Exhibit 10.51
FIFTH AMENDMENT TO PREFERRED STOCKHOLDERS' AGREEMENT
This FIFTH AMENDMENT TO PREFERRED STOCKHOLDERS' AGREEMENT (this
"Amendment"), dated as of February 26, 1999, by and among the investors listed
as Series A Investors on Schedule A hereto (the "Series A Preferred Investors"),
the investors listed as Series B Investors on Schedule B hereto (the "Series B
Preferred Investors", and together with the Series A Preferred Investors, the
"Investors"), Radio One, Inc., a Delaware corporation (the "Company"), Radio One
Licenses, Inc., a Delaware corporation ("ROL"), and Xxxxxx X. Xxxxxxx
("Xxxxxxx"), Xxxxxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxx X. Xxxxx III ("Xxxxx")
(Xxxxxxx, Xxxxxx and Xxxxx are hereinafter collectively referred to as the
"Management Stockholders," and together with the Company and ROL as the
"Interested Parties," and each an "Interested Party").
WHEREAS, the Series A Preferred Investors, the Series B Preferred
Investors, the Company, ROL and the Management Stockholders entered into a
Preferred Stockholders' Agreement dated as of May 14, 1997, as amended by that
certain First Amendment, dated as of June 30, 1998, that certain Second
Amendment, dated as of November 23, 1998, that certain Third Amendment, dated
as of December 23, 1998, and that certain Fourth Amendment, dated as of
December 31, 1998 (the "Amended Original Agreement"); and
WHEREAS, the Company intends to enter into a Merger Agreement (the "Merger
Agreement") dated as of March 30, 1999, by and among the Company, ROA Merger
Subsidiary, Inc., Alta Subordinated Debt Partners III, L.P. ("Alta"), Allied
Capital Corporation, Allied Investment Corporation, Syndicated Communications
Venture Partners II, L.P. ("Syncom"), Xxxx Xxxxxxxxx Xxxxx ("Xxxxx") and Xxxxxx
X. Xxxxxxx, III ("Xxxxxxx") (collectively, the "Sellers") and Radio One of
Atlanta, Inc. ("ROA"), which Merger Agreement will be substantially in the form
attached hereto as Exhibit A and pursuant to which the Company will acquire all
of the capital stock of ROA in exchange for, in the case of ROA Class A Common
Stock, capital stock of the Company, and in the case of ROA Class B Common
Stock, capital stock of the Company and cash through a reverse subsidiary merger
of ROA Merger Subsidiary, Inc., with and into the Company (the "ROA
Acquisition"); and
WHEREAS, Alta and Syncom are stockholders of the Company, Xxxxx is Chief
Operating Officer of the Company, Xxxxxxx is a stockholder, director, and Chief
Executive Officer and President of the Company; and
WHEREAS, in connection with the closing of the transactions contemplated by
the Merger Agreement, the Company desires to enter into an Amended and Restated
Credit Agreement, dated as of February 26, 1999, by and among the Company,
Several Lenders from time to time thereto, NationsBank, N.A. and First Union
National Bank (the "Nationsbank Agreement"); and
WHEREAS, the Company has agreed to grant to Xxxxx X. Xxxxxxx, the Chief
Financial Officer and Executive Vice President of the Company ("Xxxxxxx"), as a
restricted stock award subject to certain vesting provisions, 1.503 shares of
the Company's Class C Non-Voting Common Stock (the "Stock Award"); and
WHEREAS, the Company desires to amend the Amended Original Agreement to
increase certain permitted corporate overhead expense and capital expenditure
limits contained therein; and
WHEREAS, certain approvals, consents and amendments to the Amended Original
Agreement are required in order for the Company to enter into the Merger
Agreement and to take certain actions in connection with the ROA Acquisition, to
enter into the Amended and Restated Credit Agreement and to take certain actions
in connection therewith, to make the Stock Award to Xxxxxxx, and to increase
permitted corporate overhead expense and capital expenditure limits; and
WHEREAS, the Investors are willing to provide such approvals and consents
and to amend the Amended Original Agreement to provide for modifications to the
covenants subject to performance and observance in full of each of the
covenants, conditions and other terms set forth below;
NOW, THEREFORE, the parties hereto agree as follows:
1. ROA Acquisition and Merger Agreement. The parties hereto hereby consent
pursuant to Section 6.10 and Section 6.11 of the Amended Original Agreement
to the ROA Acquisition.
