2 - 3 (b) Section 7 of the Loan Agreement shall be further modified and amended by deleting subsection (v) of Section 7.7, "Restricted Payments and Purchases," and by substituting the following therefor:
1
EXHIBIT 4.39
FIFTH AMENDMENT
TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS FIFTH AMENDMENT TO SECOND AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment") made as of the 1st day of May, 1998, among
Chancellor Media Corporation of Los Angeles, a Delaware corporation (formerly
known as Evergreen Media Corporation of Los Angeles) (the "Borrower"), the
financial institutions whose names appear as Lenders on the signature pages
hereto (collectively, the "Lenders"), Toronto Dominion (Texas), Inc., Bankers
Trust Company, The Bank of New York, NationsBank of Texas, N.A. and Union Bank
of California (collectively, the "Managing Agents"), Toronto Dominion Securities
(USA), Inc. (the "Syndication Agent") and Toronto Dominion (Texas), Inc., as
administrative agent for the Lenders (the "Administrative Agent"),
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders, the Managing Agents, the
Syndication Agent and the Administrative Agent are parties to that certain
Second Amended and Restated Loan Agreement dated as of April 25, 1997, as
modified and amended by that certain First Amendment to Second Amended and
Restated Loan Agreement dated as of June 26, 1997, as further modified and
amended by that certain Second Amendment to Second Amended and Restated Loan
Agreement dated as of August 7, 1997, as further modified by that certain Third
Amendment to Second Amended and Restated Loan Agreement dated as of October 28,
1997, and as further modified and amended by that certain Fourth Amendment to
Second Amended and Restated Loan Agreement dated as of February 10, 1998 (as
amended, the "Loan Agreement"); and
WHEREAS, the Borrower has requested the Administrative Agent,
the Managing Agents, the Syndication Agent and the Lenders to agree to amend
certain covenants in the Loan Agreement as more fully set forth herein;
NOW, THEREFORE, for and in consideration of the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, the
parties agree that all capitalized terms used herein shall have the meanings
ascribed thereto in the Loan Agreement except as otherwise defined or limited
herein, and further agree as follows:
1. Amendment to Article 1. Article 1 of the Loan Agreement,
Definitions, is hereby modified by deleting the existing definition of
"Subordinated Indebtedness" and by substituting the following therefor:
"'Subordinated Indebtedness' shall mean (a) the CRBC
Subordinated Indebtedness assumed by the Borrower, (b) the KMC
Subordinated Notes assumed by the Borrower, and (c) any other
Indebtedness for Money Borrowed or Guaranties thereof of the
Borrower or the Parent Company or KMG or CMHC, which is
expressly subordinated to the Obligations and which, in
addition, meets each of the following criteria: (i) such
Indebtedness for Money Borrowed or Guarantees thereof shall be
unsecured; (ii) such Indebtedness for Money Borrowed shall
have no amortization of principal prior to the Maturity Date
and shall mature at least one year and one day after the
Maturity Date; (iii) the terms, provisions and covenants of
such Indebtedness for Money Borrowed and any subordinated
unsecured
2
Guarantees must (A) be less restrictive than, and not in
conflict with, the terms, provisions and covenants set forth
in the Loan Documents, and (B) not be cross-defaulted to the
Loan Documents (except for the occurrence of an Event of
Default as a result of the Borrower's failure to pay the
Obligations in full on the Maturity Date or the acceleration
of the Obligations under Section 8.2(a)(ii) or Section
8.2(b)); (iv) the documentation of the subordination
provisions therefor shall prohibit the payment of principal,
interest and fees on such Indebtedness for Borrowed Money upon
the occurrence, and during the continuation, of an Event of
Default under Section 8.1(b) hereof, and shall prohibit the
payment of principal, interest and fees on such Indebtedness
for Borrowed Money for a period of 179 days after the
occurrence of any Event of Default under Section 8.1 (other
than Section 8.1(b)), and shall otherwise be acceptable to the
Administrative Agent; (v) no Default or Event of Default shall
exist either immediately prior to, and giving effect to, the
incurrence of such Indebtedness for Borrowed Money; and (vi)
such Indebtedness for Money Borrowed shall not be incurred
unless, prior to its incurrence, the Borrower shall have
delivered to each of the Lenders updated financial projections
(prepared in good faith and using assumptions reasonable under
the circumstances) demonstrating that, after giving effect to
the incurrence of such Indebtedness for Money Borrowed,
compliance with all financial covenants under this Agreement
is maintained from the date of such projections through the
Maturity Date."
