exv10w2



 






Exhibit 10.2




SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT




     THIS SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”), dated as of June
10, 2002, is entered into by and among ARBITRON INC., a Delaware corporation formerly known as
Ceridian Corporation (the “Company”) and each of the Note Holders named on the signature
page hereto.



RECITALS




     A. The Company and each Note Holder are parties to that certain Note Purchase Agreement dated
as of January 31, 2001, as amended as of March 29, 2001 (the “Note Purchase Agreement”)
pursuant to which the Note Holders have extended certain credit facilities to the Company.



     B. The Company has requested that the Note Holders agree to certain clarifying amendments to
the Note Purchase Agreement and the Company has requested the Lenders (as defined in the Note
Purchase Agreement) to agree to certain corresponding amendments to the New Credit Facility (as
defined in the Note Purchase Agreement) to implement the original intent of the parties thereto.



     C. The Note Holders are willing to amend the Note Purchase Agreement and to acknowledge that
the proposed corresponding amendments to the New Credit Facility (as defined in the Note Purchase
Agreement) do not require their consent under the terms of the Intercreditor Agreement (as defined
in the Note Purchase Agreement) subject to the terms and conditions of this Amendment.



     NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:



     1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings, if any, assigned to them in the Note Purchase Agreement.



     2. Amendments to Note Purchase Agreement. The Note Purchase Agreement shall be
amended as follows, effective as of the Effective Date:



          (a) Section 2.05(b)(ii) of the Note Purchase Agreement shall be amended in its
entirety as follows:





(ii) No notice or prepayment shall be required under this subsection (b) in connection with
(A) the issuance of equity securities pursuant to Section 7.07(a)(i), or (B) the
Acquisition by the Company or any Subsidiary of cash or Cash Equivalents in any Permitted
Acquisition, provided that the cash or Cash Equivalents so acquired is merely
incidental to such Permitted Acquisition, or (C) the issuance of any debt instrument or
incurrence of debt pursuant to the New Credit Facility, or (D) the issuance of equity
securities in connection with any employee or director stock options or grants, employee
stock purchase plan or other compensation or benefit arrangement for any employee,



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director or consultant of the Borrower or any Affiliate thereof, not otherwise prohibited
hereunder.



     3. Representations and Warranties. The Company hereby represents and warrants to the
Administrative Agent and the Note Holders as follows:



          (a) No Default or Event of Default has occurred and is continuing.




          (b) The execution, delivery and performance by the Company of this Amendment have been duly
authorized by all necessary corporate and other action and do not and will not require any
registration with, consent or approval of, notice to or action by, any Person (including any
Governmental Authority) in order to be effective and enforceable. The Note Purchase Agreement, as
amended by this Amendment, constitutes the legal, valid and binding obligation of the Company,
enforceable against it in accordance with its respective terms, without defense, counterclaim or
offset.




          (c) All representations and warranties of the Company contained in Article V of the
Note Purchase Agreement are true and correct as of the Effective Date, except to the extent such
representations and warranties specifically refer to an earlier date, in which case they shall be
true and correct as of such earlier date.




          (d) The Company is entering into this Amendment on the basis of its own investigation and for
its own reasons, without reliance upon the Note Holders or any other Person.




     4. Effective Date. This Amendment will become effective as of January 31, 2001 when
each of the conditions precedent set forth in this Section 4 has been satisfied (the
“Effective Date”):



          (a) The Note Holder Representative shall have received from the Company and each of the Note
Holders a duly executed original (or, if elected by the Note Holder Representative, an executed
facsimile copy) counterpart to this Amendment.




          (b) The Note Holder Representative shall have received from the Company a certificate executed
by the secretary or assistant secretary of the Company providing satisfactory evidence of the
authorization of the execution, delivery and performance by the Company of this Amendment.




          (c) The Note Holder Representative shall have received from the Company a certificate executed
by a Responsible Officer of the Company dated as of the date hereof stating that all
representations and warranties contained herein are true and correct on and as of the date hereof
as though made on and as of such date.




