Filed by Bowne Pure Compliance



 




Exhibit
10.4




EXECUTION COPY




WESTWOOD ONE, INC.




FIRST AMENDMENT TO NOTE PURCHASE

AGREEMENT




THIS FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”), is made and entered into
as of February 28, 2008, by and among Westwood One, Inc., a Delaware corporation (the “Company”),
and the financial institutions that hold the Notes (collectively, the “Noteholders”). Capitalized
terms used and not defined herein have the respective meanings ascribed thereto in the Note
Purchase Agreement or the Intercreditor and Collateral Trust Agreement (as such terms are defined
below).



WITNESSETH:




WHEREAS, the Company and the Noteholders are parties to that certain Note Purchase Agreement,
dated as of December 3, 2002 (as in effect on the date hereof, the “Existing Note Purchase
Agreement” and as in effect after giving effect to this Amendment, the “Note Purchase Agreement”),
pursuant to which the Company issued $50,000,000.00 of 4.64% Senior Guaranteed Notes, Series A, due
November 30, 2009 (the “Series A Notes”) and $150,000,000.00 of 5.26% Senior Guaranteed Notes,
Series B, due November 30, 2012 (the “Series B Notes”, and together with the Series A Notes, the
“Notes”) of the Company;



WHEREAS, the Company is also party to a certain Credit Agreement, dated as of March 3, 2004
(as amended from time to time, the “Credit Agreement”) among the financial institutions or entities
from time to time parties thereto (the “Banks”) and the Subsidiary Guarantors (as defined therein);



WHEREAS the Company has entered into an amendment to the Credit Agreement (“Bank Amendment No.
2”);



WHEREAS it is a condition precedent to the effectiveness of Bank Amendment No. 2 that the
Obligors grant Liens on their property to secure the Credit Agreement Obligations and the 2002
Notes Obligations;



WHEREAS, pursuant to the provisions of the Existing Note Purchase Agreement, the Company may
not, and may not permit any of its Restricted Subsidiaries to, secure the Credit Agreement
Obligations with a Lien on any of their respective properties without equally and ratably securing
the 2002 Notes Obligations; and



WHEREAS, in connection with such equal and ratable securing, the Company and the Noteholders
have decided to amend the Existing Note Purchase Agreement as set
forth below;


 


 









 





NOW, THEREFORE, for good and valuable consideration, the sufficiency and receipt of all of
which are hereby acknowledged, the Company and the Noteholders agree as follows:



1. Amendments. The Existing Note Purchase Agreement is amended as provided for by
this Amendment in the manner specified in Exhibit A (the “Note Purchase Agreement Amendments”);
provided that, at such time as the Intercreditor and Collateral Trust Agreement and all Liens
created by the Shared Security Documents have been terminated, the Note Purchase Agreement
Amendments (other than Section 4(b) of Exhibit A) shall cease to be effective and the Existing Note
Purchase Agreement, as amended by any amendments other than the Note Purchase Agreement Amendments
(except for Section 4(b) of Exhibit A), shall be in full force and effect. 



2. Acknowledgement of Equal and Ratable Lien. The Noteholders acknowledge that this
Amendment, the Intercreditor and Collateral Trust Agreement and the Shared Security Documents
satisfy the requirement of Section 10.5(k) of the Note Purchase Agreement that the Notes be equally
and ratably secured with the Credit Agreement Obligations in respect of the Collateral.



3. Conditions to Effectiveness of this Amendment. Notwithstanding any other provision
of this Amendment and without affecting in any manner the rights of the Noteholders hereunder, it
is understood and agreed that this Amendment shall not become effective, and the Company shall have
no rights hereunder, until satisfaction of the condition set forth in the last sentence of this
Section 3 and until each Noteholder shall have received:




(a) a copy of this Amendment executed by the Company, the Subsidiary Guarantors and
the Required Holders;




(b) a fully executed copy of Bank Amendment No. 2;




(c) fully executed copies of the Shared Security Agreement and such other Shared
Security Documents as the Required Holders shall deem appropriate in their reasonable
discretion, together with such financing statements and other documentation required to
perfect the Liens created by the Shared Secured Documents as the Required Holders shall
deem appropriate in their reasonable discretion;