2. Amendment to Article 7. (a) Section 7 of the Loan Agreement,
Negative Covenants, is hereby modified and amended by deleting subsection (vii)
of Section 7.1, "Indebtedness of the Borrower and its Subsidiaries," and by
substituting the following therefor:
"(vii) (a) On and after the Merger Date, (x) CRBC
Subordinated Indebtedness (provided that any financial
covenants set forth in the documents governing the CRBC
Subordinated Indebtedness which are more restrictive than the
financial covenants set forth in this Article 7 shall be
amended to be no more restrictive prior to such assumption of
the CRBC Subordinated Indebtedness), or (y) any Subordinated
Indebtedness issued solely to refinance the CRBC Subordinated
Indebtedness and which does not increase the principal amount
thereof, (b) the Subordinated Indebtedness evidenced by the
KMC Subordinated Notes and (c) additional Subordinated
Indebtedness (including unsecured, subordinated Guaranties
issued by the Borrower or any of its Subsidiaries of
Subordinated Indebtedness issued by the Parent Company, CMHC
or KMG) in an aggregate principal amount not exceeding
$900,000,000, any one time outstanding; provided, however,
that amounts of additional Subordinated Indebtedness in excess
of $500,000,000 under this clause (c) may be incurred or
assumed only upon conversion of the Borrower's Preferred Stock
(limited for purposes hereof to its 12 1/4% Senior PIK
Exchangeable Preferred Stock and its 12% Junior PIK
Exchangeable Preferred Stock) into Subordinated
Indebtedness;..."
- 2 -
3
(b) Section 7 of the Loan Agreement shall be further modified and
amended by deleting subsection (v) of Section 7.7, "Restricted Payments and
Purchases," and by substituting the following therefor:
"(v) for the sole purpose of purchasing, redeeming, acquiring
or retiring the Borrower's Preferred Stock (limited for
purposes hereof to its 12 1/4% Senior PIK Exchangeable
Preferred Stock and to its 12% Junior PIK Exchangeable
Preferred Stock), or Subordinated Indebtedness into which such
Preferred Stock is exchanged, additional funds made available
to the Borrower through the issuance by the Parent Company
after the date of the Fourth Amendment to this Agreement of
additional equity, the proceeds of which are contributed as
equity to the Borrower. . ."
3. No Other Amendments or Waivers. Except for the amendments set
forth above, the text of the Loan Agreement and the other Loan Documents shall
remain unchanged and in full force and effect, and the Lenders and the
Administrative Agent expressly reserve the right to require strict compliance
with the terms of the Loan Agreement and the other Loan Documents.
4. Effectiveness; Conditions Precedent. Upon execution of this
Amendment by the Required Lenders, the provisions of this Amendment shall be
effective subject only to the prior fulfillment of each of the following
conditions:
(a) The representations and warranties of the Borrower
under the Loan Agreement and of other obligors under the other Loan Documents
shall be true and correct as of the date hereof, and no Default or Event of
Default shall exist as of the date hereof; and
(b) The Administrative Agent's receipt of all such other
certificates, reports, statements, or other documents as the Administrative
Agent, any Managing Agent, or any Lender may reasonably request.
5. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original and all of which,
taken together, shall constitute one and the same agreement.
6. Governing Law. This Amendment shall be deemed to be made
pursuant to the laws of the State of New York with respect to agreements made
and to be performed wholly in the State of New York and shall be construed,
interpreted, performed and enforced in accordance therewith.
