SECOND AMENDMENT TO CREDIT AGREEMENT AND WAIVER
Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT AND WAIVER
THIS SECOND AMENDMENT TO CREDIT AGREEMENT AND WAIVER (this “Second Amendment”), dated
as of September 14, 2007, is among RADIO ONE, INC., a Delaware corporation (the
“Borrower”), the several Lenders (as such term is defined in the hereinafter described
Credit Agreement) parties to this Second Amendment, and WACHOVIA BANK, NATIONAL ASSOCIATION, as
Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”).
R E C I T A L S:
A. The Borrower, the Administrative Agent, Bank of America, N.A., as Syndication Agent, and
Credit Suisse, Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated, and SunTrust Bank, as
Co-Documentation Agents, and the several Lenders parties thereto entered into that certain Credit
Agreement dated as of June 13, 2005 (as amended pursuant to that First Amendment to Credit
Agreement, dated as of April 26, 2006, and as the same may be further amended, restated or modified
from time to time, the “Credit Agreement”). Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in the Credit Agreement.
B. The Borrower has advised the Administrative Agent that it desires to amend the Credit
Agreement.
C. The Required Lenders parties to this Second Amendment are willing to agree to the
amendments, subject to the performance and observance in full of each of the covenants, terms and
conditions, and in reliance upon all of the representations and warranties of the Borrower, set
forth herein.
NOW, THEREFORE, in consideration of the premises and the covenants, terms and conditions, and
in reliance upon the representations and warranties, in each case contained herein, the parties
hereto agree hereby as follows:
ARTICLE I
Amendments
Section 1.01 Amendment to Article I of the Credit Agreement — Definitions. Article I
of the Credit Agreement, Definitions, is hereby amended as follows:
(a) Amendment to Definition of “Applicable Rate”. The definition of “Applicable Rate”
in Article I of the Credit Agreement is hereby amended by deleting the pricing grid set forth
therein and substituting the following pricing grid in its stead:
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 1
| ABR | LIBOR | Commitment | ||||||||||
| Total Leverage Ratio: | Spread | Spread | Fee Rate | |||||||||
Greater than or equal to 7.00 to 1.00 |
1.250 | % | 2.250 | % | 0.375 | % | ||||||
Greater than or equal to 6.50 to 1.00
but less than 7.00 to 1.00 |
1.000 | % | 2.000 | % | 0.375 | % | ||||||
Greater than or equal to 6.00 to 1.00
but less than 6.50 to 1.00 |
0.500 | % | 1.500 | % | 0.375 | % | ||||||
Greater than or equal to 5.50 to 1.00
but less than 6.00 to 1.00 |
0.250 | % | 1.250 | % | 0.375 | % | ||||||
Greater than or equal to 5.00 to 1.00
but less than 5.50 to 1.00 |
0.000 | % | 1.000 | % | 0.300 | % | ||||||
Greater than or equal to 4.50 to 1.00
but less than 5.00 to 1.00 |
0.000 | % | 0.750 | % | 0.300 | % | ||||||
Less than 4.50 to 1.00 |
0.000 | % | 0.625 | % | 0.250 | % | ||||||
(b) Addition of Definition of “Internet Operations Subsidiary”. The definition
of “Internet Operations Subsidiary” is hereby added in its entirety to Article I of the Credit
Agreement in alphabetical order as follows:
“Internet Operations Subsidiary” means a direct or indirect
Subsidiary of the Borrower that (i) is an Unrestricted Subsidiary, (ii)
conducts and operates its business primarily as an internet-related business
(together with such business and activities as may be directly related
thereto) and (iii) is either a Wholly Owned Subsidiary or a majority-owned
Subsidiary as permitted in accordance with the terms of this Agreement.
(c) Addition of Definition of “Second Amendment Effective Date”. The definition of
“Second Amendment Effective Date” is hereby added in its entirety to Article I of the Credit
Agreement in alphabetical order as follows:
“Second Amendment Effective Date” means September 14, 2007.
