EXHIBIT 10.28
AMENDMENT
THIS AMENDMENT (this "Amendment") is executed to be effective as of
December 31, 1997 (the "Effective Date") among ALTA SUBORDINATED DEBT PARTNERS
III, L.P., BANCBOSTON INVESTMENTS INC., XXXXX X. XXXXXX, SYNCOM CAPITAL
CORPORATION, ALLIANCE ENTERPRISE CORPORATION, XXXXXX X. XXXXXXX, III, as
successor in interest to Greater Philadelphia Venture Capital Corporation, Inc.,
OPPORTUNITY CAPITAL CORPORATION, CAPITAL DIMENSIONS VENTURE FUND, INC., TSG
VENTURES L.P. and FULCRUM VENTURE CAPITAL CORPORATION (collectively, the
"Investors"), RADIO ONE, INC. (the "Company") and RADIO ONE LICENSES, INC., a
subsidiary of the Company, and XXXXXX X. XXXXXXX, XXXXXXXXX X. XXXXXX and XXXXX
X. XXXXX III (the "Management Stockholders"), with reference to that certain
Preferred Stockholders' Agreement (as amended, supplemented and otherwise
modified from time to time, the "Agreement") entered into as of May 14, 1997 by
and among the Investors, the Company, and the Management Shareholders.
Capitalized terms used and not otherwise defined herein shall have the meanings
ascribed to them in the Agreement.
R E C I T A L S:
WHEREAS, the Agreement imposes certain affirmative and negative
covenants on the Company;
WHEREAS, the Company seeks to amend several covenants of the Agreement
for calendar year 1997;
WHEREAS, after reviewing certain information provided by the Company
the Investors are willing to amend the 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, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto hereby agree as
follows:
SECTION 1. AMENDMENTS TO AGREEMENT
Subject to the terms and conditions set forth herein, and in reliance
upon the representations of the Company herein contained, the Agreement is
hereby amended as follows:
(a) Section 4.2 of the Agreement is hereby amended by
substituting the number "$2,155,000" - for the number "$1,800,000".
(b) Section 5.2 of the Agreement is hereby amended to delete
the section in its entirety and substitute the following:
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"Except for fiscal year 1998, not later than thirty
(30) days after the beginning of each fiscal year, senior
management will prepare and submit to the Board of Directors
of the Company, with a copy to each of the Investors, (a) a
monthly budget for such fiscal year of the Company, with
together with management's written discussion and analysis of
such budget and (b) five (5) year projections in similar form
to the projections delivered to each of the Investors prior to
the date hereof. The Company shall review its budget
periodically and shall advise the Investors of all material
changes therein and all material deviations therefrom."
(c) Section 6.4 of the Agreement is hereby amended to delete
subsection (c) in its entirety and substitute the following:
"(c) make any advance, loan, extension of credit or
capital contribution to, or purchase any stock, bonds, notes,
debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any Person
(including without limitation any employees (except loans to
employees in the aggregate outstanding principal amount of
$50,000 at any one time) or Affiliates of the Company, except
that an amount not to exceed $155,000 related to management
fees and reimbursable expenses may be accrued from Radio One
of Atlanta, Inc., during fiscal year 1997 provided that such
amount is paid to the Company by Radio One of Atlanta, Inc.,
within sixty (60) days of the end of the fiscal year) or
entity, except for (i) capital expenditures as and to the
extent specifically permitted hereunder, (ii) cash and cash
equivalents, (iii) Permitted Investments (as defined in the
Indenture) and (iv) intercompany Indebtedness,"
(d) Appendix A of the Agreement is hereby amended to
substitute the phrase "$1.760 million" for the phrase "$1.3 million".
SECTION 2. REPRESENTATIONS AND WARRANTIES.
In order to induce the Investors to enter into this Amendment, Company
represents and warrants to the Investors that the representations and warranties
contained in Section 2 of the 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.
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SECTION 3. MISCELLANEOUS
(a) RATIFICATION AND CONFIRMATION OF AGREEMENT. Except as specifically
amended hereby, the 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 Agreement or as a waiver of any right, power
or remedy of the Investors under the Agreement. Without limiting the generality
of the foregoing, the amendments set forth in Section 1 above shall be limited
precisely as set forth 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 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 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) APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
(d) COUNTERPARTS. This 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
RADIO ONE, INC.
By:
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Name:
Title:
RADIO ONE LICENSES, INC.
By:
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Name:
Title:
ALTA SUBORDINATED DEBT PARTNERS III, L.P.
By: Alta Subordinated Debt Management III,
L.P., its General Partner
By:
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Name: Xxxxx X. XxXxxxx
Title: General Partner
BANCBOSTON INVESTMENTS INC.
By:
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Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
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Xxxxx X. Xxxxxx, individually
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SYNCOM CAPITAL CORPORATION
By:
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Name:
Title:
ALLIANCE ENTERPRISE CORPORATION
By:
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Name:
Title:
XXXXXX X. XXXXXXX, III
By:
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Name: Xxxxxx X. Xxxxxxx, III
Title: Individual
OPPORTUNITY CAPITAL CORPORATION
By:
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Name:
Title:
CAPITAL DIMENSIONS VENTURE FUND, INC.
By:
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Name:
Title:
TSG VENTURES L.P.
By:
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Name:
Title:
5
FULCRUM VENTURE CAPITAL CORPORATION
By:
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Name:
Title:
MANAGEMENT STOCKHOLDERS
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Xxxxxx X. Xxxxxxx, individually
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Xxxxxxxxx X. Xxxxxx, individually
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Xxxxx X. Xxxxx III, individually
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