(d) a fully executed copy of the Intercreditor and Collateral Trust Agreement;




(e) an amendment fee in an amount equal to 0.0625% of the outstanding principal amount
of the Notes held by such Noteholder (such fee to be paid in the manner and to the account
specified in the Note Purchase Agreement for payments of principal and interest in respect
of the Notes or to
such other account as such Noteholder shall have specified in writing to he Company);


 


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(f) favorable opinions of counsel from the Obligors’ in-house attorney and Lowenstein
Sandler PC in form and substance reasonably satisfactory to the Required Holders and
covering such matters (including as to the perfection of the security interest created
pursuant to the Shared Security Documents, the enforceability of the 2002 Note Documents,
the valid organization, good standing and due authorization of the Obligors, and the lack
of any conflicts of the Obligors (including with respect to any material agreements)) as
the Required Holders shall reasonably request; and




(g) payment of the reasonable fees, charges and disbursements of counsel to the
Noteholders incurred in connection with this Amendment.



In addition, all corporate and other proceedings in connection with the transactions contemplated
by this Amendment and all documents and instruments incident to such transactions shall be
satisfactory to the Required Holders and their special counsel (such satisfaction to be established
by the execution and delivery of this Amendment by the Required Holders). The date on which all
such conditions to the effectiveness of this Amendment have been met is referred to herein as the
“Effective Date”.



4. Representations and Warranties. To induce the Noteholders to enter into this
Amendment, the Company hereby represents and warrants to the Noteholders that:



(a) The execution and delivery by the Company of this Amendment, and the performance by the
Company of this Amendment and the Note Purchase Agreement (i) are within the Company’s power and
authority; (ii) have been duly authorized by all necessary corporate action; (iii) are not in
contravention of any provision of the Company’s certificate of incorporation or bylaws or other
organizational documents; (iv) do not violate any law or regulation, or any order or decree of any
Governmental Authority applicable to the Company or any Subsidiary; (v) do not conflict with or
result in the breach or termination of, constitute a default under or accelerate any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other instrument to which
the Company or any of its Subsidiaries is a party or by which the Company or any such Subsidiary or
any of their respective property is bound; (vi) do not result in the creation or imposition of any
Lien upon any of the property of the Company or any of its Subsidiaries (except pursuant to the
Shared Security Documents); and (vii) do not require the consent or approval of any Governmental
Authority or any other Person.



(b) This Amendment has been duly executed and delivered by the Company and this Amendment
constitutes, a legal, valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms except as the enforceability hereof and thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium and other laws affecting creditors’ rights and
remedies in general or by general principles of equity.


 


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(c) After giving effect to this Amendment and the transactions contemplated hereby, no Default
or Event of Default has occurred and is continuing as of the date hereof and as of the Effective
Date.



(d) No consideration has been paid or is payable by the Company to any other Person, in its
capacity as lender, as an inducement to the Company’s or such Person’s execution and delivery of
Bank Amendment No. 2, except as stated in Section 4(a)(ii) thereof.



5. Effect of Amendment. Except as set forth expressly herein, all terms of the
Existing Note Purchase Agreement, as amended hereby, shall be and remain in full force and effect.
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 the Noteholders under the Existing
Note Purchase Agreement, nor constitute a waiver of any provision of the Existing Note Purchase
Agreement. Any and all notices, requests, certificates and other instruments executed and
delivered after the execution and delivery of this Amendment may refer to the Existing Note
Purchase Agreement without making specific reference to this Amendment, but nevertheless all such
references shall include this Amendment unless the context otherwise requires.



6. Confirmation of Subsidiary Guaranties. By executing this Amendment each of the
Subsidiary Guarantors acknowledges and confirms that (a) the Subsidiary Guaranty continues in full
force and effect notwithstanding the Note Purchase Agreement Amendments and (b) the indebtedness,
liabilities and obligations of the Company under the Note Purchase Agreement constitute
indebtedness, liabilities and obligations guaranteed under the Subsidiary Guaranty. Nothing in
this Agreement extinguishes, novates or releases any right, claim, or entitlement of any of the
Noteholders created by or contained in the Note Purchase Agreement, the Notes or the Subsidiary
Guaranty nor is the Company or any Subsidiary Guarantor released from any covenant, warranty or
obligation created by or contained herein or therein, except as such covenants and obligations are
specifically amended by this Amendment.



