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EXHIBIT 4.36
THIRD AMENDMENT
TO SECOND AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO SECOND AMENDED AND RESTATED LOAN
AGREEMENT (this "Amendment") made as of the 28th day of October, 1997, 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 amended, the "Loan Agreement"); and
WHEREAS, Chancellor Media Corporation, a Delaware corporation
(formerly known as Evergreen Media Corporation) (the "Parent Company") and
Xxxxxx Acquisition Corporation, a Delaware corporation ("Xxxxxx"), have made a
tender offer (the "Tender Offer"), disclosed in that certain Tender Offer
Statement on Schedule 14D-1, dated July 18, 1997, to acquire any and all
outstanding shares of common stock of Xxxx Media Group, Inc., a Delaware
corporation ("KMG"), pursuant to the terms of that certain Merger Agreement,
dated as of July 14, 1997, among the Parent Company, Chancellor Broadcasting
Company, Xxxxxx and KMG (the "Merger Agreement"); and
WHEREAS, as of the date hereof, Chancellor Mezzanine Holdings
Corporation, a Delaware corporation (formerly known as Evergreen Mezzanine
Holdings Corporation) ("CMHC"), a wholly-owned direct Subsidiary of the Parent
Company, owns all of the issued and outstanding common stock of the Borrower
and all of the issued and outstanding Capital Stock of Xxxxxx; and
WHEREAS, in connection with the Tender Offer, Xxxxxx intends
to purchase at least ninety percent (90%) of the issued and outstanding Capital
Stock of KMG for an aggregate cash purchase price of approximately
$160,000,000, which amount the Borrower desires to make available to Xxxxxx;
and
WHEREAS, subject to the satisfactory completion of the Tender
Offer and the satisfaction of the other conditions precedent of the Merger
Agreement, Xxxxxx will merge with and into KMG in a Delaware "short-form"
merger, with KMG being the surviving corporation (the "Merger"); and
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WHEREAS, as of the effective date of the Merger, CMHC will own
all of the issued and outstanding Capital Stock of KMG, and KMG will own all of
the issued and outstanding Capital Stock of Xxxx Media Services, Inc., a
Delaware corporation ("KMSI"); and
WHEREAS, following consummation of the Merger, KMSI will merge
with and into KMG, with KMG being the surviving corporation (the "KMSI
Merger"); and
WHEREAS, as of the effective date of the KMSI Merger, KMG will
own all of the issued and outstanding Capital Stock of Xxxx Media Corporation,
a Delaware corporation ("KMC"); and
WHEREAS, following consummation of the KMSI Merger, CMHC and
KMG will cause the merger of KMC with and into the Borrower, with the Borrower
being the surviving corporation (the "KMC Merger"), in consideration of which
KMC Merger the Borrower will issue to KMG shares of common stock of the
Borrower representing approximately four percent (4%) of the common stock of
the Borrower; and
WHEREAS, as of the effective date of the KMC Merger, the
common stock of the Borrower will be owned approximately ninety-six percent
(96%) by CMHC and approximately four percent (4%) by KMG; and
WHEREAS, KMC has issued those certain 10- 1/2% Senior
Subordinated Notes due 2007 in the original principal amount of $100,000,000
(the "KMC Subordinated Notes"), the obligations under which KMC Subordinated
Notes will be assumed by the Borrower in connection with the KMC Merger; and
WHEREAS, following consummation of the KMC Merger, the
Borrower intends to contribute certain of the assets and liabilities of KMC
(other than the KMC Subordinated Notes) to a newly formed and wholly-owned
Subsidiary of the Borrower, Xxxx Media Corporation, a Delaware corporation,
(such contribution together with the KMG Merger, the KMSI Merger, the KMC
Merger and all other related transactions are hereinafter referred to as the
"Xxxx Acquisition"); and
WHEREAS, the Borrower, CMHC and the Parent Company have asked
and the Lenders have agreed to amend the Loan Agreement as set forth herein in
order to permit consummation of the Xxxx Acquisition and certain other
transactions contemplated in connection therewith, including, without
limitation, the refinancing of KMC's existing indebtedness;
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. Amendments to Article 1.
(a) Article 1 of the Loan Agreement, Definitions, is
hereby modified and amended by deleting the words "involved in the business of
operating broadcast radio stations" in the last two lines of the definition of
"Acquisition" and by substituting the following in lieu thereof:
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"involved in a business as permitted to be conducted by the Borrower
or its Subsidiaries by Section 5.2"
(b) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following after the
definition of "Acquisition":
"'Acquisition Date' shall mean the date on which the Xxxx
Acquisition is consummated."