(d) Amendment to Definition of “Unrestricted Subsidiary”. The definition of
“Unrestricted Subsidiary” in Article I of the Credit Agreement is hereby amended to read in its
entirety as follows:
“Unrestricted Subsidiary” means (a) Reach Media, Radio One
Cable Holdings, Inc., Home Plate Suites, LLC and the Internet Operations
Subsidiary so long as the conditions contained in clauses (b)(i)
through and including (b)(iv) below are satisfied at all times as to
such Person respectively and (b) any Subsidiary of the Borrower that is
formed or acquired after the Effective Date, which is funded through
Investments as permitted by Section 6.08(d) (as designated by the
Board of Directors of the Borrower, as provided below) and any direct or
indirect Subsidiary of an Unrestricted Subsidiary; provided that at the time
of the Investment by the Borrower in such Unrestricted Subsidiary and at all
times thereafter (i) neither the Borrower nor any of the Restricted
Subsidiaries provides credit support for any Indebtedness of such
Unrestricted Subsidiary (including any undertaking, agreement or instrument
evidencing such
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 2
Indebtedness) other than Investments permitted by Section 6.08,
(ii) such Subsidiary is not liable, directly or indirectly, with respect to
any Indebtedness other than Unrestricted Subsidiary Indebtedness, (iii) such
Unrestricted Subsidiary is not a party to any agreement, contract,
arrangement or understanding at such time with the Borrower or any
Restricted Subsidiary of the Borrower except for transactions with
Affiliates permitted by the terms of this Agreement unless the terms of any
such agreement, contract, arrangement or understanding are no less favorable
to the Borrower or such Restricted Subsidiary than those that might be
obtained at the time from Persons who are not Affiliates of the Borrower and
(iv) such Unrestricted Subsidiary does not own any Equity Interest in or
Indebtedness of any Subsidiary of the Borrower that has not theretofore been
and is not simultaneously being designated an Unrestricted Subsidiary. Any
such designation by the Board of Directors of the Borrower shall be
evidenced to the Administrative Agent by delivering to the Administrative
Agent a board resolution giving effect to such designation and a certificate
executed by the President, a Vice President or a Financial Officer of the
Borrower certifying that such designation complies with the foregoing
conditions.
Section 1.02 Amendment to Section 2.06(a) of the Credit Agreement. Section 2.06(a) of
the Credit Agreement is hereby amended to delete the number “$500,000,000” in the proviso thereof
and substitute the number “$300,000,000” in its stead.
Section 1.03 Amendment to Section 2.11(d) of the Credit Agreement. Section 2.11(d) of
the Credit Agreement is hereby amended to add a sentence to the end of such Section, such sentence
to read in its entirety as follows:
Notwithstanding the foregoing or anything else in this Agreement or the
other Loan Documents to the contrary, within ten Business Days after receipt
by the Borrower or any Restricted Subsidiary of the Net Cash Proceeds from
the Disposition of their Stations located in Louisville and Dayton, the
Borrower shall repay the Term Loan in an amount not less than $100,000,000,
such repayment to be applied pro-rata across all remaining unpaid Term Loan
installments as required by Section 2.11(g).
Section 1.04 Amendment to Section 3.02 of the Credit Agreement. Section 3.02 of the
Credit Agreement is hereby amended to read in its entirety as follows:
Section 3.02 Authorization; Enforceability. The Transactions are
within the Borrower’s corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. This Agreement has been
duly executed and delivered by the Borrower and constitutes a legal, valid and
binding obligation of the Borrower, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
Laws affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at Law. The
Loan
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 3
Documents have been duly executed and delivered by the Loan Parties that are
party to each such Loan Document, and each constitutes a legal, valid and binding
obligation of each such Loan Party, enforceable in accordance with its terms,
subject to applicable bankruptcy, insolvency, reorganization, moratorium or other
Laws affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at Law.
