FIFTH AMENDMENT FIFTH AMENDMENT, dated as of February 3, 1999 (this "Fifth 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...
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Exhibit 10.74
EXECUTION COPY
FIFTH AMENDMENT
FIFTH AMENDMENT, dated as of February 3, 1999 (this "Fifth
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 4.3(b). Subsection 4.3(b) of the Credit
Agreement is hereby amended to read in its entirety as follows:
"(b) If, subsequent to the Closing Date, the Company shall issue any
Capital Stock, then the Company may apply the Net Cash Proceeds
thereof toward any general corporate purpose in compliance with the
applicable provisions of this agreement (including but not limited
to, working capital purposes in the ordinary course of business and
Permitted Acquisitions); provided that (A) at the time of any such
issuance, no Default or Event of Default has occurred and is
continuing and (B) in the case of any such issuance occurring at a
time when (i) no Default or Event of Default has occurred and is
continuing and (ii) the Total Leverage Ratio as at the end of the
two consecutive fiscal quarters of the Company for which financial
statements have been delivered pursuant to subsection 7.1 most
recently ended prior to such time is less than 5.00:1.00, the
Company may apply any or all
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of the Net Cash Proceeds thereof to repurchase or redeem
Subordinated Indebtedness permitted to be so repurchased or redeemed
under the Senior Subordinated Indentures at a premium of not greater
than 9% so long as the Borrowers simultaneously apply toward the
prepayment of the Loans and the permanent reduction of the Revolving
Credit Commitments in accordance with subsection 4.3(f) an amount
equal to the excess, if any, of (x) an amount equal to the portion
of such Net Cash Proceeds so applied to repurchase Subordinated
Indebtedness over (y) the aggregate amount of voluntary reductions
in the Revolving Credit Commitments made pursuant to subsections
2.8(a) and 4.2(a) and voluntary prepayments of the Term Loans during
the period from the Closing Date to and including the date of
receipt of such Net Cash Proceeds (other than any such voluntary
prepayments or reductions which, pursuant to a calculation made
pursuant to this clause (b) in connection with a previous issuance
of Capital Stock by the Company, shall have theretofore resulted in
a reduction in or elimination of the amount of any mandatory
prepayment of the Loans or permanent reduction of the Revolving
Credit Commitments pursuant to this subsection 4.3(b))."
3 Conditions to Effectiveness. This Fifth Amendment shall become
effective on and as of the date (the "Fifth Amendment Effective Date") the US
Administrative Agent shall have received counterparts of this Fifth Amendment
duly executed and delivered by a duly authorized officer of each of the
Borrowers and the Majority Lenders.
4 Representations and Warranties. Each of the representations and
warranties made by any Loan Party pursuant to the Credit Agreement, this Fifth
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 Fifth 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
Fifth Amendment Effective Date as if made on and as of such date.
5 No Default. No Default or Event of Default shall have occurred and
be continuing on and as of the Fifth Amendment Effective Date.
6 Limited Amendment. Except as expressly amended herein, the Credit
Agreement shall continue to be, and shall remain, in full force and effect. This
Fifth 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.
7 Counterparts. This Fifth 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.
8 GOVERNING LAW. THIS FIFTH 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 Fifth
Amendment to be executed and delivered by their respective duly authorized
officers as of the date first above written.
OUTDOOR SYSTEMS, INC.
By: /s/
------------------------------------
Title:
MEDIACOM INC.
By: /s/
------------------------------------
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, as
Canadian Administrative Agent and as a
Lender
By: /s/
------------------------------------
Title:
CIBC INC., as a Lender
By: /s/
------------------------------------
Title:
CANADIAN IMPERIAL BANK OF COMMERCE, NEW
YORK AGENCY, as US Administrative Agent
and as a Lender
By: /s/
------------------------------------
Title:
BANK OF AMERICA NATIONAL TRUST & SAVINGS
ASSOCIATION
By: /s/
------------------------------------
Title:
0
XXXX XX XXXXXXX XXXXXX
By: /s/
------------------------------------
Title:
BANK OF HAWAII
By: /s/
------------------------------------
Title:
BANK OF MONTREAL
By: /s/
------------------------------------
Title:
BANK OF MONTREAL, CHICAGO BRANCH
By: /s/
------------------------------------
Title:
THE BANK OF NEW YORK
By: /s/
------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By: /s/
------------------------------------
Title:
XXX XXXX XX XXXX XXXXXX - XXXXXX
By: /s/
------------------------------------
Title:
5
BANKBOSTON, N.A.
By: /s/
------------------------------------
Title:
BANQUE NATIONALE DE PARIS
By: /s/
------------------------------------
Title:
BANK ONE, ARIZONA
By: /s/
------------------------------------
Title:
PARIBAS
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
BAYERISCHE HYPO-UND VEREINSBANK A.G., NEW
YORK BRANCH
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
BEAR XXXXXXX INVESTMENT PRODUCTS, INC.
By: /s/
------------------------------------
Title:
6
CAPTIVA FINANCE LTD.
By: /s/
------------------------------------
Title:
CARILLON HOLDING, LTD.
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
COMERICA WEST, INCORPORATED
By: /s/
------------------------------------
Title:
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
CONTINENTAL ASSURANCE COMPANY
SEPARATE ACCOUNT (E)
BY: TCW ASSET MANAGEMENT COMPANY AS
ATTORNEY-IN-FACT
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
7
CREDIT LYONNAIS, LOS ANGELES BRANCH
By: /s/
------------------------------------
Title:
CREDIT LYONNAIS CANADA
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
BANK AUSTRIA CREDITANSTALT CORPORATE
FINANCE, INC.
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
CRESCENT/MACH I PARTNERS, L.P.
BY: TCW ASSET MANAGEMENT, ITS INVESTMENT
MANAGER
By: /s/
------------------------------------
Title:
DEEPROCK & CO.
BY: XXXXX XXXXX MANAGEMENT AS INVESTMENT
ADVISORS
By: /s/
------------------------------------
Title:
DLJ CAPITAL FUNDING, INC.
By: /s/
------------------------------------
Title:
8
DRESDNER BANK AG NEW YORK & GRAND CAYMAN
BRANCHES
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
DRESDNER BANK CANADA
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
FIRST HAWAIIAN BANK
By: /s/
------------------------------------
Title:
FIRST NATIONAL BANK OF MARYLAND
By: /s/
------------------------------------
Title:
FIRST UNION NATIONAL BANK (f/k/a FIRST UNION
BANK OF NORTH CAROLINA)
By: /s/
------------------------------------
Title:
FIRST UNION NATIONAL BANK,
SUCCESSOR BY MERGER TO CORESTATES BANK, N.A.
By: /s/
------------------------------------
Title:
9
FLEET NATIONAL BANK
By: /s/
------------------------------------
Title:
THE FUJI BANK LIMITED, LOS ANGELES AGENCY
By: /s/
------------------------------------
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/
------------------------------------
Title:
GENERAL RE- NEW ENGLAND MANAGEMENT INC.
By: /s/
------------------------------------
Title:
IMPERIAL BANK, A CALIFORNIA BANKING
CORPORATION
By: /s/
------------------------------------
Title:
INDOSUEZ CAPITAL FUNDING II, LIMITED
BY: INDOSUEZ CAPITAL, AS PORTFOLIO ADVISOR
By: /s/
------------------------------------
Title:
10
THE INDUSTRIAL BANK OF JAPAN, LIMITED, LOS
ANGELES AGENCY
By: /s/
------------------------------------
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
NEW YORK AGENCY
By: /s/
------------------------------------
Title:
KZH CRESCENT LLC
By: /s/
------------------------------------
Title:
KZH SOLEIL LLC
By: /s/
------------------------------------
Title:
THE LONG TERM CREDIT BANK OF JAPAN, LTD.