7. Governing Law. This Amendment shall be governed by, and construed in accordance
with, the internal laws of the State of New York excluding choice-of-law principles of the law of
such State that would require the application of the laws of a jurisdiction other than such State.



8. No Novation. This Amendment is not intended by the parties to be, and shall not be
construed to be, a novation of the Existing Note Purchase Agreement or an accord and satisfaction
in regard thereto.



9. Counterparts. This Amendment may be executed by one or more of the parties hereto
in any number of separate counterparts, each of which shall be deemed an original and all of which,
taken together, shall be deemed to constitute one and the same instrument. Delivery of an executed
counterpart of this Amendment by facsimile transmission or by electronic mail in pdf form shall be
as effective as delivery of a manually executed counterpart hereof.


 


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10. Binding Nature. This Amendment shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns.



11. Entire Understanding. This Amendment sets forth the entire understanding of the
parties with respect to the matters set forth herein, and shall supersede any prior negotiations or
agreements, whether written or oral, with respect thereto.



12. Headings. The headings of the sections of this Amendment are inserted for
convenience only and shall not be deemed to constitute a part of this Amendment.



13. Updated Schedule A Information. Each Noteholder confirms that the information set
forth in Schedule A to the Existing Note Purchase Agreement is accurate as to it, except as
indicated on Annex 1 hereto.



[Signature Pages To Follow]



 


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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	COMPANY:



WESTWOOD ONE, INC.

 	 
	 	By:  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	SUBSIDIARY GUARANTORS:



METRO NETWORKS COMMUNICATIONS, INC.

 	 
	 	By  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	METRO NETWORKS COMMUNICATIONS, LIMITED PARTNERSHIP

 	 
	 	By:  	 METRO NETWORKS COMMUNICATIONS, INC.,
 	 
	 	 	as General Partner 	 
	 	 	 
	 	By  	  /s/ Gary J. Yusko
 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	METRO NETWORKS, INC.

 	 
	 	By  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 







	 	 	 	 	 
	 	METRO NETWORKS SERVICES, INC.

 	 
	 	By  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	SMARTROUTE SYSTEMS, INC.

 	 
	 	By  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	WESTWOOD NATIONAL RADIO CORPORATION

 	 
	 	By:  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	WESTWOOD ONE PROPERTIES, INC.

 	 
	 	By:  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	WESTWOOD ONE RADIO, INC.

 	 
	 	By:  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 







	 	 	 	 	 
	 	WESTWOOD ONE RADIO NETWORKS, INC.

 	 
	 	By:  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 
	 	WESTWOOD ONE STATIONS – NYC, INC.

 	 
	 	By:  	/s/ Gary J. Yusko 	 
	 	 	Name:  	Gary J. Yusko 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 









The foregoing is hereby agreed to as of the date thereof.



	 	 	 	 	 
	 	AMERITAS LIFE INSURANCE CORP. 	 
	 	By:  	      Summit Investment Partners, as Agent
 	 
	 	 	 
	 	By:  	
/s/ Andrew S. White
 	 
	 	 	Name:  	Andrew S. White 	 
	 	 	Title:  	Managing Director - Private Placements 	 
	 
	 	ACACIA LIFE INSURANCE COMPANY  	 
	 	By:  	      Summit Investment Partners, as Agent
 	 
	 	 	 	 
	 	 	 
	 	By:  	
/s/ Andrew S. White
 	 
	 	 	Name:  	Andrew S. White 	 
	 	 	Title:  	Managing Director - Private Placements 	 
	 
	 	NATIONWIDE MUTUAL INSURANCE COMPANY

 	 
	 	By:  	
/s/ Thomas S. Leggett
 	 
	 	 	Name:  	Thomas S. Leggett 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	SCOTTSDALE INSURANCE COMPANY

 	 
	 	By:  	/s/ Thomas S. Leggett 	 
	 	 	Name:  	Thomas S. Leggett 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 








	 	 	 	 	 
	 	NATIONWIDE LIFE INSURANCE COMPANY

 	 
	 	By:  	/s/ Thomas S. Leggett 	 
	 	 	Name:  	Thomas S. Leggett 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	NATIONWIDE LIFE INSURANCE COMPANY OF AMERICA