Section 1.05 Amendment to Section 3.17 of the Credit Agreement. Section 3.17 of the
Credit Agreement is hereby amended to read in its entirety as follows:
Section 3.17 Use of Proceeds. The proceeds of the Loans shall be used
only (a) to refinance the Existing Senior Facilities, (b) for working capital,
Capital Expenditures made in the ordinary course of business and other lawful
corporate purposes (including any Restricted Payment made as permitted hereunder),
(c) for direct or indirect Investments permitted hereunder (including any direct or
indirect committed Investments in TV One) and acquisitions permitted hereunder (d)
to pay fees and expenses related to the Transactions, and (e) to redeem, invest in,
purchase or otherwise buy the 2001 Senior Subordinated Notes in accordance with the
terms of Section 6.06, provided that, notwithstanding the foregoing or anything else
in this Agreement and the other Loan Documents to the contrary, not more than
$150,000,000 of the proceeds of the Loans will be used for the purposes set forth in
this subsection (e). Letters of Credit will be issued only to support lawful
corporate purposes. The Borrower is not engaged and will not engage, principally or
as one of its important activities, in the business of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of the
Federal Reserve System of the United States), or extending credit for the purpose of
purchasing or carrying margin stock. Following the application of the proceeds of
each Borrowing or drawing under each Letter of Credit, not more than 25% of the
value of assets (either of the Borrower only or of the Borrower and its Subsidiaries
on a consolidated basis) subject to the provisions of Sections 6.03 and
6.05 or subject to any restriction contained in any agreement or instrument
between Borrower and any Lender or any Affiliate of any Lender relating to
Indebtedness and within the scope of clauses (f) and (o) of
Article VII will be margin stock.
Section 1.06 Amendment to Opening Paragraph of Section 4.02 of the Credit Agreement.
The opening three-line paragraph of Section 4.02 of the Credit Agreement is hereby amended to read
in its entirety as follows:
Section 4.02 Each Credit Event. The obligation of each Lender to make
a Loan on the occasion of any Borrowing that increases the outstanding amount of
Loans hereunder, and of the Issuing Bank to issue, amend, renew or extend any Letter
of Credit that increases the outstanding LC Exposure, is subject to the satisfaction
of the following conditions:
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 4
Section 1.07 Amendment to Section 4.02 of the Credit Agreement. Section 4.02 of the
Credit Agreement is hereby amended to add a new subsection (d) to be inserted after subsection (c)
in Section 4.02 but before the final sentence of Section 4.02, to read in its entirety as follows:
(d) The Borrower is in compliance, and will be in compliance after giving
effect to such Borrowing, or such issuance, amendment, renewal and extension of any
Letter of Credit, with the 2001 Senior Subordinated Debt Documents (including,
without limitation, the 2001 Senior Subordinated Notes Indenture) and the 2005
Senior Subordinated Debt Documents (including, without limitation, the 2005 Senior
Subordinated Notes Indenture), and all documentation executed in connection with any
junior or subordinate financing incurred in accordance with the terms of Section
6.05, including, without limitation, the provisions of the indentures related
thereto.
Section 1.08 Amendment to Section 5.08 of the Credit Agreement. Section 5.08 of the
Credit Agreement is hereby amended and restated to read in its entirety as follows:
Section 5.08 Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used only (a) to refinance the Existing Senior Facilities, (b) for
working capital, capital expenditures made in the ordinary course of business and
other lawful corporate purposes (including any Restricted Payment made as permitted
hereunder), (c) for direct or indirect Investments permitted hereunder (including
any direct or indirect committed Investments in TV One) and Acquisitions permitted
hereunder, (d) to pay fees and expenses related to the Transactions and (e) to
redeem, invest in, purchase or otherwise buy the 2001 Senior Subordinated Notes in
accordance with the terms of Section 6.06, provided that, notwithstanding the
foregoing or anything else in this Agreement and the other Loan Documents to the
contrary, not more than $150,000,000 of the proceeds of the Loans will be used for
the purposes set forth in this subsection (e). No part of the proceeds of any Loan
will be used, whether directly or indirectly, for any purpose that entails a
violation of any of the Regulations of the Board, including Regulations T, U and X.
Letters of Credit will be issued only to support lawful corporate purposes.