          (d) The Company shall have paid all Attorney Costs of the Note Holder Administrator to the
extent invoiced prior to the date hereof, plus such additional amounts of Attorney Costs as shall
constitute the Note Holder Administrator’s reasonable estimate of Attorney Costs incurred or to be
incurred by it through the closing proceedings related to this




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Amendment (provided that such estimate shall not thereafter preclude a final settling
of accounts between the Company and the Note Holder Representative).




          (e) The Second Amendment to Credit Agreement dated as of June 10, 2002 (in the form made
available to the Note Holders) (the “Credit Agreement Amendment”) has been executed by the
Company and all of the Lenders under the New Credit Facility (as defined in the Credit Agreement).




          (f) The Note Holder Representative shall have received, in form and substance satisfactory to
it, such additional approvals, consents, opinions, documents and other information as the Note
Holder Representative may request.




     5. Reservation of Rights. The Company acknowledges and agrees that the execution and
delivery by the Note Holder Representative and the Note Holders of this Amendment shall not (a) be
deemed to create a course of dealing or otherwise obligate the Note Holder Representative or the
Note Holders to execute similar amendments under the same or similar circumstances in the future or
(b) be deemed to create any implied waiver of any right or remedy of the Note Holder Representative
or any Note Holder with respect to any term or provision of any Loan Document.



     6. Miscellaneous.



          (a) Except as herein expressly amended, all terms, covenants and provisions of the Note
Purchase Agreement are and shall remain in full force and effect and all references therein to such
Credit Agreement shall henceforth refer to the Note Purchase Agreement as amended by this
Amendment. This Amendment shall be deemed incorporated into, and a part of, the Note Purchase
Agreement.




          (b) This Amendment shall be binding upon and inure to the benefit of the parties hereto and
thereto and their respective successors and assigns. No third party beneficiaries are intended in
connection with this Amendment.




          (c) THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTIONS 10.17 AND 10.18 OF
THE NOTE PURCHASE AGREEMENT RELATING TO GOVERNING LAW AND WAIVER OF RIGHT TO TRIAL BY JURY, THE
PROVISIONS OF WHICH ARE BY THIS REFERENCE HEREBY INCORPORATED HEREIN IN FULL.




          (d) This Amendment may be executed in any number of counterparts, each of which shall be
deemed an original, but all such counterparts together shall constitute but one and the same
instrument. Each of the parties hereto understands and agrees that this document (and any other
document required herein) may be delivered by any party thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed promptly by mailing
of a hard copy original, and that receipt by the Note Holder Representative of a facsimile
transmitted document purportedly bearing the signature of a Note Holder or the Company shall bind
such Note Holder or the Company, respectively, with the same force and effect as the delivery of a
hard copy original. Any failure by the Note Holder Representative to receive the hard copy
executed original of such document shall not diminish the binding effect of




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receipt of the facsimile transmitted executed original of such document of the party whose
hard copy page was not received by the Note Holder Representative.




          (e) This Amendment, together with the Note Purchase Agreement, contains the entire and
exclusive agreement of the parties hereto with reference to the matters discussed herein and
therein. This Amendment supersedes all prior drafts and communications with respect thereto. This
Amendment may not be amended except in accordance with the provisions of Section 10.01 of
the Note Purchase Agreement.




          (f) If any term or provision of this Amendment shall be deemed prohibited by or invalid under
any applicable law, such provision shall be invalidated without affecting the remaining provisions
of this Amendment or the Note Purchase Agreement, respectively.




          (g) The Company covenants to pay to or reimburse the Note Holder Representative and the Note
Holders, upon demand, for all out-of-pocket costs and expenses incurred in connection with the
development, preparation, negotiation, execution and delivery of this Amendment.




          (h) This Amendment shall constitute a “Note Document” under and as defined in the Note
Purchase Agreement.




          (i) The Note Holders acknowledge and agree that this Amendment and the Credit Agreement
Amendment, do not under the terms of the Intercreditor Agreement require the consent of the
Instructing Group (as defined in the Intercreditor Agreement).




