /s/ Xxxxxx Xxxx | |||
| Name: | Xxxxxx Xxxx | |||
| Title: | Managing Director | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| Xxxxxxxxx McLaren CLO, Ltd. |
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| By: | Xxxxxxxxx Capital Partners, LLC as its Collateral Manager, as a Lender |
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| By: | /s/ Xxxxx Xxxx | |||
| Name: | Xxxxx Xxxx | |||
| Title: | Managing Director | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| U.S. BANK NATIONAL ASSOCIATION, as a Lender |
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| By: | /s/ Xxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxx | |||
| Title: | Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
| Xxxxxxx Bank, National Association, as a Lender |
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| By: | /s/ Xxxx Xxxxxxxx | |||
| Name: | Xxxx Xxxxxxxx | |||
| Title: | Vice President | |||
WAIVER AND CONSENT TO CREDIT AGREEMENT — SIGNATURE PAGE