Section 1.09 Amendment to Section 6.01(a) of the Credit Agreement. Section 6.01(a) of
the Credit Agreement is hereby amended and restated to read in its entirety as follows:
Section 1.10 (a) Interest Coverage Ratio. The Borrower will not permit the Interest
Coverage Ratio at any time during any period set forth below to be less than the ratio set forth
opposite such period:
| Period | Ratio | |||
From the Second Amendment Effective Date through and
including June 30, 2008 |
1.60 to 1.00 | |||
From July 1, 2008 through and including December 31, 2009 |
1.75 to 1.00 | |||
From January 1, 2010 through and including December 31, 2010 |
2.00 to 1.00 | |||
From January 1, 2011 and thereafter |
2.25 to 1.00 | |||
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 5
Section 1.11 Amendment to Section 6.01(b) of the Credit Agreement. Section
6.01(b) of the Credit Agreement is hereby amended and restated to read in its entirety as follows:
(b) Total Leverage Ratio. The Borrower will not permit the Total
Leverage Ratio at any time during any period set forth below to be more than the
ratio set forth opposite such period:
| Period | Ratio | |||
From the Second Amendment Effective Date through and
including March 31, 2008 |
7.75 to 1.00 | |||
From April 1, 2008 through and including September 30, 2008 |
7.50 to 1.00 | |||
From October 1, 2008 through and including June 30, 2010 |
7.25 to 1.00 | |||
From July 1, 2010 through and including September 30, 2011 |
6.50 to 1.00 | |||
From October 1, 2011 and thereafter |
6.00 to 1.00 | |||
Section 1.12 Amendment to Section 6.05 of the Credit Agreement. Section 6.05 of
the Credit Agreement is hereby amended and restated to delete the word “and” from the end of
subsection (d) thereof, delete the “.” from the end of subsection (e) thereof and substitute “;
and” in its stead and to add a new subsection (f) after subsection (e) of Section 6.05 but prior to
the final paragraph of Section 6.05 to read in its entirety as follows:
(f) so long as (i) no Default shall have occurred and be continuing or would
result therefrom, (ii) all such Equity Interests in the Internet Operations
Subsidiary that are owned by the Borrower or any Restricted Subsidiary are subject
to a first lien security interest in accordance with the provisions of Section
5.09(a), and (iii) the Borrower is otherwise in compliance with the limitations
set forth in Section 6.08 hereof, Dispositions of (A) Equity Interests of
the Internet Operations Subsidiary, provided that in no event shall the Borrower
own, directly or indirectly, less than 51% of (I) the total Equity Interests of the
Internet Operations Subsidiary and (II) voting control of the Internet Operations
Subsidiary, and (B) assets, business or other property owned by the Borrower or any
Restricted Subsidiary and permitted to be invested pursuant to Section
6.08(g).
Section 1.13 Amendment to Section 6.06 of the Credit Agreement. Section 6.06 of the
Credit Agreement is hereby amended to add two sentences to the end of such Section, such two
sentences to read in their entirety as follows:
The Internet Operations Subsidiary may not declare and pay dividends to its
equity holders unless the Borrower (or a Restricted Subsidiary) receives at least
its pro rata share of such dividend (based on equity ownership). The Borrower may
not redeem, repurchase, purchase, establish a sinking fund with
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 6
respect to, make any payments into a sinking fund or otherwise buy the
principal amount of any of the 2001 Senior Subordinated Notes, the 2005 Senior
Subordinated Notes or other Material Indebtedness that is subordinated and junior to
any part of the Obligations, provided that, (1) so long as there
exists no Default both immediately before and after giving effect to any such
purchase, repurchase, redemption or sinking fund payment, the Borrower may enter
into any refinancing permitted by Section 6.02, and (2) so long as (A) there
exists no Default both immediately before and after giving effect to any such
purchase, repurchase, redemption or sinking fund payment, and (B) no more than
$150,000,000 of the proceeds of the Loans are used for such purpose, the Borrower
may purchase, repurchase, redeem or buy the 2001 Senior Subordinated Notes (or make
a sinking fund payment for such purpose).
