FIRST AMENDMENT TO SECOND LIEN CREDIT AGREEMENT
Exhibit 10.2
FIRST AMENDMENT TO SECOND LIEN CREDIT AGREEMENT
This First Amendment (this “Amendment”) to Second Lien Credit Agreement is entered into as of
November 7, 2011 (the “First Amendment Effective Date”), by and among WESTWOOD ONE, INC., a
Delaware corporation (the “Borrower”), and the Lenders party hereto.
RECITALS
WHEREAS, reference is made to that certain Second Lien Credit Agreement, dated as of October
21, 2011 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”; capitalized terms used but not defined herein have the meanings given to such terms in
the Credit Agreement), among the Borrower, Cortland Capital Market Services LLC, as Administrative
Agent and Collateral Agent, Macquarie Capital (USA) Inc., as Syndication Agent, and the Lenders
party thereto;
WHEREAS, the Borrower wishes to amend the Credit Agreement as set forth herein;
WHEREAS, the Required Lenders have agreed to amend the Credit Agreement upon the terms and
subject to the conditions set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants herein contained, the
parties hereto hereby agree as follows:
Section 1. Section References. Unless otherwise expressly stated herein, all Section
references herein shall refer to Sections of the Credit Agreement.
Section 2. Amendment to Section 1.1. Section 1.1 is hereby amended by:
(a) amending the definition of “Excess Cash Flow” by deleting clause (b)(i) thereof and
replacing it with the following:
“(i) any cash principal payment on the Term Loans and on the First Lien Loans
during such period (but only, in the case of payment in respect of First Lien
Revolving Loans or First Lien Swing Loans, to the extent that the Revolving Credit
Commitments (as defined in the First Lien Credit Agreement) are permanently reduced
by the amount of such payment) other than (x) any voluntary prepayment of Term
Loans made pursuant to Section 2.7 hereof during such period or First Lien
Term Loans, First Lien Revolving Loans or First Lien Swing Loans pursuant to
Section 2.7 of the First Lien Credit Agreement during such period and (y) any
mandatory prepayment required pursuant to Section 2.8(a) hereof or Section
2.8(a) of the First Lien Credit Agreement, in either case because of the existence
of Excess Cash Flow and any purchase and retirement of First Lien Term
Loans by any Purchasing Borrower Party (as defined in the First Lien Credit
Agreement) pursuant to Section 2.21 of the First Lien Credit Agreement,”
(b) deleting the definition of “Permitted Acquisition” and replacing it with the following:
“Permitted Acquisition” means any Proposed Acquisition satisfying each of
the following conditions: (a) the aggregate amounts payable in connection with,
and other consideration for (in each case, including all transaction costs and all
Indebtedness, liabilities and Guaranty Obligations incurred or assumed in
connection therewith or otherwise reflected in a Consolidated balance sheet of the
Borrower and the Proposed Acquisition Target but excluding any portion of such
consideration (x) comprised of Qualified Stock or (y) funded with Net Cash Proceeds
of any issuances of Qualified Stock, in each case of clauses (x) and (y), to the
extent that the Consolidated Leverage Ratio, measured on a Pro Forma Basis
immediately after giving effect to such Proposed Acquisition, as of the last day of
the most recently ended Fiscal Quarter or Fiscal Year (in the case of the fourth
Fiscal Quarter) for which Financial Statements have been or were required to be
delivered pursuant to Section 6.1 is less than the Consolidated Leverage
Ratio as of the last day of the most recently ended Fiscal Quarter or Fiscal Year
(in the case of the fourth Fiscal Quarter) for which Financial Statements have been
or were required to be delivered pursuant to Section 6.1 (without giving
pro forma effect to such Proposed Acquisition)) (i) such Proposed Acquisition shall
not exceed, in the aggregate with any Indebtedness incurred in connection with such
Proposed Acquisition pursuant to Section 8.1(n), $27,500,000 and (ii) such Proposed
Acquisition and all other Permitted Acquisitions consummated on or prior to the
date of the consummation of such Proposed Acquisition shall not exceed, in the
aggregate with any Indebtedness incurred on or prior to such date pursuant to
Section 8.1(n), $55,000,000, (b) the Syndication Agent shall have received
reasonable advance notice of such Proposed Acquisition including a reasonably
