EXHIBIT 10.1
AMENDMENT NO. 1, dated as of March 16, 2007, among MUZAK LLC a Delaware
limited liability company (the "Borrower"), MUZAK HOLDINGS LLC a Delaware
limited liability company ("Holdings"), BEAR STEARNS CORPORATE LENDING INC., as
Administrative Agent (the "Administrative Agent") and the Lenders listed on the
signature pages hereto, to that certain Credit Agreement, dated as of April, 15,
2005 (as amended, supplemented, amended and restated or otherwise modified from
time to time, the "Credit Agreement") among the Borrower, Holdings, the lenders
from time to time party thereto (the "Lenders"), BEAR STEARNS & CO INC. as sole
lead arranger and sole bookrunner, and the Administrative Agent. Capitalized
terms used and not otherwise defined herein shall have the meanings assigned to
them in the Credit Agreement.
WHEREAS, Borrower has requested that the Lenders agree to amend certain
provisions of the Credit Agreement as set forth herein, and the Lenders party
hereto are willing to so amend such provisions of the Credit Agreement pursuant
to the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
Section 1. Amendments.
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(a) The following defined terms shall be added to Section 1.1 of the Credit
Agreement in alphabetical order:
"Amendment No. 1": Amendment No. 1 to this Agreement dated as of March 16,
2007.
"Amendment No. 1 Effective Date": March 16, 2007, the date on which all
conditions precedent set forth in Section 3 of Amendment No. 1 were satisfied.
"Repricing Transaction": the refinancing or repricing by the Borrower of
the Term Loans under this Agreement (x) with the proceeds of any senior secured
bank loan or other debt financing (including, without limitation, any new or
additional term loans under this Agreement) or (y) in connection with any
amendment to this Agreement, in either case, resulting in an interest rate
margin or weighted average yield (to be determined by the Administrative Agent
consistent with generally accepted financial practice, after giving effect to,
among other factors, margins, upfront or similar fees or original issue discount
shared with all lenders or holders thereof, but excluding the effect of any
arrangement, structuring, syndication or other fees payable in connection
therewith that are not shared with all lenders or holders thereof) on such
financing or the Term Loans as so repriced that is less than the Applicable Rate
for, or weighted average yield (to be determined by the Administrative Agent on
the same basis) of, the Term Loans immediately prior to such refinancing or
repricing; provided that the term "Repricing Transaction" shall not include any
refinancing of all (and not less than all) of the Term Loans in connection with
a transaction constituting a Change of Control.
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(b) The definition of "Applicable Margin" in Section 1.1 of the Credit
Agreement is hereby amended by deleting the definition in its entirety and
replacing it with the following:
"for Eurodollar Loans, 3.75% and, for Base Rate Loans, 2.75%."
(c) The definition of "Term Loan Termination Date" in Section 1.1 of the
Credit Agreement is hereby amended by deleting the definition in its entirety
and replacing it with the following:
"January 19, 2009."
(d) Section 3.3 of the Credit Agreement is hereby amended by adding "(a)"
at the beginning of such Section, immediately prior to the words "Each
prepayment" and by adding the following paragraph (b) to such Section
immediately after the end of such Section 3.3(a):
"(b) If, prior to the first anniversary of the Amendment No. 1
Effective Date, (i) the Borrower makes any prepayment of Term Loans in
connection with any Repricing Transaction, or (ii) effects any
transaction that has the effect of a Repricing Transaction, the
Borrower shall pay to the Administrative Agent, for the ratable
account of each Term Lender, (A) in the case of clause (i), a
prepayment premium of 1% of the amount of such Term Loans being
prepaid and (B) in the case of clause (ii), a payment equal to 1% of
the aggregate amount of Term Loans outstanding immediately prior to
such amendment. In addition, to the extent any amount is payable to
any Term Lender pursuant to this Section 3.3(b), any Term Lender that
is replaced pursuant to Section 3.14, shall be paid, without
duplication, a premium of 1% of the amount of such Term Lender's Term
Loans that are assigned to one or more Eligible Assignees."
(e) Section 7.5 of the Credit Agreement is hereby amended by deleting the
"and" at the end of clause (g), deleting the "." at the end of clause (h) and
replacing it with "; and", and by further inserting a new paragraph (i) as
follows:
"Dispositions of assets in connection with one or more asset swaps or
exchanges, which assets have a fair market value not exceeding $10,000,000 in
the aggregate from the Amendment No. 1 Effective Date; provided that (i) the
aggregate revenues (in each case calculated based on the most recent twelve
month period for which financial statements are available immediately prior to
such Disposition) attributable to all such assets being disposed of do not
exceed $10,000,000 in the aggregate from the Amendment No. 1 Effective Date,
(ii) the Borrower shall deliver a certificate to the Administrative Agent
stating that any proposed asset swap is for fair market value and (iii) each
asset swap or exchange shall require the Administrative Agent's prior written
consent."
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Section 2. Representations and Warranties. Each of Holdings and the
Borrower represents and warrants to the Lenders as of the date hereof and the
Amendment No. 1 Effective Date that:
(a) The execution, delivery and performance by the Borrower and each Parent
Guarantor of this Amendment No. 1 has been duly authorized by all necessary
corporate or other organizational action, and does not and will not (a)
contravene the terms of any of such Person's Organization Documents; (b)
conflict with or result in any breach or contravention of, or the creation of
any Lien under, or require any payment to be made under (i) any Contractual
Obligation to which such Person is a party or affecting such Person or the
properties of such Person or any of its Restricted Subsidiaries or (ii) any
order, injunction, writ or decree of any Governmental Authority or any arbitral
award to which such Person or its property is subject; or (c) violate any Law,
except, in each case referred to in clauses (b) and (c), to the extent that
conflict, breach, contravention, creation, payment or violation could not
reasonably be expected to have a Material Adverse Effect.
(b) Before and after giving effect to this Amendment No. 1, the
representations and warranties set forth in the Credit Agreement are true and
correct in all material respects on and as of the date of such Credit Extension,
except to the extent that such representations and warranties specifically refer
to an earlier date, in which case they shall be true and correct in all material
respects as of such earlier date.
(c) At the time of and after giving effect to this Amendment No. 1, no
Default or Event of Default has occurred and is continuing.
Section 3. Conditions to Effectiveness. This Amendment No. 1 shall
become effective on the date on which each of the following conditions is
satisfied:
(a) The Administrative Agent (or its counsel) shall have received from (i)
Lenders constituting each Term Lender and (ii) each of the other parties hereto,
a counterpart of this Amendment No. 1 signed on behalf of such party;
(b) All corporate and other proceedings taken or to be taken in connection
with this Amendment No. 1 and all documents incidental thereto, whether or not
referred to herein, shall be reasonably satisfactory in form and substance to
the Administrative Agent;
(c) The representations and warranties in Section 2 of this Amendment No. 1
shall be true and correct; and
(d) the Borrower shall have reimbursed the Administrative Agent for its
reasonable out-of-pocket expenses incurred by it in connection with this
Amendment No. 1, including the reasonable fees, charges and disbursements of
Cahill Gordon & Reindel LLP, counsel for the Administrative Agent, and any other
amounts due and payable on the effective date of this Amendment No. 1 pursuant
to Section 10.5 of the Credit Agreement.
Section 4. Counterparts. This Amendment No. 1 may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
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each of which when so executed and delivered shall be deemed to be an original,
but all of which when taken together shall constitute a single instrument.
Delivery of an executed counterpart of a signature page of this Amendment No. 1
by facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof.
Section 5. Applicable Law. THIS AMENDMENT NO. 1 AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT NO. 1 SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO CONFLICT OF LAWS PRINCIPLES THEREOF.
Section 6. Headings. The headings of this Amendment No. 1 are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
Section 7. Effect of Amendment. Except as expressly set forth
herein, this Amendment No. 1 shall not by implication or otherwise limit,
impair, constitute a waiver of or otherwise affect the rights and remedies of
the Lenders or the Agents under the Credit Agreement or any other Loan Document,
and shall not alter, modify, amend or in any way affect any of the terms or
conditions contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. The Required Lenders agree that the Borrower and the Administrative
Agent may enter into an Amended and Restated Credit Agreement after the
Amendment No. 1 Effective Date in form and substance satisfactory to the
Administrative Agent to give effect to this Amendment No. 1. By executing and
delivering a copy hereof, each Loan Party hereby agrees and confirms that all
Loans and Obligations shall be fully guaranteed and secured pursuant to the Loan
Documents.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
be duly executed as of the date first above written.
