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Exhibit 10.73
EXECUTION COPY
FOURTH AMENDMENT
FOURTH AMENDMENT, dated as of December 15, 1998 (this "Fourth
Amendment"), to the Fifth Amended and Restated Credit Agreement, dated as of
August 15, 1997 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among OUTDOOR SYSTEMS, INC. (the "Company"),
MEDIACOM INC. (the "Canadian Borrower"; together with the Company, the
"Borrowers"), the several banks and other financial institutions from time to
time parties thereto (the "Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, as
Canadian Administrative Agent (in such capacity, the "Canadian Administrative
Agent"), and CANADIAN IMPERIAL BANK OF COMMERCE, NEW YORK AGENCY, as US
Administrative Agent (in such capacity, the "US Administrative Agent"; together
with the Canadian Administrative Agent, the "Agents").
W I T N E S S E T H:
WHEREAS, The Borrowers have requested that the Lenders agree to
amend certain provisions of the Credit Agreement, and the undersigned Lenders
are agreeable to such request upon the terms and subject to the conditions set
forth;
NOW, THEREFORE, in consideration of the premises and mutual
agreements contained herein, and for other valuable consideration the receipt of
which is hereby acknowledged, the Borrowers, the Lenders and the Agents hereby
agree as follows:
1 Definitions. All terms defined in the Credit Agreement shall have
such defined meanings when used herein unless otherwise defined herein.
2 Amendment of Subsection 1.1. Subsection 1.1 of the Credit
Agreement is hereby amended by (i) inserting, in proper alphabetical order, the
new definitions of "Additional Subordinated Indenture" and "Additional
Subordinated Indebtedness" set forth below and (ii) replacing the definitions of
"Senior Subordinated Indentures" and "Subordinated Indebtedness" with the new
definitions thereof set forth below:
"Additional Subordinated Indebtedness": subordinated Indebtedness
(other than that evidenced by the Senior Subordinated 1996 Notes or the
Senior Subordinated 1997 Notes and Subordinated Indebtedness replacing or
refinancing such Indebtedness) that has material terms no less favorable
to the Company and the Lenders (and, in any case, has no provision for any
interest rate thereon that increases (other than any default rates
provided therein) after the date of issuance thereof) than the terms of
the Senior
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Subordinated 1997 Indenture (other than the stated rate of interest,
subject to the immediately foregoing parenthetical).
"Additional Subordinated Indenture": any indenture (other than
the Senior Subordinated 1996 Indenture and the Senior Subordinated 1997
Indenture) pursuant to which Subordinated Indebtedness is issued.
"Senior Subordinated Indentures": the collective references to
the Senior Subordinated 1996 Indenture, the Senior Subordinated 1997
Indenture and all Additional Subordinated Indentures.
"Subordinated Indebtedness": the Indebtedness of the Company
evidenced by the Senior Subordinated 1996 Notes and the Senior
Subordinated 1997 Notes, or constituting Additional Subordinated
Indebtedness, and any subordinated Indebtedness refinancing or replacing
any of the foregoing that has material terms no less favorable to the
Company and the Lenders (and, in any case, has no provision for any
interest rate thereon that increases (other than any default rates
provided therein) after the date of issuance thereof) than, in each case,
the Indebtedness being so refinanced or replaced.
3 Amendment of Subsection 4.3. Subsection 4.3 of the Credit
Agreement is hereby amended by inserting, at the end thereof, the following new
clause (i):
"(i) Upon the issuance of any Additional Subordinated Indebtedness,
the Net Cash Proceeds thereof shall immediately be applied to prepayments
of Loans as follows: (i) the first $75,000,000 of such Net Cash Proceeds
received after December 1, 1998, shall be applied to prepay Revolving
Credit Loans in accordance with the provisions of subsection 4.2 in the
same manner as if such mandatory prepayments under this clause (i)(i) were
prepayments of Revolving Credit Loans contemplated under such subsection
4.2, and (ii) to the extent that such Net Cash Proceeds received after
December 1, 1998, exceed $75,000,000, 50% of the amount of such excess Net
Cash Proceeds shall, immediately upon receipt thereof, be applied to
prepay Revolving Credit Loans in accordance with the provisions of
subsection 4.2 in the same manner as if such mandatory prepayments under
this clause (i)(ii) were prepayments of Revolving Credit Loans
contemplated under such subsection 4.2, and the remaining 50% of the
amount of such excess Net Cash Proceeds shall, immediately upon receipt
thereof, be applied to prepay Term Loans in accordance with the provisions
of subsection 4.2 in the same manner as if such mandatory prepayments
under this clause (i)(ii) were prepayments of Term Loans contemplated
under such subsection 4.2."