7. Loan Document. This Amendment shall be deemed to be a Loan
Document for all purposes under the Loan Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
- 3 -
4
IN WITNESS WHEREOF, the parties hereto have caused their respective
duly authorized officers or representatives to execute and deliver this
Amendment as of the day and year first above written.
BORROWER: CHANCELLOR MEDIA CORPORATION OF LOS
ANGELES, a Delaware corporation
By:
---------------------------------
Name:
---------------------------
Its: Chief Financial Officer
Attest:
------------------------
Name:
------------------
Its: Vice President
ADMINISTRATIVE AGENT: TORONTO DOMINION (TEXAS), INC., a
Delaware corporation
By:
---------------------------------
Name:
---------------------------
Its: Vice President
COLLATERAL AGENT: TORONTO DOMINION (TEXAS), INC., a
Delaware corporation
By:
---------------------------------
Name:
---------------------------
Its: Vice President
ISSUING BANK: THE TORONTO-DOMINION BANK
By:
---------------------------------
Name:
---------------------------
Its: Manager
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 1
5
MANAGING AGENTS TORONTO DOMINION (TEXAS), INC., a
AND LENDERS: Delaware corporation
By:
---------------------------------
Name:
---------------------------
Its: Vice President
THE BANK OF NEW YORK
By:
---------------------------------
Name:
---------------------------
Its: Vice President
NATIONSBANK OF TEXAS, N.A.
By:
---------------------------------
Name:
---------------------------
Its: Senior Vice President
UNION BANK OF CALIFORNIA
By:
---------------------------------
Name:
---------------------------
Its: Vice President
BANKERS TRUST COMPANY
By:
---------------------------------
Name:
---------------------------
Its: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ SENIOR FLOATING RATE FUND,
INC.
By:
---------------------------------
Name:
---------------------------
Its: Authorized Signatory
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 2
6
▇▇▇ ▇▇▇▇▇▇ AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By:
---------------------------------
Name:
---------------------------
Its: Senior Vice President &
Director
BANK OF AMERICA NT&SA
By:
---------------------------------
Name:
---------------------------
Its: Vice President
BANKBOSTON, N.A.
By:
---------------------------------
Name:
---------------------------
Its: Director
BANQUE PARIBAS, LOS ANGELES AGENCY
By:
---------------------------------
Name:
---------------------------
Its: Vice President
By:
---------------------------------
Name:
---------------------------
Its: Group Vice President
BARCLAYS BANK PLC
By:
---------------------------------
Name:
---------------------------
Its: Associate Director
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 3
7
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By:
---------------------------------
Name:
---------------------------
Its: Vice President
By:
---------------------------------
Name:
---------------------------
Its: Vice President
CREDIT LYONNAIS, NEW YORK BRANCH
By:
---------------------------------
Name:
---------------------------
Its: Vice President
CREDIT SUISSE FIRST BOSTON
By:
---------------------------------
Name:
---------------------------
Its: Director
By:
---------------------------------
Name:
---------------------------
Its: Vice President
THE DAI-ICHI KANGYO BANK, LTD.
By:
---------------------------------
Name:
---------------------------
Its: Vice President
KEY CORPORATE CAPITAL INC.
By:
---------------------------------
Name:
---------------------------
Its: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 4
8
SOCIETE GENERALE
By:
---------------------------------
Name:
---------------------------
Its: Vice President
BANK OF MONTREAL
By:
---------------------------------
Name:
---------------------------
Its: Senior Vice President
CORESTATES BANK, N.A.
By:
---------------------------------
Name:
---------------------------
Its: Vice President
FLEET NATIONAL BANK
By:
---------------------------------
Name:
---------------------------
Its: Assistant Vice President
THE FUJI BANK, LIMITED, HOUSTON AGENCY
By:
---------------------------------
Name:
---------------------------
Its: Vice President & Manager
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By:
---------------------------------
Name:
---------------------------
Its: Joint General Manager
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 5
9
MELLON BANK, N.A.
By:
---------------------------------
Name:
---------------------------
Its: Vice President
PNC BANK, NATIONAL ASSOCIATION
By:
---------------------------------
Name:
---------------------------
Its: Vice President
SANWA BANK LIMITED
By:
---------------------------------
Name:
---------------------------
Its: Vice President
THE BANK OF NOVA SCOTIA
By:
---------------------------------
Name:
---------------------------
Its: Authorized Signatory
THE SUMITOMO BANK, LTD.
By:
---------------------------------
Name:
---------------------------
Its: Vice President and Manager
By:
---------------------------------
Name:
---------------------------
Its: Vice President
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
---------------------------------
Name:
---------------------------
Its: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 6
10
ABN-AMRO BANK, N.V. - HOUSTON AGENCY
By:
---------------------------------
Name:
---------------------------
Its: Vice President
By:
---------------------------------
Name:
---------------------------
Its: Group Vice President
DRESDNER BANK AG, NEW YORK BRANCH
By:
---------------------------------
Name:
---------------------------
Its: Assistant Treasurer
By:
---------------------------------
Name:
---------------------------
Its: Vice President
SUMMIT BANK
By:
---------------------------------
Name:
---------------------------
Its: Vice President
THE TOKAI BANK, LIMITED
By:
---------------------------------
Name:
---------------------------
Its: Assistant General Manager
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 7
▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
BRANCH
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
▇▇▇▇▇ FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
---------------------------------
Name:
---------------------------
Its: Banking Officer
BANK OF IRELAND
By:
---------------------------------
Name:
---------------------------
Its: Account Manager
CREDIT AGRICOLE INDOSUEZ
By:
---------------------------------
Name:
---------------------------
Its: Senior Vice President/
Branch Manager
By:
---------------------------------
Name:
---------------------------
Its:
-----------------------------
CRESTAR BANK
By:
---------------------------------
Name:
---------------------------
Its: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 8
12
▇▇▇▇▇▇ BANK, LTD., NEW YORK BRANCH
By:
---------------------------------
Name:
---------------------------
Its: Vice President
By:
---------------------------------
Name:
---------------------------
Its: Vice President
NATIONAL CITY BANK
By:
---------------------------------
Name:
---------------------------
Its: Vice President
THE ROYAL BANK OF SCOTLAND PLC
By:
---------------------------------
Name:
---------------------------
Its: Vice President
▇▇▇▇▇ BANK, N.A.
By:
---------------------------------
Name:
---------------------------
Its: Vice President
THE SUMITOMO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By:
---------------------------------
Name:
---------------------------
Its: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 9
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇
By:
---------------------------------
Name:
---------------------------
Its: Vice President
By:
---------------------------------
Name:
---------------------------
Its: Assistant Vice President
CITY NATIONAL BANK
By:
---------------------------------
Name:
---------------------------
Its: Senior Vice President
SENIOR DEBT PORTFOLIO
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
BANK OF SCOTLAND
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
NATEXIS BANQUE
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 10
14
▇▇▇▇▇▇ FINANCIAL, INC.
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS, L.P.
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS, INC.
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
GULF INTERNATIONAL BANK B.S.C.
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
THE CHASE MANHATTAN BANK
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
THE MITSUBISHI TRUST AND BANKING
CORPORATION
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
CITIBANK, N.A.
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 11
15
FIRST UNION NATIONAL BANK
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
OCTAGON CREDIT INVESTORS LOAN PORTFOLIO
(a unit of The Chase Manhattan Bank)
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
KZH-ING-1 CORPORATION
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
PARIBAS CAPITAL FUNDING LLC
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
PRIME INCOME TRUST
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
CYPRESSTREE INVESTMENT MANAGEMENT, INC.
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
FIRSTRUST
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 12
16
COMMERCIAL LOAN FUNDING TRUST I
By: ▇▇▇▇▇▇ Commercial Paper, Inc., not in
its individual capacity but solely as
administrative agent
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
COMMERZBANK AG, NEW YORK BRANCH
By:
---------------------------------
Name:
---------------------------
Its:
----------------------------
FIFTH AMENDMENT TO CHANCELLOR LOAN AGREEMENT
Signature Page 13