 	 
	 	By:  	/s/ Thomas S. Leggett 	 
	 	 	Name:  	Thomas S. Leggett 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	NATIONWIDE LIFE AND ANNUITY INSURANCE COMPANY

 	 
	 	By:  	/s/ Thomas S. Leggett 	 
	 	 	Name:  	Thomas S. Leggett 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY 	 
	 	By:  	 Babson Capital Management LLC,
 	 
	 	 	as Investment Adviser 	 
	 	 	 
	 	By:  	
/s/ Mark B. Ackerman
 	 
	 	 	Name:  	Mark B. Ackerman 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 







	 	 	 	 	 
	 	C.M. LIFE INSURANCE COMPANY  	 
	 	By:  	      Babson Capital Management LLC,
 	 
	 	 	as Investment Sub-Adviser 	 
	 	 	 
	 	By:  	  /s/ Mark B. Ackerman
 	 
	 	 	Name:  	Mark B. Ackerman 	 
	 	 	Title:  	Managing Director 	 
	 
	 	MASSMUTUAL ASIA LIMITED  	 
	 	By:  	Babson Capital Management LLC,
 	 
	 	 	as Investment Adviser 	 
	 	 	 
	 	By:  	     /s/ Mark B. Ackerman
 	 
	 	 	Name:  	Mark B. Ackerman 	 
	 	 	Title:  	Managing Director 	 
	 
	 	PRUDENTIAL RETIREMENT INSURANCE AND
ANNUITY COMPANY  	 
	 	By:  	      Prudential Investment Management, Inc.,
 	 
	 	 	as investment manager 	 
	 	 	 
	 	By:  	
/s/ Paul Procyk
 	 
	 	 	Name:  	Paul Procyk 	 
	 	 	Title:  	Vice-President 	 
	 
	 	ALLSTATE LIFE INSURANCE COMPANY

 	 
	 	By:  	/s/
Robert B. Bodett 	 
	 	 	Name:  	Robert B. Bodett 	 
	 	 	Title:  	Authorized Signatory 	 
	 
	 	By:  	
/s/ David Puckett
 	 
	 	 	Name:  	David Puckett 	 
	 	 	Title:  	Authorized Signatory 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 








	 	 	 	 	 
	 	BARCLAYS BANK PLC

 	 
	 	By:  	/s/
Ross Taylor 	 
	 	 	Name:  	Ross Taylor 	 
	 	 	Title:  	Managing Director 	 
	 	 	 	 	 
	 	RELIASTAR LIFE INSURANCE COMPANY  	 
	 	By:  	ING Investment Management LLC,
 	 
	 	 	as Agent 	 
	 	 	 
	 	By:  	
/s/ Christopher B. Lyons
 	 
	 	 	Name:  Christopher B. Lyons 	 
	 	 	Title:    Senior Vice President 	 
	 
	 	SECURITY LIFE OF DENVER INSURANCE
COMPANY (successor by merger to Southland Life Insurance Company)  	 
	 	By:  	       ING Investment Management LLC,
 	 
	 	 	as Agent 	 
	 	 	 
	 	By:  	
/s/ Christopher P. Lyons
 	 
	 	 	Name:  Christopher P. Lyons 	 
	 	 	Title:    Senior Vice President 	 
	 
	 	ING LIFE INSURANCE AND ANNUITY COMPANY	 
	 	By:  	      ING Investment Management LLC,
 	 
	 	 	as Agent 	 
	 	 	 
	 	By:  	     /s/ Christopher P. Lyons
 	 
	 	 	Name:  Christopher P. Lyons 	 
	 	 	Title:    Senior Vice President 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 








	 	 	 	 	 
	 	MONUMENTAL LIFE INSURANCE COMPANY

 	 
	 	By:  	/s/
Bill Henricksen 	 
	 	 	Name:  	Bill Henricksen 	 
	 	 	Title:  	Vice President 	 
	 
	 	NEW YORK LIFE INSURANCE COMPANY

 	 
	 	By:  	
/s/ A. Post Howland 	 
	 	 	Name:  	A. Post Howland 	 
	 	 	Title:  	Corporate Vice President 	 
	 