(c) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the definition of "Borrower" in
its entirety and by substituting the following in lieu thereof:
"'Borrower' shall mean Chancellor Media Corporation of Los
Angeles, a Delaware corporation (formerly known as Evergreen Media
Corporation of Los Angeles)."
(d) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting existing clause (a) of the
definition of "Cash Interest Expense" and by substituting the following in lieu
thereof:
"(a) any cash dividend on account of any Preferred Stock of
the Borrower, or any Restricted Payments made to permit the payment of
interest on Subordinated Indebtedness or cash dividends on the
Preferred Stock of KMG, CMHC or the Parent Company,"
(e) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following after the
definition of "CBC Preferred Stock":
"'CMHC' shall mean Chancellor Mezzanine Holdings Corporation,
a Delaware corporation (formerly known as Evergreen Mezzanine Holdings
Corporation), which, as of the Merger Date, shall own all of the
issued and outstanding common stock of the Borrower, and which, no
later than the Acquisition Date, shall own approximately ninety-six
percent (96%) of the issued and outstanding common stock of the
Borrower and all of the issued and outstanding Capital Stock of KMG.
"'CMHC Guaranty' shall mean that certain Guaranty dated no
later than the Merger Date, issued by CMHC in favor of the Collateral
Agent, in substantially the form attached hereto as Exhibit D."
(f) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the definition of "EMHC" in its
entirety.
(g) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following sentence to the end
of the definition of "Indebtedness":
"Notwithstanding anything contained herein to the contrary, for
Subsidiaries formed or acquired in connection with consummation of the
Xxxx Acquisition, 'Indebtedness'
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shall not include any deferred income or deferred rent to the extent
that such amounts are required to be reflected on a Person's balance
sheet as liabilities for accounting purposes."
(h) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following definitions
immediately after the existing definition of "Joint Purchase Agreement":
"'Xxxx Acquisition' shall mean the KMG Merger and a series of
related transactions by which the KMC Merger is consummated and by
which certain assets and liabilities of KMC (other than the KMC
Subordinated Notes) are contributed to a newly-formed and wholly-owned
Subsidiary of the Borrower.
"'KMC' shall mean Xxxx Media Corporation, a Delaware
corporation, all of the issued and outstanding stock of which,
immediately prior to the effective date of the merger of KMC with and
into the Borrower, shall be owned by KMG.
"'KMC Merger' shall mean the merger of KMC with and into the
Borrower, with the Borrower being the surviving corporation.
"'KMC Subordinated Notes' shall mean those certain 10- 1/2%
Senior Subordinated Notes due 2007 issued by KMC in the original
principal amount of $100,000,000, which, no later than the Acquisition
Date, shall be assumed by the Borrower.
"'KMG' shall mean Xxxx Media Group, Inc., a Delaware
corporation, which no later than the Acquisition Date, shall own
approximately four percent (4%) of the issued and outstanding common
stock of the Borrower.
"'KMG Guaranty' shall mean that certain Guaranty dated no
later than the effective date of the KMG Merger, issued by KMG in
favor of the Collateral Agent, in substantially the form attached
hereto as Exhibit D- 2.
"'KMG Merger' shall mean the merger of Xxxxxx with and into
KMG, with KMG being the surviving corporation, following the
Acquisition by Xxxxxx of at least ninety percent (90%) of the issued
and outstanding common stock of KMG pursuant to the terms and
conditions of that certain Merger Agreement, dated as of July 14,
1997, among the Parent Company, Xxxxxx and KMG and that certain Tender
Offer Statement on Schedule 14D-1, dated July 18, 1997.
"'KMG Pledge Agreement' shall mean that certain Stock Pledge
Agreement dated no later than the effective date of the KMG Merger
between KMG and the Collateral Agent, in substantially the form
attached hereto as Exhibit H-3."
(i) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the each reference to "EMHC" in
the definition of "Merger" and by substituting the words "Evergreen Mezzanine
Holdings Corporation" in lieu thereof.
(j) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following definition after
the definition of "Merger Date":
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"'Xxxxxx' shall mean Xxxxxx Acquisition Corporation, a
Delaware corporation."
