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.
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,
1
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
a
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