	 	NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION  	 
	 	By:  	New York Life Investment Management LLC,
 	 
	 	 	its Investment Manager 	 
	 	 	 
	 	By:  	  /s/ A. Post Howland
 	 
	 	 	Name:  	A. Post Howland 	 
	 	 	Title:  	Director 	 
	 
	 	NEW YORK LIFE INSURANCE AND ANNUITY 

CORPORATION INSTITUTIONALLY OWNED 

LIFE INSURANCE SEPARATE ACCOUNT (BOLI 3)

 	 
	 	By:  	       New York Life Investment Management LLC,
 	 
	 	 	its Investment Manager 	 
	 	 	 
	 	By:  	     /s/ A. Post Howland
 	 
	 	 	Name:  	A. Post Howland 	 
	 	 	Title:  	Director 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 








	 	 	 	 	 
	 	HARTFORD FIRE INSURANCE COMPANY  	 
	 	By:  	      Hartford Investment Management Company,
 	 
	 	 	its Agent and Attorney-in-Fact 	 
	 	 	 
	 	By:  	/s/ Matthew J. Poznak
 	 
	 	 	Name:  	Matthew J. Poznak 	 
	 	 	Title:  	Vice President 	 
	 



[Signature pages to First Amendment to 12/3/02 Note Purchase Agreement]





 


 









 







ANNEX 1




[Intentionally omitted]



 


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EXHIBIT A





1. Section 7.1 (“Information as to Company — Financial and Business Information”) is hereby
amended by deleting the “and” at the end of Section 7.1(e), inserting “; and” at the end of Section
7.1(f) in lieu of the period and inserting a new Section 7.1(g) to read as follows:




(g) simultaneously with the delivery thereof to the Banks under the Credit Agreement,
a copy of each report, notice or similar document delivered to the Banks under the Credit
Agreement (excluding (i) quarterly and annual financial statements and other documents that
are required by the terms of this Section 7.1 to be delivered to such holder and (ii)
information relating to pricing and borrowing availability under the Credit Agreement).



2. Section 8 (“Preypayment of the Notes”) is hereby amended by adding the following after the
end of Section 8.6:



“Section 8.7 Prepayment Upon Receipt of Specified Proceeds.




(a) Notice and Offer. In the event that any Specified Proceeds are required to be
applied pursuant to Section 4.01 of the Intercreditor and Collateral Trust Agreement at a
time when the Notes have not become due and payable pursuant to Section 12.1, the Company
will give written notice thereof to each holder of Notes. Such written notice shall
contain, and such written notice shall constitute, an irrevocable offer to prepay (the
“Specified Proceeds Prepayment Offer”), at the election of each holder, a portion of the
aggregate principal amount of the Notes held by such holder equal to such holder’s Ratable
Portion of such Specified Proceeds on a date specified in such notice (the “Specified
Proceeds Prepayment Date”) that is not less than thirty (30) days and not more than sixty
(60) days after the date of such notice. If the Specified Proceeds Prepayment Date shall
not be specified in such notice, the Specified Proceeds Prepayment Date shall be the
thirtieth (30th) day after the date of such notice.




(b) Acceptance and Payment. To accept such Specified Proceeds Prepayment Offer, a
holder of Notes shall cause a notice of such acceptance to be delivered to the Company not
later than twenty (20) days after the date of receipt of such written notice from the
Company, provided, that failure to accept such offer in writing within twenty (20) days
after the date of such written notice shall be deemed to be an acceptance of the Specified
Proceeds Prepayment Offer. If so accepted by any holder of a Note, such offered prepayment
shall be due and payable on the Specified Proceeds Prepayment Date. Such offered
prepayment shall be made at one hundred percent (100%) of the aggregate principal amount of
such Notes being so prepaid together with the applicable Make-Whole Amount and interest on
such principal amount then being prepaid accrued to the Specified
Proceeds Prepayment Date.