2. Formation of ROA Licenses, Inc. The parties hereto hereby consent pursuant
to Section 6.4 of the Amended Original Agreement to the formation of ROA
Licenses, Inc., a Delaware corporation, for the purpose of acting as a
License Subsidiary (as such term is defined in the Amended Original
Agreement) holding the licenses, permits and authorizations required for
and/or used in the ownership and operation of the radio stations to be
acquired in the ROA Acquisition. It is understood and agreed that, after
the consummation of the ROA Acquisition, ROA Licenses, Inc. will be wholly
owned by the Company's then direct subsidiary, ROA.
3. Amended and Restated Credit Agreement.
(a) The parties hereto hereby consent to the Amended and Restated Credit
Agreement and to the incurrence of indebtedness in the maximum principal
amount of $100,000,000 on the terms and conditions contemplated by such
Amended and Restated Credit Agreement, together with any and all interest,
fees and other charges as contemplated thereby and documents executed in
connection with such Amended and Restated Credit Agreement.
(b) The Amended Original Agreement is hereby amended to delete Section
6.1(b) thereof in its entirety and replace it with the following:
"(b) Indebtedness in a principal amount not in excess of $100,000,000 (the
"Nationsbank Debt") outstanding under the Amended and Restated Credit
Agreement dated as of February 26, 1999 by and among the Company,
NationsBank N.A., as Administrative Agent, and the several lenders from
time to time party thereto, as such agreement may be amended, modified,
replaced, renewed or otherwise changed except as respect to the maximum
principal amount of such Indebtedness or its rate of amortization (the
"Nationsbank Loan Agreement") and any refinancing of the Indebtedness under
the NationsBank Loan Agreement on terms substantially similar or more
favorable to the Company than the terms of the NationsBank Loan Agreement,
provided that such refinancing shall not (i) increase the interest rates to
a rate greater than the rate provided for under the terms of the
NationsBank Loan Agreement, (ii) materially change the rate of amortization
of the NationsBank Loan Agreement, (iii) extend the maturity of the
NationsBank Debt beyond its current maturity or (iv) increase the principal
amount of the NationsBank Debt in an amount in excess of $100,000,000;
provided, that the Borrower is not otherwise in violation of this clause
(b)."
4. Stock Award. The parties hereto hereby consent pursuant to Section 6.11
of the Amended Original Agreement to the Stock Award to Xxxxxxx.
5. Amendments to Expense/Expenditure Limits. The Amended Original Agreement
is hereby amended as follows:
(a) Section 4.2 of the Amended Original Agreement is hereby amended by
substituting the number "$3,500,000" for the number "$2,850,000".
(b) Section 4.3 of the Agreement is hereby deleted in its entirety and is
replaced with the following:
"Except for those capital expenditures described on Appendix A hereto, the
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Company will not make, incur, assume or otherwise become liable for Capital
Expenditures in excess of the sum of (i) $1,000,000 New Radio Market (as
defined in the NationsBank Loan Agreement) and $250,000 for each radio
station acquired by the Company after February 28, 1999, and (ii)$1,000,000
for any fiscal period, except that the amount shall be $3,500,000 for
fiscal year 1999; provided, however, that if the Company does not incur
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Capital Expenditures in an aggregate amount of $1,000,000 during any fiscal
year period, the Company may add such unused portion of permitted Capital
Expenditures to the amount of the Capital Expenditure allotment for the
following fiscal year period."
6. Representations and Warranties. In order to induce the Investors to enter
into this Amendment, Company represents and warrants to the Investors that
the representation and warranties contained in Section 2 of the Amended
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Original Agreement are true, correct and complete in all material respects
on and as of the date hereof to the same extent as though made on and as of
such date, except for changes that were consented to in writing by the
Investors.
7. Miscellaneous.
(a) Ratification and Confirmation of Agreement. Except as specifically
amended hereby, the Amended Original Agreement shall remain in full force
and effect and is hereby ratified and confirmed, and the execution,
delivery and performance of this Amendment shall not, except as expressly
provided herein, operate as an amendment of any provision of the Amended
Original Agreement or as a waiver of any right, power or remedy of the
Investors under the Amended Original Agreement. Without limiting the
generality of the foregoing, the amendments and consents set forth in
Section 1 through Section 5 above shall be limited precisely as set forth
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above, and nothing in this Amendment shall be deemed (i) to constitute a
waiver of compliance by the Company with respect to any other provision or
condition of the Amended Original Agreement or (ii) to prejudice any right
or remedy that the Investors may now have or may have in the future under
or in connection with the Amended Original Agreement.
(b) Headings. Section and subsection headings in this Amendment are
included herein for convenience of reference only and shall not constitute
a part of this Amendment for any other purpose or be given any substantive
effect.
(c) Governing Law and Advice of Counsel. THIS AMENDMENT SHALL BE DEEMED TO
BE A CONTRACT MADE UNDER, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. EACH OF THE INVESTORS AND THE
INTERESTED PARTIES HEREBY REPRESENTS, WARRANTS AND AGREES THAT THE
NEGOTIATION OF THIS AMENDMENT HAS TAKEN PLACE IN THE COMMONWEALTH OF
MASSACHUSETTS. EACH OF THE INTERESTED PARTIES HEREBY ACKNOWLEDGES THAT IT
HAS CAREFULLY REVIEWED AND UNDERSTANDS THE TERMS OF THIS AMENDMENT, HAS
OBTAINED AND CONSIDERED THE ADVICE OF COUNSEL WITH RESPECT TO SUCH TERMS
AND HAS HAD AN OPPORTUNITY TO FULLY NEGOTIATE SUCH TERMS.
(d) Counterparts. This Amendment may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall
be an original, but all such counterparts shall together constitute one and
the same instrument. Each counterpart may consist of a number of copies of
this Amendment, each of which may be signed by less than all of the parties
hereto, but together all such copies are signed by all of the parties
hereto.
(e) Order of Precedence. This Amendment amends the Amended Original
Agreement and wherever reference is made in the Amended Original Agreement
to "the Agreement" or "this Agreement," such reference shall refer to the
Amended Original Agreement as amended hereby. The terms of this Amendment
shall control any conflict between the Amended Original Agreement and this
Amendment. Otherwise, all other terms and conditions of the Amended
Original Agreement shall remain in full force and effect.
SCHEDULE A
Syncom Capital Corporation
Alliance Enterprise Corporation
Opportunity Capital Corporation
Medallion Capital, Inc.
TSG Ventures, L.P.
Fulcrum Venture Capital Corporation
Xxxxxx X. Xxxxxxx, III
(successor-in-interest to Greater Philadelphia Venture Capital Corporation,
Inc.)
SCHEDULE B
Alta Subordinated Debt Partners III, L.P.
BancBoston Investments Inc.
Xxxxx X. Xxxxxx
IN WITNESS WHEREOF, the undersigned have executed this Fifth Amendment to
Preferred Stockholders' Agreement as a sealed instrument as of the day and year
first above written.
COMPANY:
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RADIO ONE, INC.
By: /s/ Xxxxxx X. Xxxxxxx, III
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Name: Xxxxxx X. Xxxxxxx, III
Title: President
SUBSIDIARY:
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RADIO ONE LICENSES, INC.
By: /s/ Xxxxxx X. Xxxxxxx, III
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Name: Xxxxxx X. Xxxxxxx, III
Title: President
[Signature Page to Fifth Amendment to Preferred Stockholders' Agreement]
SERIES B PREFERRED INVESTORS:
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ALTA SUBORDINATED DEBT
PARTNERS III, L.P.
By: Alta Subordinated Debt
Management III, L.P., its
General Partner
By: /s/ Xxxxxx XxXxxxxx
---------------------------------
Name: Xxxxxx XxXxxxxx
Title: General Partner
BANCBOSTON INVESTMENTS INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
XXXXX X. XXXXXX
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, individually
[Signature Page to Fifth Amendment to Preferred Stockholders' Agreement]
SERIES A PREFERRED INVESTORS:
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SYNCOM CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: President
ALLIANCE ENTERPRISE CORPORATION
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President
OPPORTUNITY CAPITAL CORPORATION
By: /s/ J. Xxxxx Xxxxxxxx
---------------------------------
Name: J. Xxxxx Xxxxxxxx
Title: President
MEDALLION CAPITAL, INC.
By: /s/ Xxxx Xxxxxxxxx
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Name: Xxxx Xxxxxxxxx
Title: President
TSG VENTURES L.P.
as successor-in-interest to TSG Ventures Inc.
BY: TSGVI Associates, Inc., its General
Partner
By: /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: President
[Signature Page to Fifth Amendment to Preferred Stockholders' Agreement]
FULCRUM VENTURE CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: President
XXXXXX X. XXXXXXX, III.
/s/ Xxxxxx X. Xxxxxxx III
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Xxxxxx X. Xxxxxxx III, as successor-in-interest to
Greater Philadelphia Venture Capital Corporation,
Inc.
MANAGEMENT STOCKHOLDERS:
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XXXXXX X. XXXXXXX, III
/s/ Xxxxxx X. Xxxxxxx III
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Xxxxxx X. Xxxxxxx III, individually
XXXXXXXXX X. XXXXXX
/s/ Xxxxxxxxx X. Xxxxxx
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Xxxxxxxxx X. Xxxxxx, individually
XXXXX X. XXXXX III
/s/ Xxxxx X. Xxxxx III
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Xxxxx X. Xxxxx III, individually
[Signature Page to Fifth Amendment to Preferred Stockholders' Agreement]
