Exhibit 10.10
REIMBURSEMENT AND PRIORITY AGREEMENT
This REIMBURSEMENT AND PRIORITY AGREEMENT (as the same may be amended,
supplemented or otherwise modified, renewed or replaced from time to time, the
"Agreement") is entered into as of December 24, 1997 by and among Big City
Radio, Inc., a Delaware corporation (the "Borrower"), Xxxxxx Xxxxxxxxx
("Xxxxxxxxx"), Big City Radio-NYC, L.L.C., Big City Radio-CHI, L.L.C., Big City
Radio-LA, L.L.C., WRKL Rockland Radio, L.L.C. and Odyssey Traveling Billboards,
Inc. (collectively, the "Guarantors").
RECITALS
WHEREAS, the Borrower has entered into an Amended and Restated Credit
Agreement dated as of the date hereof, with Chase Manhattan Bank, as Agent (the
"Lender") (said agreement, as it may be further amended, supplemented or
otherwise modified, renewed or replaced from time to time in accordance with its
terms being the "Credit Agreement"; capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Credit Agreement)
pursuant to which the Lender has made available to the Borrower a $35,000,000
secured revolving credit facility;
WHEREAS, pursuant to the Guarantee dated as of May 30, 1996, as
amended by the First Amendment to the Guarantee dated as of the date hereof,
issued by Subotnick in favor of the Lender (the "Guarantee"), Subotnick has
provided to the Lender an unconditional guaranty of payment of up to $6 million
of the Obligations; and
WHEREAS, Subotnick, the Guarantors and the Borrower desire to set
forth their relative rights and remedies regarding reimbursement of the payments
made by Subotnick under the Guarantee (such payments by Subotnick being referred
to herein as a "Contribution") and for the priority of any such payments.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt of which is hereby
acknowledged, the Borrower, Subotnick and the Guarantors hereby agree as
follows:
SECTION 1. REIMBURSEMENT. In the event Subotnick makes any
Contribution, Subotnick shall be entitled to a reimbursement by the Borrower for
the entire amount of such Contribution (the "Reimbursement Obligation"), plus
interest on any such amount at the effective rate under the Credit Agreement
accruing from the date any Contribution is made until all Reimbursement
Obligations have been paid in full. The Reimbursement Obligation, plus accrued
interest thereon, shall be payable in full immediately upon satisfaction of all
Obligations. Notwithstanding the
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foregoing, nothing set forth herein shall be construed to indicate that, except
as set forth in Section 3 of the Guarantee, Subotnick has waived any subrogation
or contribution rights against the Borrower upon the making of a Contribution
whether at law or otherwise and the Borrower and the Guarantors acknowledge and
agree that Subotnick shall succeed to all rights and remedies of the Lender
under the Loan Documents upon payment in full of the Obligations, the terms and
provisions of which are expressly incorporated herein.
SECTION 2. PRIORITY OF SUBOTNICK. The Guarantors hereby agree that all
of the rights of Subotnick referred to in this Agreement shall have priority
over any right of the Guarantors, whether direct or indirect, by contribution,
subrogation, reimbursement, indemnification or otherwise, to demand any payment,
contribution or reimbursement whatsoever from the Borrower for payments made by
the Guarantors under the Guarantee until such time as any and all Reimbursement
Obligations, plus all accrued interest, have been repaid to Subotnick in full
and Subotnick has no further obligations under the Guarantee, and until such
time as the Guarantors shall not be entitled to exercise any such rights against
the Borrower.
SECTION 3. NO DUTY TO THE GUARANTORS. Except for duties expressly
stated to be applicable to the Lender under the Loan Documents and non-waivable,
mandatory duties imposed by law, the Guarantors hereby acknowledge and agree
that (i) Subotnick has no duties to the Guarantors with respect to the method,
manner and timing of the exercise or nonexercise of any of Subotnick's rights to
recover payment of any Reimbursement Obligation and (ii) to the extent that any
such duties may exist, they are hereby waived.
SECTION 4. GUARANTEE PAYMENT. In the event that any of the Guarantors
is required to make a payment to the Lender pursuant to the Loan Documents, the
Guarantors hereby waive any and all rights, whether direct or indirect, or by
contribution, subrogation, reimbursement, indemnification or otherwise, to
demand any payment, contribution or reimbursement whatsoever from Subotnick
under the Guarantee as a result of such payment by any of the Guarantors.
SECTION 5. SUBORDINATION. No Reimbursement Obligations payable by the
Borrower pursuant to the terms hereof shall be paid until all Obligations then
due and payable by the Borrower to the Lender, are paid in full and the Lender
has no obligation to extend further Credit to the Borrower. Nothing contained
in this Agreement shall affect the Obligations or the obligations of any party
hereto to the Lender under the Credit Agreement or any other Loan Document.
SECTION 6. NON-EXCLUSIVITY. Notwithstanding anything in this
Agreement to the contrary, the rights accorded to Subotnick hereunder shall be
in addition to, and not in lieu of, any rights that Subotnick may have to be
reimbursed for all Reimbursement Obligations at common law, in equity, by
separate agreement or otherwise; provided, that none of such rights may be
exercised until the
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Obligations have been fully satisfied, and all such rights are subject to the
terms and provisions of the Loan Documents.
SECTION 7. CONTINUED EFFECTIVENESS. The rights of Subotnick under
this Agreement shall continue to be effective, or be reinstated, as the case may
be, if any payment made hereunder, or any part thereof, on account of any of the
Obligations is at any time rescinded or at any time must otherwise be restored
or returned by Subotnick upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or any substantial part of their property, or
otherwise, all as though such payments had not been made.
SECTION 8. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 9. SUCCESSORS AND ASSIGNS; AMENDMENTS. This Agreement shall
be binding upon each party hereto and its respective successors and assigns and
shall inure to the benefit of the parties hereto and their respective successors
and assigns, all subject to the terms and conditions hereof. Each reference
herein to any party hereto shall be deemed to include its successors and
assigns, all of whom shall be bound and benefited by the provisions of this
Agreement.
SECTION 10. TERMINATION. This Agreement shall remain in effect and
shall not be terminated until the Credit Agreement, all amounts owed to
Subotnick and this Agreement have been discharged or otherwise satisfied in
accordance with its respective terms.
SECTION 11. CHOICE OF LAW. THIS AGREEMENT AND ANY INSTRUMENT OR
AGREEMENT REQUIRED HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE
PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK.
SECTION 12. COUNTERPARTS. This Agreement, and any modifications or
amendments hereto, may be executed in any number of counterparts, each of which
when so executed and delivered shall constitute an original for all purposes,
but all such counterparts taken together shall constitute one and the same
instrument.
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SECTION 13. EFFECTIVENESS. This Agreement shall become effective as
to any party upon the execution hereof by such party and delivery of its
executed counterpart to the Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first written above.
BIG CITY RADIO, INC.
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxx
Title: President and Chief Executive Officer
GUARANTORS:
BIG CITY RADIO-NYC, L.L.C.
BIG CITY RADIO-CHI, L.L.C.
BIG CITY RADIO-LA, L.L.C.
ODYSSEY TRAVELING BILLBOARDS, INC.
WRKL ROCKLAND RADIO, L.L.C.
By: /s/ Xxxxxxx Xxxxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxxxx Xxxxxxxxx
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