 


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(c) Officer’s Certificate. Each offer to prepay the Notes pursuant to this Section
8.7 shall be accompanied by a certificate, executed by a Senior Financial Officer and dated
the date of such offer, specifying:




(i) the Specified Proceeds Prepayment Date and the amount of the Specified
Proceeds being applied by the Company and its Subsidiaries to the offer to prepay
the Notes and the repayment of Debt outstanding under the Credit Agreement;




(ii) that such offer is being made pursuant to Section 8.7 of this Agreement;




(iii) the principal amount of each Note offered to be prepaid;




(iv) the interest that would be due on the principal amount of each such Note
offered to be prepaid, accrued to the Specified Proceeds Prepayment Date; and




(v) in reasonable detail, the nature of the event giving rise to such offer.”



3. Section 9 (Affirmative Covenants”) is hereby amended by adding at the end thereof the
following Section 9.8:




“Section 9.8. Further Assurances.




(a) The Company will, and will cause each of its Restricted Subsidiaries to,
maintain with respect to the Collateral owned or held by it the security interests
created by the Shared Security Documents as perfected security interests having at
least the priorities described therein and in this Agreement and defend such
security interests aginst the claims and demands of all Persons whomsoever.
Without limiting the generality of the foregoing, except as otherwise permitted
under the Shared Security Documents or under this Agreement, no Obligor shall (i)
file or suffer to be on file, or authorize or permit to be filed or to be on file,
in any jurisdiction, any financing statement or like instrument with respect to any
of the Collateral in which the Collateral Trustee is not named as the sole secured
party for the benefit of the Secured Parties, or (ii) cause or permit any Person
other than the Collateral Trustee to have “control” (within the meaning of Sections
9-104, 9-105, 9-106 or 9-107 of the New York Uniform Commercial Code) over any part
of the Collateral.


 


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(b) The Company will, and will cause each of its Restricted
Subsidiaries to, furnish to the holders of the Notes and the Collateral
Trustee from time to time statements and schedules identifying and describing its
property and such other reports in connection with the Collateral as the Required
Holders or the Collateral Trustee may reasonably request, all in reasonable detail,
provided that, so long as no Event of Default shall have occurred and be
continuing, only two such requests shall be permitted in any calendar year.




(c) The Company will, and will cause each of its Restricted Subsidiaries to,
at any time and from time to time, and at its sole expense, promptly and duly
execute and deliver, and have recorded, such instruments and documents and take
such further actions as shall be necessary or as shall be reasonably requested by
the holders of the Notes or the Collateral Trustee to obtain or preserve the full
benefits of the Shared Security Documents and the rights and powers therein
granted, including the filing of any financing or continuation statements under the
Uniform Commercial Code (or other similar laws) in effect in any jurisdiction with
respect to the security interests created under the Shared Security Documents with
respect to the Collateral owned or held by any of them.




(d) If it shall acquire any real property interest, including improvements,
having a fair market value (as reasonably determined by the Company in good faith)
of $2,500,000 or more (or shall make improvements upon any existing real property
interest resulting in the fair market value (as reasonably determined by the
Company in good faith) of such interest together with such improvements being equal
to $2,500,000 or more), then (subject, in the case of any such interest that is a
leasehold interest, to the delivery by the relevant landlord(s) of any required
landlord consent) the Company or any of its Restricted Subsidiaries, as the case
may be, will execute and deliver in favor of the Collateral Trustee a mortgage,
deed of trust or deed to secure debt (as appropriate for the jurisdiction in which
such respective real property is situated) pursuant to which it will create a Lien
upon such real property interest (and improvements) in favor of the Collateral
Trustee for the benefit of the Secured Parties as collateral security for the
“Secured Obligations” (as defined in the Intercreditor and Collateral Trust
Agreement), and will deliver (or, or in case of landlords’ consents, will use its
best efforts to cause the relevant landlord(s) to deliver) such opinions of
counsel, landlords’ consents, surveys and title insurance policies as the holders
of the Notes or the Collateral Trustee shall reasonably request in connection
therewith.”



 


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4. Section 10 (“Negative Covenants”) is hereby amended as follows:



(a) Section 10.5 (“Limitation on Liens”) is hereby amended by (i) deleting “and” at the end of
Section 10.5(j), (ii) inserting “; and” in lieu of the period at the end of
Section 10.5(k) and (iii) inserting a new Section 10.5(l) to read as follows:




(l) Liens created pursuant to the Shared Security Documents.



(b) The text of Section 10.6 (“Limitation on Modifications of the Management Agreement”) is
hereby amended and restated to read “[Intentionally omitted.]”.