4 Amendment of Subsection 8.2. Subsection 8.2 of the Credit
Agreement is hereby amended by inserting, at the end of clause (f) thereof, the
following:
", and, in addition to the foregoing, Additional Subordinated
Indebtedness, provided, in the case of any such Additional Subordinated
Indebtedness, that, reasonably prior to the issuance thereof, the Company
shall have provided to each Lender pro forma financial information in
reasonable detail demonstrating compliance with the applicable
requirements of this Agreement for the most recently ended period of four
consecutive fiscal quarters for which financial statements have been
delivered pursuant to subsection 7.1, on a pro forma basis assuming that
that such issuance had occurred on the first day of
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such period, and provided, further, that, immediately upon the issuance of
any Additional Subordinated Indebtedness, the Net Cash Proceeds thereof
are applied to prepay Loans as set forth in subsection 4.3(i)."
5 Amendment of Subsection 8.10. Subsection 8.10 of the Credit
Agreement is hereby amended by inserting in clause (c) thereof, after the words
"the Senior Subordinated 1996 Indenture or the Senior Subordinated 1997
Indenture", the words ", or designate or permit to be designated any
indebtedness to have substantively equivalent rights or functions under or in
relation to any Additional Subordinated Indebtedness".
6 Conditions to Effectiveness. This Fourth Amendment shall become
effective on and as of the date (the "Fourth Amendment Effective Date") the US
Administrative Agent shall have received counterparts of this Fourth Amendment
duly executed and delivered by a duly authorized officer of each of the
Borrowers and the Majority Lenders.
7 Representations and Warranties. Each of the representations and
warranties made by any Loan Party pursuant to the Credit Agreement, this Fourth
Amendment or any other Loan Document (or in any amendment, modification or
supplement hereto or thereto) to which it is a party, and each of the
representations and warranties contained in any certificate furnished at any
time by or on behalf of any such Loan Party pursuant to this Fourth Amendment or
any other Loan Document shall, except to the extent that they relate to a
particular date, be true and correct in all material respects on and as of the
Fourth Amendment Effective Date as if made on and as of such date.
8 No Default. No Default or Event of Default shall have occurred and
be continuing on and as of the Fourth Amendment Effective Date.
9 Limited Amendment. Except as expressly amended herein, the Credit
Agreement shall continue to be, and shall remain, in full force and effect. This
Fourth Amendment shall not be deemed to be a waiver of, or consent to, or a
modification or amendment of, any other term or condition of the Credit
Agreement (including, without limitation, the financial covenants set forth in
subsection 8.1) or any other Loan Document or to prejudice any other right or
rights which the Lenders may now have or may have in the future under or in
connection with the Credit Agreement or any of the instruments or agreements
referred to therein, as the same may be amended from time to time.
10 Counterparts. This Fourth Amendment may be executed by one or
more of the parties hereto in any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
11 GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
OUTDOOR SYSTEMS, INC.
By: /s/
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Title:
MEDIACOM INC.
By: /s/
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE, as
Canadian Administrative Agent and as a
Lender
By: /s/
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Title:
CIBC INC., as a Lender
By: /s/
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Title:
CANADIAN IMPERIAL BANK OF COMMERCE, NEW
YORK AGENCY, as US Administrative Agent
and as a Lender
By: /s/
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Title:
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By: /s/
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Title:
5
BANK OF AMERICA CANADA
By: /s/
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Title:
BANK OF HAWAII
By: /s/
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Title:
THE BANK OF MONTREAL
By: /s/
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Title:
THE BANK OF MONTREAL, CHICAGO BRANCH
By: /s/
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Title:
THE BANK OF NEW YORK
By: /s/
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Title:
THE BANK OF NOVA SCOTIA
By: /s/
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Title:
THE BANK OF NOVA SCOTIA - CANADA
By: /s/
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Title:
6
BANKBOSTON, N.A.
By: /s/
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Title:
BANQUE NATIONALE DE PARIS
By: /s/
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Title:
BANK ONE, ARIZONA
By: /s/
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Title:
PARIBAS
By: /s/
------------------------------------
Title:
By: /s/
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Title:
BAYERISCHE HYPO-UND VEREINSBANK A.G.,
NEW YORK BRANCH
By: /s/
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Title:
By: /s/
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Title:
BEAR STEARNS INVESTMENT PRODUCTS, INC.
By: /s/
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Title:
7
CAPTIVA FINANCE LTD.
By: /s/
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Title:
CARILLON HOLDING, LTD.
By: /s/
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Title:
CITY NATIONAL BANK
By: /s/
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Title:
COMERICA WEST, INCORPORATED
By: /s/
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Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By: /s/
------------------------------------
Title:
By: /s/
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Title:
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
BY: TCW ASSET MANAGEMENT COMPANY AS
ATTORNEY-IN-FACT
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
8
CREDIT LYONNAIS, LOS ANGELES BRANCH
By: /s/
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Title:
CREDIT LYONNAIS CANADA
By: /s/
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Title:
By: /s/
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Title:
CREDITANSTALT CORPORATE FINANCE, INC.
By: /s/
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Title:
By: /s/
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Title:
CRESCENT/MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT, ITS INVESTMENT
MANAGER
By: /s/
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Title:
DEEPROCK & CO.
BY: EATON VANCE MANAGEMENT AS INVESTMENT
ADVISORS
By: /s/
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Title:
DLJ CAPITAL FUNDING, INC.