detailed description thereof at least 15 Business Days prior to the consummation of
such Proposed Acquisition (or such later date as may be agreed by the Syndication
Agent) and on or prior to the date of such Proposed Acquisition, the Syndication
Agent shall have received copies of the acquisition agreement and related
Contractual Obligations and other documents (including financial information and
analysis, environmental assessments and reports, opinions, certificates, lien
searches, and FCC approvals) and information reasonably requested by the
Syndication Agent, (c) as of the date of consummation of any transaction as part of
such Proposed Acquisition and after giving effect to all transactions to occur on
such date as part of such Proposed Acquisition, the representations and warranties
set forth in any Loan Document shall be true and correct in
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all material respects
(but in all respects if such representation or warranty is qualified by “material” or “Material Adverse Effect”) on and as of such date or, to
the extent such representations and warranties expressly relate to an earlier date,
on and as of such earlier date, (d) after giving effect to such Permitted
Acquisition, the Borrower shall be in compliance with the financial covenants set
forth in Article 5 on a Pro Forma Basis as of the last day of the most
recently ended Fiscal Quarter or Fiscal Year (in the case of the fourth Fiscal
Quarter) for which Financial Statements have been or were required to be delivered
pursuant to Section 6.1 (assuming that the maximum permitted Consolidated
Leverage Ratio permitted at such time was in fact 0.25 to 1 less than the ratio set
forth in Section 5.1 for such period), (e) no Default or Event of Default
is continuing or would result therefrom, (f) the Proposed Acquisition Target has
Consolidated EBITDA, subject to pro forma adjustments reasonably acceptable to the
Syndication Agent, for the most recent four fiscal quarters prior to the date of
such Proposed Acquisition for which financial statements are available, greater
than zero and (g) after giving effect to such Permitted Acquisition, the sum of (x)
unencumbered (except for encumbrances created by the Loan Documents and the First
Lien Loan Documents) cash and Cash Equivalents held by the Borrower and its
Subsidiaries at such time, plus (y) the aggregate Revolving Credit
Commitments (as defined in the First Lien Credit Agreement) of all the First Lien
Lenders then in effect minus (z) the Revolving Credit Outstandings (as
defined in the First Lien Credit Agreement) of all the First Lien Lenders at such
time, shall not be less than $10,000,000.”
(c) amending the definition of “Pro Forma Basis” by adding the following sentence at the end
of such definition:
“Any adjustments to Consolidated EBITDA pursuant to this definition as a result of
or in connection with a Permitted Acquisition shall not exceed 25% of the
Consolidated EBITDA of the Proposed Acquisition Target.”
Section 3. Conditions Precedent. The effectiveness of this Amendment is subject to
the satisfaction of each of the following conditions precedent:
(a) Administrative Agent shall have received all of the following:
(i) Amendment. This Amendment, duly executed and delivered by each
Loan Party and the Required Lenders; and
(ii) First Lien Credit Agreement Amendment. (A) A copy of the
amendment to the First Lien Credit Agreement being entered into by the Loan
Parties and the Required Lenders (as defined in the First Lien Credit Agreement)
that is substantially similar to this Amendment and (B) evidence that such
amendment has been executed and delivered and is in full force and effect on or
prior to the First Amendment Effective Date; and
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(iii) Fees and Expenses. To the extent invoiced, the fees, expenses
and other amounts payable on or prior to the First Amendment Effective Date
referred to (and subject to the limitations) in Section 11.3 of the Credit
Agreement and in the section titled “Costs and Expenses of the Agents” below,
including, but not limited to, reimbursement or payment of all reasonable and
out-of-pocket expenses (including the reasonable legal fees and expenses of Xxxxxx
& Xxxxxxx LLP, special counsel to the Syndication Agent) required to be reimbursed
or paid by the Borrower hereunder or under any other Loan Document.
(b) Representations and Warranties. After giving effect to this Amendment, the
representations and warranties contained herein and in the other Loan Documents shall be true and
correct in all material respects (but in all respects if such representation or warranty is
qualified by “material” or “Material Adverse Effect”) on and as of the First Amendment Effective
Date to the same extent as though made on and as of that date, except to the extent such
representations and warranties expressly relate to an earlier date, in which case such
representations and warranties shall have been true and correct in all material respects (but in
all respects if such representation or warranty is qualified by “material” or “Material Adverse
Effect”) on and as of such earlier date.
(c) Completion of Proceedings. All partnership, corporate, limited liability company
and other proceedings taken or to be taken in connection with the transactions contemplated hereby
and with the transactions contemplated by the concurrent amendment to the First Lien Credit
Agreement and all documents incidental hereto and thereto shall be reasonably satisfactory in form
and substance to the Syndication Agent and its counsel, and the Syndication Agent and such counsel
shall have received copies of such documents as the Syndication Agent may reasonably request.
(d) No Default. On the First Amendment Effective Date, no event shall have occurred
and be continuing that would constitute an Event of Default or a Default after giving effect to
this Amendment.
(e) Assignment. Term Loans in the amount of no less than $42,500,000 shall have been
assigned by MIHI LLC to a Lender that has been previously disclosed to the Borrower in accordance
with the provisions of the Credit Agreement and evidence of such assignment shall have been
delivered to the Borrower.
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Section 4. Representations and Warranties; Reaffirmation of Grant. Each Loan Party
hereby represents and warrants to the Agents and the Lenders that, as of the First Amendment
Effective Date after giving effect to this Amendment, (a) all representations and warranties of the
Loan Parties set forth in the Credit Agreement and in any other Loan Document are true and correct
in all material respects (but in all respects if such representation or warranty is qualified by
“material” or “Material Adverse Effect”) on and as of the First Amendment Effective Date to the
same extent as though made on and as of such date, except to the extent such representations and
warranties expressly relate to an earlier date, in which case such representations and
warranties shall have been true and correct in all material respects (but in all respects if
such representation or warranty is qualified by “material” or “Material Adverse Effect”) on and as
of such earlier date, (b) no Default or Event of Default has occurred and is continuing, (c) the
Credit Agreement (as amended by this Amendment) and all other Loan Documents are and remain legally
valid, binding obligations of the Loan Parties, enforceable against each such Loan Party in
accordance with their respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or
by equitable principles relating to enforceability and (d) each of the Loan Documents to which such
Loan Party is a party pursuant to which a Lien has been granted in favor of the Administrative
Agent and all of the Collateral described therein do and shall continue to secure the payment of
all Obligations as set forth in such respective Loan Documents. Each Loan Party that is a party to
the Guaranty and Security Agreement or any of the Loan Documents pursuant to which a Lien has been
granted in favor of the Administrative Agent hereby reaffirms its grant of a security interest in
the Collateral to the Administrative Agent for the ratable benefit of the Secured Parties, as
collateral security for the prompt and complete payment and performance when due of the
Obligations.
Section 5. Survival of Representations and Warranties. All representations and
warranties made in this Amendment or any other Loan Document shall survive the execution and
delivery of this Amendment, and no investigation by any Agent or the Lenders shall affect the
representations and warranties or the right of the Agents and the Lenders to rely upon them.
Section 6. Reference to Agreement. The Credit Agreement is hereby amended so that any
reference in the Loan Documents to the Credit Agreement, whether direct or indirect, shall mean a
reference to the Credit Agreement as amended hereby. This Amendment shall constitute a Loan
Document under the Credit Agreement.
Section 7. Costs and Expenses of the Agents. The Borrower shall pay on demand all
reasonable out-of-pocket and documented costs and expenses of the Agents (including the reasonable
fees, costs and expenses of counsel to the Agents) incurred in connection with the preparation,
execution and delivery of this Amendment, but only to the extent required pursuant to Section 11.3
of the Credit Agreement.
Section 8. Governing Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD RESULT IN THE
APPLICATION OF ANY LAW OTHER THAN THE STATE OF NEW YORK.
Section 9. Execution. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier (or electronic mail (in PDF format)) shall be
effective as delivery of a manually executed counterpart of this Amendment.
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Section 10. Limited Effect. This Amendment relates only to the specific matters
expressly covered herein, shall not be considered to be a waiver of any rights, claims or remedies
any Lender may have under the Credit Agreement or under any other Loan Document (except as
expressly set forth herein) or under applicable law, and shall not be considered to create a course
of dealing or to otherwise obligate in any respect any Lender to execute similar or other
amendments or grant any waivers under the same or similar or other circumstances in the future.
Section 11. Ratification by Guarantors. Each of the Guarantors acknowledges that its
consent to this Amendment is not required, but each of the undersigned nevertheless does hereby
agree and consent to this Amendment and to the documents and agreements referred to herein. Each
of the Guarantors agrees and acknowledges that (i) notwithstanding the effectiveness of this
Amendment, such Guarantor’s guaranty under the Guaranty and Security Agreement shall remain in full
force and effect without modification thereto and (ii) nothing herein shall in any way limit any of
the terms or provisions of such Guarantor’s guaranty or any other Loan Document executed by such
Guarantor (as the same may be amended from time to time), all of which are hereby ratified,
confirmed and affirmed in all respects. Each of the Guarantors hereby agrees and acknowledges that
no other agreement, instrument, consent or document shall be required to give effect to this
section. Each of the Guarantors hereby further acknowledges that the Borrower, the Agents and any
Lender may from time to time enter into any further amendments, modifications, terminations and/or
waivers of any provisions of the Loan Documents without notice to or consent from such Guarantor
and without affecting the validity or enforceability of such Guarantor’s guaranty or giving rise to
any reduction, limitation, impairment, discharge or termination of such Guarantor’s guaranty.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their
respective officers thereunto duly authorized, as of the date first above written.
WESTWOOD ONE, INC. |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Chief Executive Officer | |||
WESTWOOD ONE PROPERTIES, INC. WESTWOOD ONE STATIONS — NYC, INC. WESTWOOD ONE RADIO, INC. WESTWOOD ONE RADIO NETWORKS, INC. WESTWOOD NATIONAL RADIO CORPORATION VERGE MEDIA COMPANIES, LLC VERGE MEDIA GROUP HOLDINGS, INC. VERGE MEDIA INTERMEDIATE HOLDINGS, INC. VERGE MEDIA, INC. VERGE MEDIA SOLUTIONS, LLC EXCELSIOR RADIO NETWORKS, LLC EXBT, LLC DIAL COMMUNICATIONS GLOBAL MEDIA, LLC EXCELSIOR NETWORK GROUP, LLC RDG EXCELSIOR HOLDINGS, LLC EXCELSIORTM, INC. EXCELSIOR MEDIA NETWORKS, LLC JPN, LLC EXCELSIOR RADIO NETWORK VENTURES, LLC EXCELSIOR RADIO HOLDINGS, LLC EXCELSIOR MEDIAAMERICA, INC. DG RADIO NETWORKS, LLC AMERICAN COMEDY NETWORK, LLC, as Guarantors |
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By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Chief Executive Officer |
Westwood
One 2nd Lien First Amendment Signature Page
MIHI LLC, as a Lender |
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By: | /s/ Xxxxxx Xxxxx | |||
Name: | Xxxxxx Xxxxx | |||
Title: | Authorized Signatory | |||
By: | /s/ Xxxxx Xxxxx | |||
Name: | Xxxxx Xxxxx | |||
Title: | Authorized Signatory |
Westwood
One 2nd Lien First Amendment Signature Page
BLACKROCK XXXXX CAPITAL CORPORATION, as a Lender |
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By: | BlackRock Xxxxx Capital Advisors LLC, its Investment Advisor |
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By: | /s/ Xxxxxxx X. Xxxxx
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Title: Chief Operating Officer |
Westwood
One 2nd Lien First Amendment Signature Page