Section 1.14 Amendment to Section 6.08 of the Credit Agreement. Section 6.08 of the
Credit Agreement is hereby amended and restated to delete the word “and” from the end of subsection
(e) thereof, delete the “.” from the end of subsection (f) thereof and substitute “; and” in its
stead and to add a new subsection (g) after subsection (f) of Section 6.08 to read in its entirety
as follows:
(g) Investments of cash and/or assets in the Internet Operations Subsidiary, so
long as (i) there exists no Default both immediately before and after giving effect
to each such Investment, (ii) the Borrower, directly or indirectly, holds not less
than 51% of (A) the total equity interests and (B) voting control of the Internet
Operations Subsidiary, (iii) all such cash Investments in the Internet Operations
Subsidiary by the Borrower and its Restricted Subsidiaries in the aggregate do not
exceed $30,000,000 over the term of this Agreement, and (iv) investments of assets
(other than cash) are limited to those editorial and business related assets
associated with Giant Magazine.
Section 1.15 Amendment to Section 6.09 of the Credit Agreement. Section 6.09 of the
Credit Agreement is hereby amended and restated to delete the word “or” from the end of subsection
(b)(vi) thereof, delete the “.” from the end of subsection (b)(vii) thereof and substitute “; or”
in its stead and to add a new subsection (b)(viii) after subsection (b)(vii) of Section 6.09 to
read in its entirety as follows:
(viii) transactions with the Internet Operations Subsidiary that comply with
Section 6.08 and do not violate any of the other provisions of this
Agreement.
Section 1.16 Schedule 3.16 to the Credit Agreement. Schedule 3.16 to the
Credit Agreement is hereby deleted in its entirety and the attached Schedule 3.16 is hereby
substituted in its stead.
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 7
ARTICLE II
Waiver
Section 2.01 Waiver of Defaults. Subject to the satisfaction of the conditions of
effectiveness set forth in Article III of this Second Amendment and the other terms hereof, the
Required Lenders hereby waive any and each Event of Default under Section 7.01(d) of the Credit
Agreement arising solely out of the Borrower’s failure to comply with any of Sections 6.01(a) and
6.01(b) of the Credit Agreement during the fiscal quarters ending March 31, 2007 and June 30, 2007
(the “Waived Defaults”).
ARTICLE III
Conditions Precedent
Section 3.01 Conditions Precedent. The parties hereto agree that this Second
Amendment and the amendment to the Credit Agreement contained herein shall not be effective until
the satisfaction of each of the following conditions precedent:
(a) Execution and Delivery of this Second Amendment. The Administrative Agent shall
have received a copy of this Second Amendment executed and delivered by each of the applicable Loan
Parties and by all the Required Lenders and each of the conditions set forth in clauses (b)
through (e) below shall have been satisfied.
(b) Resolutions. The Administrative Agent shall have received a copy of resolutions
from the Borrower and each Guarantor which authorize the execution, delivery, and performance by
the Borrower and the Guarantors of this Second Amendment and the other Loan Documents to be
executed in connection therewith and herewith to which the Borrower or such Guarantor is a party in
form and substance acceptable to the Administrative Agent and its counsel.
(c) Incumbency Certificates. The Administrative Agent shall have received a copy of
certificates of incumbency certified by the Borrower, and each Guarantor certifying the names of
each Financial Officer of the Borrower and each Guarantor authorized to sign this Second Amendment
and each of the other Loan Documents to which the Borrower and each Guarantor is or is to be a
party (including the certificates contemplated herein) together with specimen signatures of such
Financial Officers, in form and substance acceptable to the Administrative Agent and its counsel.
(d) Attorney Opinion. The Administrative Agent shall have received a favorable
written opinion of counsel to the Borrower (addressed to the Administrative Agent and the Lenders
and dated as of the Second Amendment and Waiver Effective Date (defined below)), in the form agreed
to by the parties hereto, and covering such matters relating to the Borrower, this Second
Amendment, the enforceability of the Credit Agreement as amended by this Second Amendment and the
Loan Documents, the 2001 Subordinated Notes Indenture, the 2005 Subordinated Notes Indenture and
the other transactions contemplated hereby as the Administrative Agent and its counsel shall
reasonably request. The Borrower hereby requests such counsel to deliver such opinion.