MUZAK LLC
By: /s/ R. Dodd Haynes
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Name: R. Dodd Haynes
Title: CFO
MUZAK HOLDINGS LLC
By: /s/ R. Dodd Haynes
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Name: R. Dodd Haynes
Title: CFO
BEAR, STEARNS CORPORATE LENDING INC.,
as Administrative Agent, Collateral
Agent and a Lender
By: /s/ Victor Bulzacchelli
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Name: Victor Bulzacchelli
Title: Vice President
, as a Lender
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By:
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Name:
Title:
By:
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Name:
Title:
ALJ Capital I, L.P. , as a Lender
--------------------------
By: /s/ Lawrence B. Gill
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Name: Lawrence B. Gill
Title: Manager, ALJ Capital Manage-
ment, LLC, its agent
By:
---------------------------------------
Name:
Title:
ALJ Capital II, L.P. , as a Lender
--------------------------
By: /s/ Lawrence B. Gill
---------------------------------------
Name: Lawrence B. Gill
Title: Manager, ALJ Capital Manage-
ment, LLC, its agent
By:
---------------------------------------
Name:
Title:
BEAR STEARNS INVESTMENT PRODUCTS, INC.,
as a Lender
By: /s/ Jonathan Weiss
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Name: Jonathan Weiss
Title: Authorized Signatory
By:
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Name:
Title:
Black Diamond Offshore, Ltd., as a Lender
----------------------------
By: Carlson Capital, L.P. its Investment
Advisor
By: /s/ Christopher W. Haga
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Name: Christopher W. Haga
Title: Portfolio Manager
Caspian Capital Partners, L.P.
By: Mariner Investment Group, as
Investment Advisor
as a Lender
By: /s/ Adam S. Cohen
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Name: Adam S. Cohen
Title: Principal, Mariner
Investment Group, as
Investment Advisor.
By:
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Name:
Title:
Double Black Diamond Offshore LDC, as a Lender
---------------------------------
By: Carlson Capital, L.P., its Investment
Advisor
By: /s/ Christopher W. Haga
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Name: Christopher W. Haga
Title: Portfolio Manager
Fidelity Central Investment Portfolios LLC:
Fidelity Floating Rate Central Investment
Portfolio, as a Lender
By: /s/ John H. Costello
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Name: John H. Costello
Title: Assistant Treasurer
By:
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Name:
Title:
Field Point I, as a Lender
By: /s/ Richard Petrilli
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Name: Richard Petrilli
Title: Authorized Signatory
By:
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Name:
Title:
Field Point II, as a Lender
By: /s/ Richard Petrilli
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Name: Richard Petrilli
Title: Authorized Signatory
By:
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Name:
Title:
Field Point III, as a Lender
By: /s/ Richard Petrilli
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Name: Richard Petrilli
Title: Authorized Signatory
By:
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Name:
Title:
Field Point IV, as a Lender
By: /s/ Richard Petrilli
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Name: Richard Petrilli
Title: Authorized Signatory
By:
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Name:
Title:
GENERAL ELECTRIC CAPITAL
CORPORATION, as a Lender
By: /s/ KARL KIEFFER
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Name: KARL KIEFFER
Title: DULY AUTHORIZED SIGNATORY
ORIX FINANCE CORP, as a Lender
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By: /s/ Christopher L. Smith
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Name: Christopher L. Smith
Title: Authorized Representative
By: N/A
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Name:
Title:
Quadrangle Master Funding Ltd., as a Lender
By: /s/ Christopher Santana
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Name: Christopher Santana
Title: Managing Principal
By: N/A
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Name:
Title:
Restoration Holdings Ltd., as a Lender
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By: /s/ Pamela M. Lawrence
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Name: Pamela M. Lawrence
Title: Director
By:
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Name:
Title:
Riva Ridge Master Fund, Ltd., as a Lender
By: Riva Ridge Capital Management LP,
As Investment Manager
By: Riva Ridge GP LLC, GP to the Investment
Manager
By: /s/ STEPHEN GOLDEN
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Name: STEPHEN GOLDEN
Title: MANAGING MEMBER
THERMOPYLAE FUNDING CORP, as a Lender
By: /s/ John O'Dowd
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Name: John O'Dowd
Title: Authorized Signatory