By: /s/
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Title:
9
DRESDNER BANK AG NEW YORK & GRAND CAYMAN
BRANCHES
By: /s/
------------------------------------
Title:
By: /s/
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Title:
DRESDNER BANK CANADA
By: /s/
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Title:
By: /s/
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Title:
FIRST HAWAIIAN BANK
By: /s/
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Title:
FIRST NATIONAL BANK OF MARYLAND
By: /s/
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Title:
FIRST UNION NATIONAL BANK (f/k/a FIRST UNION
BANK OF NORTH CAROLINA)
By: /s/
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Title:
FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO CORESTATES BANK, N.A.
By: /s/
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Title:
10
FLEET NATIONAL BANK
By: /s/
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Title:
THE FUJI BANK LIMITED, LOS ANGELES AGENCY
By: /s/
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Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/
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Title:
GENERAL RE- NEW ENGLAND MANAGEMENT INC.
By: /s/
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Title:
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By: /s/
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Title:
INDOSUEZ CAPITAL FUNDING II, LIMITED
BY: INDOSUEZ CAPITAL, AS PORTFOLIO ADVISOR
By: /s/
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Title:
11
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS
ANGELES AGENCY
By: /s/
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Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED, NEW
YORK AGENCY
By: /s/
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Title:
KZH CRESCENT LLC
By: /s/
------------------------------------
Title:
KZH SOLEIL LLC
By: /s/
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Title:
THE LONG TERM CREDIT BANK OF JAPAN, LTD.
By: /s/
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Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/
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Title:
MELLON BANK, N.A.
By: /s/
------------------------------------
Title:
12
MELLON BANK CANADA
By: /s/
------------------------------------
Title:
MERITA BANK PLC - NEW YORK BRANCH
By: /s/
------------------------------------
Title:
By: /s/
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Title:
MERRILL LYNCH PRIME RATE PORTFOLIO
BY: MERRILL LYNCH ASSET MANAGEMENT, L.P., AS
INVESTMENT ADVISOR
By: /s/
------------------------------------
Title:
MERRILL LYNCH SENIOR FLOATING RATE FUND,
INC.
By: /s/
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Title:
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/
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Title:
MICHIGAN NATIONAL BANK
By: /s/
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Title:
13
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By: /s/
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Title:
MOUNTAIN CLO TRUST
By: /s/
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Title:
NATIONAL CITY BANK
By: /s/
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Title:
NORWEST BANK ARIZONA, N.A.
By: /s/
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Title:
PARIBAS BANK OF CANADA
By: /s/
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Title:
PARIBAS CAPITAL FUNDING L.L.C.
By: /s/
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Title:
PROVIDENT BANK OF MARYLAND
By: /s/
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Title:
14
ROYALTON COMPANY
By: /s/
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Title:
THE SANWA BANK, LIMITED
By: /s/
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Title:
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH AS
INVESTMENT ADVISOR
By: /s/
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Title:
SOUTHERN PACIFIC BANK
By: /s/
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Title:
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
By: /s/
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Title:
THE SUMITOMO BANK OF CANADA
By: /s/
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Title:
SUMITOMO TRUST & BANKING CO., LTD.
By: /s/
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Title:
15
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/
------------------------------------
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/
------------------------------------
Title:
THE TRAVELERS INSURANCE COMPANY
By: /s/
------------------------------------
Title:
UNION BANK OF CALIFORNIA NA
By: /s/
------------------------------------
Title:
VAN KAMPEN AMERICAN CAPITAL PRIME RATE
INCOME TRUST
By: /s/
------------------------------------
Title:
VAN KAMPEN CLOI, LIMITED
BY: VAN KAMPEN AMERICAN CAPITAL MANAGEMENT,
INC., AS COLLATERAL MANAGER
By: /s/
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Title:
16
VAN KAMPEN CLOII, LIMITED
BY: VAN KAMPEN AMERICAN CAPITAL MANAGEMENT,
INC., AS COLLATERAL MANAGER
By: /s/
------------------------------------
Title:
VAN KAMPEN AMERICAN CAPITAL SENIOR INCOME
TRUST
By: /s/
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Title:
WEBSTER BANK
By: /s/
------------------------------------
Title:
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The undersigned hereby consent and agree to the foregoing Fourth Amendment.
NEW YORK SUBWAYS ADVERTISING CO., INC.
By: /s/
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Title:
OUTDOOR SYSTEMS, INC.
By: /s/
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Title:
OUTDOOR SYSTEMS (NEW YORK), INC.
By: /s/
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Title:
OS BUS, INC.
By: /s/
------------------------------------
Title:
NATIONAL ADVERTISING COMPANY
By: /s/
------------------------------------
Title:
PACIFIC CONNECTION, INC.
By: /s/
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Title:
SALM ENTERPRISES, INC.
By: /s/
------------------------------------
Title:
18
ATLANTIC PROSPECT, INC.
By: /s/
------------------------------------
Title:
OS FLORIDA, INC.
By: /s/
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Title:
PREMIER SPORTS MARKETING, INC.
By: /s/
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Title: