EXHIBIT 10.6
SECOND AMENDMENT TO PREFERRED STOCKHOLDERS' AGREEMENT
THIS AMENDMENT (this "Amendment") is executed to be effective as of
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November 23, 1998 (the "Effective Date") among ALTA SUBORDINATED DEBT PARTNERS
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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, MEDALLION CAPITAL, 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
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Stockholders' Agreement (as amended, supplemented and otherwise modified from
time to time, the "Agreement") entered into as of May 14, 1997 by and among
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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:
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WHEREAS, the Agreement imposes certain affirmative and negative covenants on
the Company;
WHEREAS, after reviewing certain information provided by the Company
concerning performance during 1998 and expected expenditures, 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 "$2,850,000" for the number "$1,935,000".
(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 $300,000 for any fiscal period, except that the
amount shall be $2,100,000 for fiscal year 1998; provided, however, that if
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the Company does not incur Capital Expenditures in an aggregate amount of
$300,000 during any fiscal year period, the Company may add such
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unused portion of permitted Capital Expenditures to the amount of the Capital
Expenditure allotment for the following fiscal year period.
(c) Section 5.9(a) of the Agreement is hereby deleted in its entirety and
is replaced with the following:
(a) ensure that meetings of the Board of Directors of the Company are held
at least four (4) times each year (provided that the number may be reduced to
three (3) for fiscal year 1998) at intervals of not more than four (4) months
(provided that the interval requirement shall not apply to fiscal year 1998)
and that annual meetings (the "Annual Meetings") of the stockholders of the
Company be held each year within 180 days of the Company's fiscal year end;
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
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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 and except as disclosed on Attachment A hereto.
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
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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.
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(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.
/s/ Xxxxxx X. Xxxxxxx, III
By:_____________________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: President
RADIO ONE LICENSES, INC.
/s/ Xxxxxx X. Xxxxxxx, III
By:_____________________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: President
ALTA SUBORDINATED DEBT
PARTNERS III, L.P.
By: Alta Subordinated Debt Management III,
L.P., its General Partner
/s/ Xxxxx X. XxXxxxx
By:_____________________________________
Name: Xxxxx X. XxXxxxx
Title: General Partner
BANCBOSTON INVESTMENTS INC.
/s/ Xxxx X. Xxxxxxx
By:_____________________________________
Name: Xxxx X. Xxxxxxx
Title: Assistant Vice President
XXXXX XXXXXX
/s/ Xxxxx X. Xxxxxx
________________________________________
Name: Xxxxx X. Xxxxxx
Title: Individual
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SYNCOM CAPITAL CORPORATION
/s/ Xxxxx X. Xxxxx
By:_____________________________________
Name: Xxxxx X. Xxxxx
Title:
ALLIANCE ENTERPRISE CORPORATION
/s/ Xxxxxxx Xxxxxx
By:_____________________________________
Name: Xxxxxxx Xxxxxx
Title: Executive Vice President
XXXXXX X. XXXXXXX, III
/s/ Xxxxxx X. Xxxxxxx, III
By:_____________________________________
Name: Xxxxxx X. Xxxxxxx, III
Title: Individual
OPPORTUNITY CAPITAL CORPORATION
/s/ J. Xxxxx Xxxxxxxx
By:_____________________________________
Name: J. Xxxxx Xxxxxxxx
Title: President
MEDALLION CAPITAL, INC.
/s/ Xxxx Xxxxxxxxx
By:_____________________________________
Name: Xxxx Xxxxxxxxx
Title: President
TSG VENTURES L.P.
By: TSGVI Associates, Inc., its General
Partner
/s/ Xxxxx Xxxx
By:_____________________________________
Name: Xxxxx Xxxx
Title: President
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FULCRUM VENTURE CAPITAL CORPORATION
/s/ Xxxxx Xxxxxxx
By:_____________________________________
Name: Xxxxx Xxxxxxx
Title: President
MANAGEMENT STOCKHOLDERS
/s/ Xxxxxx X. Xxxxxxx, III
____________________________________
Xxxxxx X. Xxxxxxx, III, individually
/s/ Xxxxxxxxx X. Xxxxxx
____________________________________
Xxxxxxxxx X. Xxxxxx, individually
/s/ Xxxxx X. Xxxxx III
____________________________________
Xxxxx X. Xxxxx III, individually
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