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 8
(e) Representations and Warranties. Each of the representations and warranties made
in this Second Amendment shall be true and correct on and as of the Second Amendment and Waiver
Effective Date as if made on and as of such date, both before and after giving effect to this
Second Amendment.
(f) Amendment Fee. The Borrower shall have paid to the Administrative Agent for the
account of each Lender timely executing this Second Amendment (including the Administrative Agent
in its capacity as a Lender), a nonrefundable amendment fee equal to a percentage, which percentage
will be agreed to by and among the Borrower, the Administrative Agent and the applicable Lenders of
the sum of each such Lender’s (i) Revolving Commitment plus (ii) outstanding Term Loan.
(g) Fees and Expenses. The Borrower shall have paid the invoiced fees, costs and
out-of-pocket expenses incurred by counsel to the Administrative Agent in connection with the
preparation, negotiation, execution and delivery of this Second Amendment and all transactions
contemplated hereby and thereby.
(h) Other Documents and Instruments. The Administrative Agent shall have received, in
form and substance satisfactory to the Administrative Agent and its counsel, such other documents,
certificates and instruments as the Administrative Agent shall require.
ARTICLE IV
Representations and Warranties
Section 4.01 Representations and Warranties. To induce the Administrative Agent and
the several Lenders parties hereto to enter into this Second Amendment and to grant the amendments
contained herein, the Borrower represents and warrants to the Administrative Agent and the Lenders
as follows:
(a) Authorization; No Contravention. The execution, delivery and performance by the
applicable Loan Parties of this Second Amendment have been duly authorized by all necessary
partnership, corporate or limited liability company action, as applicable, and do not and will not
(i) contravene the terms of any Charter Documents of any Loan Party, (ii) conflict with or result
in any breach or contravention of, or the creation of any Lien under, any document evidencing any
Obligation to which any Loan Party is a party or any order, injunction, writ or decree of any
Governmental Authority to which any Loan Party is a party or its property is subject, or (iii)
violate any requirement of law.
(b) Governmental Authorization; Consents. No approval, consent, exemption,
authorization or other action by, or notice to, or filing with or approvals required under state
blue sky securities laws or by any Governmental Authority is necessary or required in connection
with the execution, delivery, performance or enforcement of this Second Amendment. No consent of
any Person is required in connection with the execution by the Borrower of this Second Amendment
and/or the performance by the Borrower of its rights and obligations under the Credit Agreement as
amended by this Second Amendment.
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 9
(c) No Default. After giving effect to this Second Amendment and the Waived Defaults,
no Default or Event of Default exists under any of the Loan Documents. No Loan Party is in default
under or with respect to (i) its charter documents or (ii) any Material Indebtedness of such
Person. The execution, delivery and performance of this Second Amendment shall not result in any
default under any Material Indebtedness of any Loan Party in any respect. The Borrower is in full
compliance with all terms and provisions of the 2001 Senior Subordinated Debt Documents and the
2005 Senior Subordinated Debt Documents, and no default or breach thereunder will exist after
giving effect to this Second Amendment or the performance by the Borrower of its rights and
obligations under the Credit Agreement as amended by this Second Amendment.
(d) Binding Effect. This Second Amendment and the Credit Agreement as amended hereby
constitute the legal, valid and binding obligations of the Loan Parties that are parties thereto,
enforceable against such Loan Parties in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors’ rights generally or by equitable principles of general applicability.
(e) Representations and Warranties. The representations and warranties set forth in
the Credit Agreement and the other Loan Documents are true and correct in all material respects on
and as of the Second Amendment and Waiver Effective Date, after giving effect to the amendments
contemplated in this Second Amendment, as if such representations and warranties were being made on
and as of the Second Amendment and Waiver Effective Date, in each case except to the extent any
such representation or warranty is stated to relate to an earlier date, in which case such
representation or warranty shall have been true and correct on and as of such earlier date.