(k) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following definition after
the definition of "Multiemployer Plan":
"'NCC' shall mean National Cable Communications, L.P., a
Delaware limited partnership, of which fifty percent (50%) of the
partnership interests therein shall be owned, as of the Acquisition
Date, by a Subsidiary of KMG."
(l) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the words "or EMHC" in clause
(a) of the definition of "Net Cash Proceeds" and by substituting the words "KMG
or CMHC" in lieu thereof.
(m) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the words "or EMHC" and by
adding the words "KMG or CMHC" in the fourth and the fifteenth lines of the
definition of "Net Proceeds."
(n) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the definition of "Parent
Company" in its entirety and by substituting the following in lieu thereof:
"'Parent Company' shall mean Chancellor Media Corporation, a
Delaware corporation (formerly known as Evergreen Media Corporation),
which, as of the Merger Date, owned all of the issued and outstanding
Capital Stock of CMHC."
(o) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting "$5,000,000" and by
substituting "$10,000,000" in the ninth line of the definition of "Permitted
Guaranties".
(p) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the definition of "Preferred
Stock" and substituting the following in lieu thereof:
"'Preferred Stock' shall mean (a) the CBC Preferred Stock upon
the assumption thereof by the Borrower or the Parent Company at any
time on or after the Merger Date, (b) the Parent Company Preferred
Stock and (c) any other preferred stock issued by the Parent Company,
CMHC, KMG or the Borrower consistent with the terms and provisions of
this Agreement."
(q) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting existing clause (i) of
subsection (e) of the definition of "Pro Forma Fixed Charges" and by
substituting the following in lieu thereof:
"(i) to be used to pay cash dividends on any Preferred Stock or
interest on the Indebtedness for Money Borrowed incurred by the Parent
Company, CMHC, KMG or the Borrower,"
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(r) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following after the existing
definition of "Reportable Event":
"'Representation Agreement' shall mean any agreement now in
effect or hereafter entered into between the Borrower or any of its
Subsidiaries and owners and operators of electronic media (including,
without limitation, radio and television stations, cable systems,
interactive television projects, Internet and other on-line services)
pursuant to which the Borrower or such Subsidiary sells advertising on
such media, as such agreements may be amended, supplemented or
otherwise modified from time to time."
(s) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting "the EMHC Guaranty" from the
definition of "Security Documents" and by substituting "the CMHC Guaranty, the
KMG Guaranty" in lieu thereof and by inserting "the KMG Pledge Agreement,"
immediately following "the Stock Pledge Agreement."
(t) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the words "or EMHC" from clause
(b) of the definition of "Subordinated Indebtedness" and by substituting the
words "KMG or CMHC" in lieu thereof.
(u) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following after the last
sentence in the definition of "Subsidiary":
"Notwithstanding anything to the contrary contained in the foregoing,
in the case of the Borrower and its Subsidiaries, the term
'Subsidiary' shall not include NCC."
(v) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the words "and EMHC" from the
eighth line of the definition of "Total Leverage Ratio" and by substituting ",
KMG and CMHC" in lieu thereof.
(w) Article 1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the existing definition of
"Unrestricted Subsidiary" in its entirety and by substituting the following in
lieu thereof:
"'Unrestricted Subsidiary' shall mean any Subsidiary or
Subsidiaries of the Parent Company, other than CMHC, KMG, the Borrower
and any Subsidiary of CMHC, KMG or the Borrower."
2. Amendment to Section 2.3. Section 2.3 of the Loan Agreement
is hereby modified and amended by deleting the words "and EMHC" from the
eighteenth line of subsection (f), Applicable Margin, and by substituting the
words ", CMHC and KMG" in lieu thereof.
3. Amendment to Section 2.7. Section 2.7 of the Loan Agreement
is hereby modified and amended by deleting subsection (b), Repayment from
Issuance of Subordinated Indebtedness by Parent Company, EMHC or Borrower, in
its entirety and by substituting the following in lieu thereof:
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"(b) Repayment from Issuance of Subordinated Indebtedness
by Parent Company, CMHC, KMG or Borrower. Fifty percent (50%) of the
Net Proceeds of any Subordinated Indebtedness (other than Subordinated
Indebtedness issued solely to refinance the CRBC Subordinated
Indebtedness and which does not increase the principal amount thereof)
issued by the Parent Company (to the extent such Subordinated
Indebtedness is guaranteed by any of CMHC, KMG, the Borrower or any of
the Borrower's Subsidiaries), CMHC, KMG or Borrower shall, on the date
of receipt by the Parent Company, CMHC, KMG or Borrower be applied to
the Obligations, and with respect to the Loans, such payment shall be
applied, at the election of Borrower, to the Term Loan or the
Revolving Loans or any combination thereof, and that in the case of
repayment of the Revolving Loans, no permanent reduction of the
Revolving Loan Commitment shall be required."