(Remainder of page intentionally left blank)






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     IN WITNESS WHEREOF, the parties hereto have executed and delivered this Amendment as of the
date first above written.



    	 	 	 	 	 	 	 
	COMPANY:	 	ARBITRON INC.	 	 
	 
	 	 	 	 	 	 
	 
          
	 	By:	 	/s/ William J. Walsh	 	 
	 
          
	 	 	 	 	 	 
	 
          
	 	Name:	 	William J. Walsh	 	 
	 
          
	 	 	 	 	 	 
	 	 	Title:	 	Executive Vice President of Finance and	 	 
	 
          
	 	 	 	Planning and Chief Financial Officer	 	 
	 
          
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	NOTEHOLDERS:	 	JOHN HANCOCK LIFE INSURANCE
          COMPANY	 	 
	 
	 	 	 	 	 	 
	 
          
	 	By: 	 	/s/ Gary M. Pelletier	 	 
	 
          
	 	 	 	 	 	 
	 
          
	 	Name: 	 	Gary M. Pelletier	 	 
	 
          
	 	Title: 	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	JOHN HANCOCK VARIABLE LIFE
          INSURANCE COMPANY	 	 
	 
	 	 	 	 	 	 
	 
          
	 	By: 	 	/s/ Gary M. Pelletier	 	 
	 
          
	 	 	 	 	 	 
	 
          
	 	Name: 	 	Gary M. Pelletier	 	 
	 
          
	 	Title: 	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	COMMONWEALTH OF PENNSYLVANIA
          STATE EMPLOYEE’S RETIREMENT SYSTEM	 	 
	 	 	By: John Hancock Life Insurance
          Company, as Investment Advisor	 	 
	 
	 	 	 	 	 	 
	 
          
	 	By: 	 	/s/ Gary M. Pelletier	 	 
	 
          
	 	 	 	 	 	 
	 
          
	 	Name: 	 	Gary M. Pelletier	 	 
	 
          
	 	Title:	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 	 	SIGNATURE 4 LIMITED	 	 
	 	 	By: John Hancock Life Insurance
          Company, as Investment Advisor	 	 
	 
	 	 	 	 	 	 
	 
          
	 	By: 	 	/s/ Gary M. Pelletier	 	 
	 
          
	 	 	 	 	 	 
	 
          
	 	Name: 	 	Gary M. Pelletier	 	 
	 
          
	 	Title: 	 	Managing Director	 	 





(Signature Page to Amendment)



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	 	 	SIGNATURE 5 LIMITED	 	 
	 	 	By: John Hancock Life Insurance Company, as Investment Advisor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Gary M. Pelletier	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:
	 	Gary M. Pelletier	 	 
	 

	 	Title:
	 	Managing Director	 	 






(Signature Page to Amendment)




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GUARANTOR ACKNOWLEDGMENT AND CONSENT




     The undersigned, a Guarantor with respect to the Company’s Obligations to the Note Holders
under the terms of the Note Purchase Agreement, hereby (i) acknowledges and consents to the
execution, delivery and performance by Company of the foregoing Second Amendment to Note Purchase
Agreement dated as of June 10, 2002 (the “Amendment”), and (ii) reaffirms and agrees that
the Guaranty as to which the undersigned is party, and all other Note Documents and agreements
executed and delivered by the undersigned to Collateral Agent and the Note Holders in connection
with the Note Purchase Agreement, are in full force and effect without defense, offset or
counterclaim.



     All capitalized terms used herein and not otherwise defined shall have the meanings assigned
to them in the Note Purchase Agreement.



     This Guarantor Acknowledgment and Consent may be executed in any number of counterparts, each
of which shall be deemed an original, but all such counterparts together shall constitute but one
instrument.



	 	 	 	 	 	 	 
	 	 	ARBITRON HOLDINGS INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	  /s/ William J. Walsh	 	 
	 

	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	    William J. Walsh