ARTICLE V
Miscellaneous
Section 5.01 Ratification of Loan Documents. Except for the specific amendments
expressly set forth in this Second Amendment, the terms, provisions, conditions and covenants of
the Credit Agreement and the other Loan Documents remain in full force and effect and are hereby
ratified and confirmed, and the execution, delivery and performance of this Second Amendment shall
not in any manner operate as a waiver of, consent to or amendment of any other term, provision,
condition or covenant of the Credit Agreement or any other Loan Document.
Section 5.02 Fees and Expenses. The Borrower agrees to pay promptly following demand
therefor all reasonable costs and expenses of the Administrative Agent in connection with the
preparation, reproduction, execution, and delivery of this Second Amendment, and any other
documents prepared in connection herewith or therewith, including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative Agent.
Section 5.03 Headings. Article, section and subsection headings in this Second
Amendment are included herein for convenience of reference only and shall not constitute a part of
this Second Amendment for any other purpose or be given any substantive effect.
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 10
Section 5.04 Applicable Law. THIS SECOND AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAW PRINCIPLES.
Section 5.05 Counterparts and Second Amendment and Waiver Effective Date. This Second
Amendment 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 an original, but all
such counterparts together shall constitute but one and the same instrument; 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. This Second Amendment shall become
effective when the Administrative Agent has received counterparts of this Second Amendment executed
by the Borrower and the Required Lenders and each of the conditions precedent set forth in
Article III above has been satisfied (the “Second Amendment and Waiver Effective
Date”).
Section 5.06 Affirmation of Guarantees. Notwithstanding that such consent is not
required thereunder, each of the Guarantors hereby consent to the execution and delivery of this
Second Amendment and reaffirm their respective obligations under the Guarantee and Collateral
Agreement.
Section 5.07 Confirmation of Loan Documents and Liens. As a material inducement to
the Lenders to agree to amend the Credit Agreement as set forth herein, the Borrower and Guarantors
hereby (i) acknowledge and confirm the continuing existence, validity and effectiveness of the Loan
Documents to which they are parties, including, without limitation the Guarantee and Collateral
Agreement and the Liens granted under the Guarantee and Collateral Agreement, (ii) agree that,
except as otherwise expressly provided in this Second Amendment, the execution, delivery and
performance of this Second Amendment shall not in any way release, diminish, impair, reduce or
otherwise adversely affect such Loan Documents and Liens and (iii) acknowledge and agree that the
Liens granted under the Guarantee and Collateral Agreement secure (A) the payment of the
Obligations under the Loan Documents in the same priority as on the date such Liens were created
and perfected, and (B) the performance and observance by the Borrower and the other Loan Parties of
the covenants, agreements and conditions to be performed and observed by each under the Credit
Agreement, as amended hereby.
Section 5.08 References to the Credit Agreement. Upon and during the effectiveness of
this Second Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, or
words of like import shall mean and be a reference to the Credit Agreement, as amended by this
Second Amendment.
Section 5.09 Final Agreement. THIS SECOND AMENDMENT, TOGETHER WITH THE CREDIT
AGREEMENT AND OTHER LOAN DOCUMENTS, 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.
SECOND AMENDMENT TO CREDIT AGREEMENT - PAGE 11
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be duly executed
and delivered by their proper and duly authorized officers effective as of the Second Amendment and
Waiver Effective Date.
| BORROWER: RADIO ONE, INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Executive Vice President and Chief Financial Officer |
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| OTHER GUARANTORS (for purposes of Article V hereof): RADIO ONE OF INDIANA, L.P. |
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| By: | Radio One, Inc., its general partner | |||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Executive Vice President and Chief Financial Officer |
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| SYNDICATION ONE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Executive Vice President and Chief Financial Officer |
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| MAGAZINE ONE, INC. |
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| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Xxxxx X. Xxxxxxx | ||||
| Executive Vice President and Chief Financial Officer |
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| RADIO ONE, INC. RADIO ONE LICENSES, LLC |
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| 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 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 | |||
| Xxxxx X. Xxxxxxx | ||||
| Executive Vice President and Chief Financial Officer |
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| ADMINISTRATIVE AGENT, SYNDICATION AGENT, CO-DOCUMENTATION AGENTS, ISSUING BANK AND 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 | |||