(c) The following new Sections 10.7 and 10.8 are hereby added to Section 10:




Section 10.7. Limitation on Sale of Assets. The Company will not, and will not
permit any Restricted Subsidiary to, convey, sell, lease, assign, transfer or otherwise
dispose of any of its property, business or assets (including, without limitation,
receivables and leasehold interests), whether now owned or hereafter acquired, or, in the
case of any Restricted Subsidiary, issue or sell any shares of such Restricted Subsidiary’s
Capital Stock to any Person other than the Company or any wholly owned Restricted
Subsidiary, except:




(a) the sale or other disposition of any property in the ordinary course of
business;




(b) any sale, assignment, transfer or other disposition of Capital Stock of
any Unrestricted Subsidiary so long as the proceeds of such transaction are applied
to the purchase of other assets within 12 months of receipt thereof;




(c) the sale or other disposition of any other property, business or asset
with an aggregate fair market value not to exceed $5,000,000 so long as (i) the
consideration received shall be an amount at least equal to the fair market value
thereof; (ii) at least 90% of the consideration received shall be cash; (iii) the
proceeds of such sale or other disposition are applied to the purchase of other
assets within 12 months of receipt thereof; and (iv) no Default or Event of Default
shall have occurred and be continuing or would result therefrom; and




(d) any sale, lease, transfer, or other disposition of any or all of a
Restricted Subsidiary‘s assets (upon voluntary liquidation or otherwise) to the
Company or any wholly owned Restricted Subsidiary.




Section 10.8. Limitation on Sale or Discount of Receivables. The Company will not
and will not permit any of its Restricted Subsidiaries to, discount or sell with recourse,
or sell for less than the greater of the face value or market value thereof, any of its
notes receivable or accounts receivable.



 


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5. Section 11 (“Events of Default”) is hereby amended by deleting the “or” at the end of
Section 11(j), replacing the period at the end of Section 11(k) with a semi-colon followed by the
word “or”; and adding a new Section 11(l) to read in its entirety as follows:




(l) the Liens created by the Shared Security Documents shall at any
time not constitute valid and perfected Liens on the collateral intended to be covered
thereby (to the extent perfection by billing, registration, recordation or possession is
required therein or in this Agreement) in favor of the Collateral Trustee, free and clear
of all other Liens (other than Liens permitted under Section 10.5 or under the Shared
Security Documents), or, except for expiration in accordance with its terms, any of the
Shared Security Documents shall for whatever reason be terminated or cease to be in full
force and effect, or the enforceability thereof shall be contested by any Obligor;



6. Schedule B of the Existing Note Purchase Agreement is hereby amended by amending and
restating the definition of “Credit Agreement” therein to read as follows:




“Credit Agreement” means that certain Credit Agreement dated as of March, 3, 2004 by
and among the Company, the Subsidiary Guarantors party thereto, the Banks party thereto,
JPMorgan Chase Bank, N.A. as agent for such Banks, and all other Persons party thereto, all
as amended or refinanced from time to time.



7. Schedule B of the Existing Note Purchase Agreement is amended to add the following
definitions in their appropriate alphabetical order:




“Capital Stock” means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all equivalent
ownership interests in a Person other than a corporation, and any and all warrants or
options to purchase any of the foregoing.




“Collateral” has the meaning set forth in the Intercreditor and Collateral Trust
Agreement.




“Collateral Trustee” means means the Person acting as collateral trustee for the Banks
and the Noteholders under the Shared Security Agreement and the other Shared Security
Documents.




“Intercreditor and Collateral Trust Agreement” means that certain Intercreditor and
Collaterall Trust Agreement dated as of February 28, 2008 by and among the Company, the
Subsidiary Guarantors party, the Administrative Agent, the Collateral Trustee and the
holders of the Notes.




“Obligor” is defined in the Intercreditor and Collateral Trust Agreement.




“Secured Party” is defined in the Intercreditor Agreement.




“Shared Security Agreement” is defined in the Intercreditor and Collateral Trust
Agreement.




“Shared Security Documents” is defined in the Intercreditor and Collateral
Trust Agreement.




“Specified Proceeds” means Shared Amounts (as defined in the Intercreditor and
Collateral Trust Agreement).




 


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