4. Amendments to Section 4.1.
(a) Section 4.1 of the Loan Agreement, Representations
and Warranties, is hereby modified and amended by deleting the last sentence of
subsection (e) and by substituting the following in lieu thereof:
"The Borrower's Subsidiaries are engaged in the radio broadcasting and
related businesses and, on or at any time after the Acquisition Date,
in the business of representing radio and television stations, cable
stations, interactive Internet service providers, other broadcasters,
publishers and purveyors of publicly accessible media and other
business media and marketing entities in the sale of advertising and
programming."
(b) Section 4.1 of the Loan Agreement, Representations
and Warranties, is hereby further modified and amended by adding the following
after the word "Subsidiaries" in the twelfth line of subsection (u):
"(other than with respect to the Capital Stock of Subsidiaries
organized under the laws of jurisdictions outside of the United
States, in which case, sixty-five percent (65%) of the Capital Stock
of such Subsidiaries has been pledged to the Collateral Agent)"
5. Amendment to Section 5.2. Section 5.2 of the Loan Agreement,
Business; Compliance with Applicable Law, is hereby modified and amended by
deleting clause (a) of the second sentence and by substituting the following in
lieu thereof:
"(a) (i) engage solely in the business of radio broadcasting and
related businesses, (ii) on or at any time after the Acquisition Date,
engage solely in the business of representing radio and television
stations, cable stations, interactive Internet service providers,
other broadcasters, publishers and purveyors of publicly accessible
media and other business media and marketing entities in the sale of
advertising and programming or (iii) engage solely in holding
securities of radio broadcasting businesses and any Non-Core
Businesses, as permitted by Section 7.6(g) and (h),"
6. Amendments to Section 5.12.
(a) Section 5.12 of the Loan Agreement, Covenants
Regarding Formation of Subsidiaries and Acquisitions, is hereby modified and
amended by inserting the words "or a
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Subsidiary of the Borrower organized under the laws of a jurisdiction outside
of the United States" after the words "Divestiture Trust" in clause (a)
thereof.
(b) Section 5.12 of the Loan Agreement, Covenants
Regarding Formation of Subsidiaries and Acquisitions, is hereby further
modified and amended by inserting the parenthetical "(unless such Subsidiary or
Person is organized under the laws of a jurisdiction outside of the United
States, in which case, sixty-five percent (65%) of the equity interests in such
Subsidiary or Person shall be pledged in accordance herewith)" after the words
"Subsidiary or Person" in clause (b).
7. Amendments to Section 7.1.
(a) Section 7.1 of the Loan Agreement, Indebtedness of
the Borrower and its Subsidiaries, is hereby modified and amended by deleting
the existing clause (b) from subsection (vii) and by substituting the following
in lieu thereof:
"(b) as of or at any time after consummation of the KMC Merger, 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
$600,000,000, and as of or at any time after consummation of the KMC
Merger, not exceeding $500,000,000, in each case at any one time
outstanding;"
(b) Section 7.1 of the Loan Agreement, Indebtedness of
the Borrower and its Subsidiaries, is hereby further modified and amended by
deleting "$5,000,000" from clause (ix) and by substituting "$10,000,000"
therefor.
(c) Section 7.1 of the Loan Agreement, Indebtedness of
the Borrower and its Subsidiaries, is hereby further modified and amended by
inserting the following immediately prior to the period in subsection (ix)
thereof:
";
"(x) on or at any time after the Acquisition Date,
liabilities in respect of Representation Agreements incurred by the
Borrower or its Subsidiaries in the ordinary course of business; and
"(xi) Taxes payable"
8. Amendments to Section 7.4.
(a) Section 7.4 of the Loan Agreement, Liquidation,
Change in Ownership, Disposition of Assets, Change in Business of License Subs,
is hereby modified and amended by deleting the words within the parentheses in
subsection (a)(ii) and by substituting the following therefor: "(except a
merger pursuant to the Merger Agreement, or the KMC Merger, or any merger or
liquidation among the Borrower and one or more of its Subsidiaries, provided
that the Borrower is the surviving corporation, or between or among two or more
of the Subsidiaries of the Borrower)".
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(b) Section 7.4 of the Loan Agreement, Liquidation,
Change in Ownership, Disposition of Assets, Change in Business of License Subs,
is hereby further modified and amended by adding the following immediately
after the word "assets" in line three of subsection (b):
"(other than termination, sale or other disposition of Representation
Agreements in the ordinary course of business)"
(c) Section 7.4 of the Loan Agreement, Liquidation,
Change in Ownership, Disposition of Assets, Change in Business of License Subs,
is hereby further modified and amended by deleting the existing subsection (d)
and by substituting the following therefor:
"(d) as to the Borrower, issue any additional shares of
common stock unless such shares are issued to CMHC, or to KMG in
connection with the Xxxx Acquisition, and simultaneously pledged to
the Collateral Agent, as appropriate, by CMHC pursuant the Stock
Pledge Agreement or by KMG pursuant to the KMG Pledge Agreement."
9. Amendment to Section 7.5. Section 7.5 of the Loan Agreement,
Negative Pledges, is hereby modified and amended by deleting the words within
the parentheses and by substituting the following therefor:
"(excluding this Agreement, any Loan Document or any Capitalized Lease
Obligations with respect to property leased thereunder or purchase
money security interests permitted by clause (i) of the definition of
'Permitted Liens' or the organizational documents and partnership
agreement of NCC)"
10. Amendments to Section 7.6.
(a) Section 7.6 of the Loan Agreement, Investments,
Acquisitions and Asset Swaps, is hereby modified and amended by deleting the
existing subsection (b) and substituting the following in lieu thereof:
"(b) The Borrower and its Subsidiaries may make
intercompany loans to, and other Investments in, the Borrower or any
of its Subsidiaries which are parties to the Subsidiary Guaranty;"
(b) Section 7.6 of the Loan Agreement, Investments,
Acquisitions and Asset Swaps, is hereby further modified and amended by adding
a new clause (v) in subsection (c) which shall read as follows:
"(v) The Borrower may consummate the Xxxx Acquisition."
(c) Section 7.6 of the Loan Agreement, Investments,
Acquisitions and Asset Swaps, is hereby further modified and amended by adding
the following phrase immediately after the parenthetical in the fourth line of
subsection (h):
", together with the aggregate purchase price of any Acquisitions
permitted under Section 7.6(i),"
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(d) Section 7.6 of the Loan Agreement, Investments,
Acquisitions and Asset Swaps, is hereby further modified and amended by the
addition of a new subsection (i) which shall read as follows:
"(i) the Borrower and any of its Subsidiaries may make
Acquisitions of any businesses engaged in Non-Core Businesses,
provided that the sum of (x) the aggregate purchase price of all such
Acquisitions and (y) the aggregate market value of all securities
permitted to be purchased under Section 7.6(h) (measured as of the
date of purchase), shall not exceed $150,000,000 at any one time
outstanding or such greater amount as may be approved in writing by
the Required Lenders;"
(e) Section 7.6 of the Loan Agreement, Investments,
Acquisitions and Asset Swaps, is hereby further modified and amended by the
addition of a new subsection (j) which shall read as follows:
"(j) the Borrower and any of its Subsidiaries may make
Investments in Subsidiaries of the Borrower which are not parties to
the Subsidiary Guaranty and in NCC and other Investments acquired as
part of the Xxxx Acquisition, provided that the aggregate amount of
all such Investments, when added to the aggregate amount of Restricted
Payments and Restricted Purchases permitted to be made under Section
7.7(b), shall not exceed the total amount of Restricted Payments and
Restricted Purchases permitted to be made under Section 7.7(b)."
11. Amendments to Section 7.7.
(a) Section 7.7 of the Loan Agreement, Restricted
Payments and Purchases, is hereby modified and amended by deleting the word
"EMHC" in the second line of subsection (a) and by substituting the words "KMG
or CMHC" in lieu thereof.
(b) Section 7.7 of the Loan Agreement, Restricted
Payments and Purchases, is hereby modified and amended by deleting the existing
subsection (b) and by substituting the following in lieu thereof:
"(b) the Borrower and the Borrower's Subsidiaries may make Restricted
Payments and Restricted Purchases for or in connection with the
repayment, prepayment, repurchase or redemption of any of the
Borrower's, CMHC's, KMG's or the Parent Company's equity or debt
securities (including warrants for the purchase of such equity or debt
securities), plus Investments under Section 7.6(j) hereof, plus other
Restricted Payments and Restricted Purchases during the term of this
Agreement (in addition to amounts paid pursuant to Section 7.7(a)
above), in an aggregate amount not to exceed at any time during the
term of this Agreement the sum of (i) to the extent that such sums
have been contributed at any time from and after the Agreement Date as
equity to the Borrower, up to $100,000,000 in proceeds of an offering
of common or preferred stock of the Parent Company or any of its
Subsidiaries, plus (ii) up to an additional $170,000,000, provided
that such amount is used to repurchase, redeem, repay or refinance any
preferred stock or bridge indebtedness issued by CBC, CRBC, the
Borrower, CMHC or the Parent Company subsequent to the Agreement Date
but prior to the Merger Date, plus (iii) for Restricted Payments or
Restricted Purchases made in connection with consummation of the Xxxx
Acquisition in an amount not to exceed $160,000,000, plus (iv) the
Broadcast Cash Flow for the
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twelve-month period immediately preceding the proposed payment or
measurement date, provided, however, that any Restricted Payment or
Restricted Purchase made under and in compliance with this Section
7.7(b) in any twelve- month period shall not cause a Default solely as
a result of a decrease in such Broadcast Cash Flow during any
subsequent twelve-month period;"
(c) Section 7.7 of the Loan Agreement, Restricted
Payments and Restricted Purchases, is hereby further modified and amended by
providing that the payments permitted to be made under subsections (c), (d) and
(e) may be made directly to the Parent Company, or may be made to either CMHC
or KMG for such Person's own use for such purpose or for distribution by such
Person to the Parent Company.
12. Amendment to Section 7.8. Section 7.8 of the Loan Agreement,
Leverage Ratio, is hereby modified and amended by deleting the word "EMHC" in
the last sentence thereof and by substituting "CMHC, KMG" in lieu thereof, and
by adding a new clause (d) to the parenthetical, which shall read as follows:
"(d) or assumed in connection with the consummation of the Xxxx
Acquisition in an amount not to exceed $100,000,000"
13. Amendments to Section 8.1.
(a) Section 8.1(e) of the Loan Agreement, Events of
Default, is hereby modified and amended by deleting the existing subsection
(ii) thereof and by substituting the following therefor:
"(ii) the Parent Company shall cease to own all of the issued and
outstanding common stock of CMHC; (iii) CMHC shall cease to own all of
the issued and outstanding common stock of KMG; (iv) CMHC and KMG
together shall cease to own all of the issued and outstanding common
stock of the Borrower; or (v) CMHC shall cease to own at least ninety
percent (90%) of the issued and outstanding common stock of the
Borrower;"
(b) Sections 8.1(f), (g), (h), (j) and (m) of the Loan
Agreement shall be amended to change the reference therein to "EMHC" to "CMHC"
and to include KMG with the same effect as the references therein to CMHC and
the Parent Company.
(c) Section 8.1(o) of the Loan Agreement, Events of
Default, is hereby modified and amended by deleting the section in its entirety
and by substituting the following therefor:
"(o) CMHC shall breach the CMHC Guaranty or the Stock
Pledge Agreement, KMG shall breach the KMG Guaranty or the KMG Pledge
Agreement or the Parent Company shall breach the Parent Company Pledge
Agreement."
14. Amendment to Exhibit D. Exhibit D to the Loan Agreement, Form
of EMHC Guaranty, is hereby modified and amended (A) by deleting all references
to "EMHC" therein and by substituting "CMHC" in lieu thereof, (B) to the extent
necessary to reflect that, as of the effective date of the KMG Merger, CMHC
shall own approximately ninety-six percent (96%) of
- 11 -
12
the issued and outstanding common stock of the Borrower and (C) by the addition
of Exhibit D-2, Form of KMG Guaranty, attached hereto as Exhibit D-2 to the
Loan Agreement.
15. Amendment to Exhibit H. Exhibit H-1 to the Loan Agreement,
Form of Stock Pledge, is hereby modified and amended by deleting the existing
Exhibit H-1 in its entirety and substituting Exhibit H-1 attached hereto in
lieu thereof and by the addition of Exhibit H-3, Form of KMG Pledge Agreement,
attached hereto as Exhibit H-3 to the Loan Agreement.
16. 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.
17. 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.
18. Conditions Subsequent. As a condition subsequent to the
effectiveness of this Amendment and not later than the date on which the KMG
Merger shall be consummated, the Borrower shall perform or shall cause to be
performed the following (the failure by the Borrower to so perform or cause to
be performed constituting an Event of Default):
(a) satisfactory completion of the consent solicitation
with respect to holders of the KMC Subordinated Notes;
(b) KMG shall execute and deliver to the Collateral Agent
the KMG Guaranty;
(c) CMHC shall execute and deliver to the Collateral
Agent the Stock Pledge Agreement, together with all of the shares of stock of
the Borrower and of KMG pledged thereunder and appropriate stock powers
executed in blank;
(d) KMG shall execute and deliver to the Collateral Agent
the KMG Pledge Agreement, together with all of the shares of stock of the
Borrower pledged thereunder and appropriate stock powers executed in blank; and
(e) the Borrower and its Subsidiaries, as appropriate,
shall execute and deliver to the Collateral Agent any other certificates,
documents, instruments or other agreements requested by the Collateral Agent
with respect to KMG or any Subsidiary of the Borrower formed or acquired in
connection with the Xxxx Acquisition, including, without limitation, an
- 12 -
13
amendment to the Borrower Pledge Agreement, supplements to the Subsidiary
Guaranty, supplements to the Subsidiary Pledge Agreement and Subsidiary Loan
Certificates.
19. 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.
20. 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.
21. 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.]
- 13 -
14
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]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 1
15
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
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By:
---------------------------
Name:
--------------------
Its: Authorized Signatory
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 2
16
XXX XXXXXX 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]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 3
17
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]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 4
18
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]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 5
19
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
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 6
20
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
---------------------------
Name:
---------------------
Its: Vice President
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]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 7
00
XXXXX XXXX XX XXXXXXXXXXX, XXX XXXX
BRANCH
By:
---------------------------
Name:
---------------------
Its:
---------------------
By:
---------------------------
Name:
---------------------
Its:
---------------------
XXXXX FARGO BANK (TEXAS), NATIONAL
ASSOCIATION
By:
---------------------------
Name:
---------------------
Its: Banking Officer
BANK OF IRELAND
By:
---------------------------
Name:
---------------------
Its: Account Manager
CAISSE NATIONALE DE CREDIT AGRICOLE
By:
---------------------------
Name:
---------------------
Its: Senior Vice President/
Branch Manager
CRESTAR BANK
By:
---------------------------
Name:
---------------------
Its: Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 8
22
XXXXXX 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
XXXXX 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]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 9
23
THE YASUDA TRUST AND BANKING CO.,
LTD.
By:
---------------------------
Name:
---------------------
Its: Senior Vice President
NATIONAL BANK OF CANADA
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:
----------------------
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 10
24
BANQUE FRANCAISE DU COMMERCE
EXTERIEUR
By:
---------------------------
Name:
---------------------
Its:
----------------------
XXXXXX FINANCIAL, INC.
By:
---------------------------
Name:
---------------------
Its:
----------------------
XXXXXXX SACHS CREDIT PARTNERS, L.P.
By:
---------------------------
Name:
---------------------
Its:
----------------------
BEAR XXXXXXX INVESTMENT PRODUCTS,
INC.
By:
---------------------------
Name:
---------------------
Its:
----------------------
GULF INTERNATIONAL BANK B.S.C.
By:
---------------------------
Name:
---------------------
Its:
----------------------
XXXXXX COMMERCIAL PAPER, INC.
By:
---------------------------
Name:
---------------------
Its:
----------------------
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 11
25
BZW
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:
----------------------
FIRST UNION NATIONAL BANK
By:
---------------------------
Name:
---------------------
Its:
----------------------
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 12
26
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:
----------------------
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 13
27
COMMERCIAL LOAN FUNDING TRUST I
By:
---------------------------
Name:
---------------------
Its:
----------------------
GENERAL ELECTRIC CAPITAL CORPORATION
By:
---------------------------
Name:
---------------------
Its:
----------------------
COMMERZBANK AG, NEW YORK BRANCH
By:
---------------------------
Name:
---------------------
Its:
----------------------
THIRD AMENDMENT TO EVERGREEN LOAN AGREEMENT
Signature Page 14