By: /s/
------------------------------------
Title:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: /s/
------------------------------------
Title:
MELLON BANK, N.A.
By: /s/
------------------------------------
Title:
00
XXXXXX XXXX XXXXXX
By: /s/
------------------------------------
Title:
XXXXXX BANK PLC - NEW YORK BRANCH
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
BY: XXXXXXX XXXXX ASSET MANAGEMENT, L.P., AS
INVESTMENT ADVISOR
By: /s/
------------------------------------
Title:
XXXXXXX XXXXX SENIOR FLOATING RATE FUND,
INC.
By: /s/
------------------------------------
Title:
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/
------------------------------------
Title:
MICHIGAN NATIONAL BANK
By: /s/
------------------------------------
Title:
12
THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY
By: /s/
------------------------------------
Title:
MOUNTAIN CLO TRUST
By: /s/
------------------------------------
Title:
NATIONAL CITY BANK
By: /s/
------------------------------------
Title:
NORWEST BANK ARIZONA, N.A.
By: /s/
------------------------------------
Title:
By: /s/
------------------------------------
Title:
PARIBAS CAPITAL FUNDING L.L.C.
By: /s/
------------------------------------
Title:
PROVIDENT BANK OF MARYLAND
By: /s/
------------------------------------
Title:
ROYALTON COMPANY
By: /s/
------------------------------------
Title:
13
THE SANWA BANK, LIMITED
By: /s/
------------------------------------
Title:
SENIOR DEBT PORTFOLIO
BY: BOSTON MANAGEMENT AND RESEARCH AS
INVESTMENT ADVISOR
By: /s/
------------------------------------
Title:
SOUTHERN PACIFIC BANK
By: /s/
------------------------------------
Title:
THE SUMITOMO BANK, LIMITED, NEW YORK BRANCH
By: /s/
------------------------------------
Title:
THE SUMITOMO BANK OF CANADA
By: /s/
------------------------------------
Title:
SUMITOMO TRUST & BANKING CO., LTD.
By: /s/
------------------------------------
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By: /s/
------------------------------------
Title:
00
XXXXXXX XXXXXXXX (XXXXX), INC.
By: /s/
------------------------------------
Title:
THE TRAVELERS INSURANCE COMPANY
By: /s/
------------------------------------
Title:
UNION BANK OF CALIFORNIA NA
By: /s/
------------------------------------
Title:
XXX XXXXXX PRIME RATE INCOME TRUST
By: /s/
------------------------------------
Title:
VAN KAMPEN CLOI, LIMITED
BY: XXX XXXXXX MANAGEMENT, INC., AS
COLLATERAL MANAGER
By: /s/
------------------------------------
Title:
XXX XXXXXX CLOII, LIMITED
BY: XXX XXXXXX MANAGEMENT, INC., AS
COLLATERAL MANAGER
By: /s/
------------------------------------
Title:
XXX XXXXXX SENIOR INCOME TRUST
By: /s/
------------------------------------
Title:
XXXXXXX BANK
By: /s/
------------------------------------
Title:
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The undersigned hereby consent and agree to the foregoing Fifth Amendment.
NEW YORK SUBWAYS ADVERTISING CO., INC.
By: /s/
------------------------------------
Title:
OUTDOOR SYSTEMS, INC.
By: /s/
------------------------------------
Title:
OUTDOOR SYSTEMS (NEW YORK), INC.
By: /s/
------------------------------------
Title:
OS BUS, INC.
By: /s/
------------------------------------
Title:
NATIONAL ADVERTISING COMPANY
By: /s/
------------------------------------
Title:
PACIFIC CONNECTION, INC.
By: /s/
------------------------------------
Title:
XXXX ENTERPRISES, INC.
By: /s/
------------------------------------
Title:
16
ATLANTIC PROSPECT, INC.
By: /s/
------------------------------------
Title:
OS FLORIDA, INC.
By: /s/
------------------------------------
Title:
PREMIER SPORTS MARKETING, INC.
By: /s/
------------------------------------
Title:
