Exhibit Number 10.5
[Execution copy]
FIRST AMENDMENT
FIRST AMENDMENT, dated as of October 24, 2002 (this "Amendment"), to the
Second Amended and Restated Credit Agreement (as amended, supplemented or
otherwise modified from time to time), dated as of November 17, 2000 (the
"Credit Agreement"), among Westwood One, Inc., a Delaware corporation (the
"Borrower"), the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), Fleet National Bank, Bank Of Montreal and
Bank Of America, N.A., as co-agents for the Lenders (in such capacity, the
"Co-Agents") and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), as Administrative Agent for the Lenders (in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Borrower desires to enter into a note purchase agreement for
the purchase of Senior Guaranteed Notes, Series A, due November 2009, and Senior
Guaranteed Notes, Series B, due November 2012, in an aggregate principal amount
up to $250,000,000;
WHEREAS, the Borrower, the Administrative Agent and the Lenders signatory
hereto desire to amend the Credit Agreement to permit the Borrower to enter into
the note purchase agreement described above and to issue the Senior Guaranteed
Notes thereunder and to permit the subsidiaries of the Borrower to guarantee
such Notes as provided in such note purchase agreement; and
WHEREAS, to effect the foregoing, the Borrower and the Lenders wish to
amend certain provisions of the Credit Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto hereby agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and used herein
shall, unless otherwise indicated, have the meanings given to them in the Credit
Agreement.
2. Amendments to the Credit Agreement. Subject to the satisfaction of the
conditions set forth in Section 3 hereof, the Credit Agreement shall be amended
as follows:
(a) Definitions. Subsection 1.1 of the Credit Agreement is hereby amended
as follows:
(i) by inserting new definitions therein in the appropriate alphabetical
location as follows:
"2002 Notes": the Borrower's Senior Guaranteed Notes, Series A, due
November 2009, and the Borrower's Senior Guaranteed Notes, Series B, due
November 2012 in an aggregate principal amount up to but not exceeding,
$250,000,000.
<page>
- 2 -
"2002 Notes Guarantee": the guarantee by the Guarantors of the 2002 Notes
pursuant to the 2002 Notes Note Purchase Agreement.
"2002 Notes Note Purchase Agreement": the Note Purchase Agreement pursuant
to which the Borrower has issued the 2002 Notes.
(ii) by adding a new sentence at the end of the definition of "Unrestricted
Subsidiary" as follows:
"Notwithstanding the foregoing, no Subsidiary that is a Restricted
Subsidiary under the 2002 Notes Note Purchase Agreement may be an Unrestricted
Subsidiary hereunder."
(b) Limitation on Guarantee Obligations. Subsection 6.4 of the Credit
Agreement is hereby amended by deleting clause (d) thereof in its entirety and
substituting in lieu thereof the following:
"(d) the Guarantee and the 2002 Notes Guarantee; and"
(c) Limitation on Negative Pledge Clauses. Subsection 6.14 of the Credit
Agreement is hereby amended by substituting in lieu thereof the following:
"6.14 Limitation on Negative Pledge Clauses. Enter into with any Person any
agreement, other than (a) this Agreement and (b) any industrial revenue bonds,
purchase money mortgages or Financing Leases permitted by this Agreement (in
which cases, any prohibition or limitation shall only be effective against the
assets financed thereby), which prohibits or limits the ability of the Borrower
or any of its Restricted Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired unless the prohibitions or limitations contained in such
agreement would only restrict such Liens if they were not also made to secure
the obligations of the Borrower or a Restricted Subsidiary under such agreement
or a related agreement equally and ratably with the obligations which such Liens
were created to secure. Notwithstanding the foregoing, the Borrower and its
Restricted Subsidiaries may enter into the 2002 Notes Note Purchase Agreement
and the 2002 Notes Note Purchase Agreement may prohibit or limit the ability of
the Borrower or any of its Restricted Subsidiaries from creating, incurring,
assuming or suffering to exist any Lien upon any of its property, assets or
revenues, so long as such prohibition or limitation, as applied to Liens in
favor of the Administrative Agent and the Lenders hereunder, shall prohibit or
limit such Liens in favor of the Administrative Agent and the Lenders only to
the extent that such Liens do not effectively provide that the 2002 Notes are
equally and ratably secured thereby."
<page>
- 3 -
3. Conditions to Effectiveness. This Amendment shall become effective on
the date that the Administrative Agent shall have received (i) counterparts of
this Amendment, duly executed by the Borrower and the Majority Lenders and
(ii) a final execution copy of the 2002 Notes Note Purchase Agreement, which
shall be in substantially the form of the draft thereof dated October 23, 2002
previously delivered to the Administrative Agent, together with a certificate
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of the Borrower stating that the 2002 Notes will qualify as
"Permitted Additional Indebtedness" under the Credit Agreement (and attaching a
copy of the determination by the Board of Directors of the Borrower referred to
in the definition of such term in Section 1.01 of the Credit Agreement)..
4. Payment of Expenses. The Borrower agrees to pay or reimburse the
Administrative Agent for all of its out-of-pocket costs and reasonable expenses
incurred in connection with this Amendment, any other documents prepared in
connection herewith and the transactions contemplated hereby, including, without
limitation, the reasonable fees and disbursements of counsel to Chase.
5. Reference to and Effect on the Loan Documents; Limited Effect. On and
after the date hereof, each reference in the Credit Agreement to "this
Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the other Loan Documents to "the Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement, shall mean and be a reference to the Credit Agreement as
amended hereby. The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Agent under any of the Loan
Documents, nor constitute a waiver of any provisions of any of the Loan
Documents. Except as expressly amended herein, all of the provisions and
covenants of the Credit Agreement and the other Loan Documents are and shall
continue to remain in full force and effect in accordance with the terms thereof
and are hereby in all respects ratified and confirmed.
6. Counterparts. This Amendment may be executed by one or more of the
parties hereto in any number of separate counterparts (which may include
counterparts delivered by facsimile transmission) and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. Any
executed counterpart delivered by facsimile transmission shall be effective as
for all purposes hereof.
7. 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.
<page>
- 4 -
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be duly executed and delivered by their respective proper and duly authorized
officers as of the day and year first above written.
Borrower
WESTWOOD ONE, INC.
By:_______________________________
Title:
Lenders
JPMORGAN CHASE BANK
By:_______________________________
Title:
FLEET NATIONAL BANK
By:_______________________________
Title:
BANK OF MONTREAL
By:_______________________________
Title:
THE BANK OF NEW YORK
By:_______________________________
Title:
BARCLAYS BANK PLC
By:_______________________________
Title:
<page>
- 5 -
BANK OF AMERICA, N.A.
By:_______________________________
Title:
KEYBANK CORPORATE CAPITAL INC.
By:_______________________________
Title:
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY
By:_______________________________
Title:
DEUTSCHE BANK AG NEW YORK
BRANCH AND/OR CAYMAN ISLANDS BRANCH
By:_______________________________
Title:
INDUSTRIAL BANK OF JAPAN, LIMITED
By:_______________________________
Title:
NATIONAL AUSTRALIA BANK LIMITED
ACN004044937
By:_______________________________
Title: