EXHIBIT 4.2
INCREMENTAL ASSUMPTION AGREEMENT AND
AMENDMENT NO. 1 (this “ Amendment ”) dated as of
November 3, 2006, to the CREDIT AGREEMENT dated as of
December 21, 2005 (the “ Credit Agreement
”), among LIVE NATION, INC. (f/k/a CCE SPINCO, INC.), LIVE
NATION WORLDWIDE, INC. (f/k/a SFX ENTERTAINMENT, INC.) and the
FOREIGN BORROWERS party thereto, as Borrowers, JPMORGAN CHASE BANK,
N.A. (“ JPMCB ”), as Administrative Agent,
JPMORGAN CHASE BANK, N.A., TORONTO BRANCH, as Canadian Agent, J.P.
MORGAN EUROPE LIMITED, as London Agent, and BANK OF AMERICA, N.A.
(“ BofA ”), as Syndication Agent.
A. Pursuant to the Credit
Agreement, the Lenders and the Issuing Banks (such terms and each
other capitalized term used but not defined herein having the
meaning assigned to such term in the Credit Agreement (as amended
hereby)) have extended credit to the US Borrower, and have agreed
to extend credit to the Borrowers, in each case pursuant to the
terms and subject to the conditions set forth therein.
B. Pursuant to
Section 2.21 of the Credit Agreement, the US Borrower has
requested that the Incremental Term Lenders provide Incremental
Term Loans to the US Borrower under the Credit Agreement in an
aggregate principal amount of U.S. $200,000,000.
C. The Incremental Term Lenders
are willing to provide such Incremental Term Loans to the US
Borrower pursuant to the terms and subject to the conditions set
forth herein.
D. J.P. Morgan Securities Inc.
(“ JPMorgan ”) and Banc of America Securities
LLC (“ BAS ” and, together with JPMorgan, the
“ Lead Arrangers ”) will act as co-lead
arrangers and joint bookrunners in respect of such Incremental Term
Loans.
Accordingly, in consideration of the
mutual agreements herein contained and other good and valuable
consideration, the sufficiency and receipt of which are hereby
acknowledged, and subject to the conditions set forth herein, the
parties hereto hereby agree as follows:
SECTION 1. Defined Terms. As
used in this Amendment, the following terms have the meanings
specified below:
“
Amendment Transactions ” means the execution and
delivery of this Amendment and the Reaffirmation Agreement (as
defined in Section 10(g) hereof) by each Person party hereto or
thereto, the satisfaction of the conditions to the effectiveness
hereof and thereof and the consummation of the transactions
contemplated hereby and thereby.
“
HOBE ” means HOB Entertainment, Inc., a Delaware
corporation.
“ HOBE
Acquisition ” means the US Borrower’s acquisition
of HOBE, pursuant to the HOBE Merger Agreement.
“ HOBE
Merger Agreement ” means the Agreement and Plan of
Merger, dated as of June 30, 2006, by and among the US
Borrower, Harry Merger Sub Inc., a Delaware corporation, HOBE and
the stockholders party thereto.
“
Incremental Effective Date ” shall mean the first
Business Day on or after November 3, 2006, on which all the
conditions set forth or referred to in Section 10 hereof shall
have been satisfied (or waived by each of the Administrative Agent
and the Incremental Term Lenders), but in no event later than
November 10, 2006.
“
Incremental Term Lenders ” means the Persons listed on
Schedule 1 hereto.
“
Incremental Term Commitment ” means, with respect to
each Incremental Term Lender, the commitment of such Incremental
Term Lender to make an Incremental Term Loan hereunder on the
Incremental Effective Date, expressed as an amount representing the
maximum principal amount of the Incremental Term Loan to be made by
such Incremental Term Lender hereunder, as set forth on
Schedule 1 hereto. The aggregate amount of the Incremental
Term Commitments of all Incremental Term Lenders as of the date of
this Amendment will be U.S. $200,000,000.
SECTION 2. Commitment.
Subject to the terms and conditions set forth herein, each
Incremental Term Lender agrees to make an Incremental Term Loan to
the US Borrower on the Incremental Effective Date in a principal
amount not exceeding such Incremental Term Lender’s
Incremental Term Commitment. The funding of the Incremental Term
Loans on the Incremental Effective Date shall be consummated at a
closing to be held at the offices of Cravath, Swaine & Moore
LLP, or at such other place as the US Borrower and the
Administrative Agent shall agree upon. Unless previously
terminated, the Incremental Term Commitments shall terminate at
5:00 p.m., New York City time, on the Incremental Effective
Date.
SECTION 3. Amendments to
Section 1.01. (a) Section 1.01 of the Credit
Agreement is hereby amended by adding the following definitions in
the appropriate alphabetical order:
“
Incremental Assumption Agreement ” means the
Incremental Assumption Agreement and Amendment No. 1 dated as
of November 3, 2006, among Parent, the US Borrower, the
Incremental Term Lenders party thereto and the Administrative
Agent.
“
Incremental Effective Date ” has the meaning set forth
in Section 1 of the Incremental Assumption Agreement.
“
Incremental Term Maturity Date ” means
December 21, 2013.
(b) The definition of the term
“ Applicable Rate ” in Section 1.01 of the
Credit Agreement is hereby amended by deleting the text “and
(b)” in the third line of the first paragraph thereof and
inserting the following text in its place: “, (b) with
respect to any Incremental Term Loan, (i) 1.50% per annum, in
the case of an ABR Loan, or (ii) 2.50% per annum, in the case
of a Eurocurrency Loan, and (c)”.
(c) The definition of the term
“ Commitment ” in Section 1.01 of the
Credit Agreement is hereby amended by inserting the text “,
Incremental Term Commitment” immediately following the text
“Term Commitment”.
(d) The definition of the term
“ Lenders ” in Section 1.01 of the Credit
Agreement is hereby amended by inserting the text “or an
Incremental Assumption Agreement” immediately following the
first occurrence of the text “Assignment and
Assumption”.
(e) The definition of the term
“ Loan Documents ” in Section 1.01 of the
Credit Agreement is hereby amended by inserting the text “any
Incremental Document,” immediately following the text
“Section 2.09(e),”.
(f) The definition of the term
“ Loans ” in Section 1.01 of the Credit
Agreement is hereby amended by inserting the text “or an
Incremental Assumption Agreement” at the end thereof.
(g) The definition of the term
“ Required Lenders ” in Section 1.01 of the
Credit Agreement is hereby amended by (i) inserting the text
“, Incremental Term Loans” immediately following the
first occurrence of the text “Term Loans” and
(ii) inserting the text “, outstanding Incremental Term
Loans” immediately following the text “outstanding Term
Loans”.
(h) The definition of the term
“ Tranche ” in Section 1.01 of the Credit
Agreement is hereby amended by (i) replacing the second
occurrence of the text “and” in the fourth line thereof
with “,” and (ii) inserting the text “and
(d) the Incremental Term Commitments and the Incremental Term
Loans” at the end of such definition.
SECTION 4. Amendment to
Section 2.02. Section 2.02(b) of the Credit Agreement
is hereby amended by deleting clause (i) of the first proviso
thereof and inserting the following text: “all Borrowings
made on the Effective Date and on the Incremental Effective Date
must be denominated in US Dollars;”.
SECTION 5. Amendment to
Section 2.09. Section 2.09(a) of the Credit Agreement
is hereby amended by replacing “and (iii)” in the sixth
line thereof with “, (iii) to the Administrative Agent
for the account of each Incremental Term Lender the then unpaid
principal amount of each Incremental Term Loan of such Incremental
Term Lender as provided in Section 2.10 and (iv)”.
SECTION 6. Amendments to
Section 2.10. Section 2.10 of the Credit Agreement is
hereby amended as follows:
(a) by amending clause
(a) thereof by inserting the text “(i)”
immediately before the text “the US Borrower” in the
second line thereof and inserting the following text at the end of
such clause (a): “and (ii) the US Borrower shall
repay to the Administrative Agent for the ratable account of the
Incremental Term Lenders on the last Business Day of each March,
June, September and December, commencing on March 31, 2007, an
aggregate principal amount equal to 0.25% of the aggregate
principal amount of all Incremental Term Loans outstanding on the
Incremental Effective Date”
(b) by amending clause
(b) thereof by inserting the text “and all Incremental
Term Loans shall be due and payable on the Incremental Term
Maturity Date” at the end thereof.
SECTION 7. Amendments to
Section 2.11. Section 2.11 of the Credit Agreement is
hereby amended by inserting the following clause (g) at the
end thereof:
“(g) Any
repayment or prepayment of Term Borrowings pursuant to this Section
2.11 shall be allocated between the Term Borrowings and the
Incremental Term Borrowings ratably in accordance with the
respective principal amounts outstanding thereof.”
SECTION 8. Amendment to
Section 9.03. Section 9.03(c) of the Credit Agreement
is hereby amended by inserting the text “, outstanding
Incremental Term Loans” immediately following the text
“outstanding Term Loans” in the last sentence
thereof.
SECTION 9. Amendment to
Section 9.04. Section 9.04(b) of the Credit Agreement
is hereby amended as follows:
(a) by inserting the text
“or Incremental Term Loan” immediately following the
text “Term Loan” in clause (i)(B) thereof.
(b) by replacing the text
“or a Term Loan” in the eighth line of clause (ii)(A)
thereof with the following text: “, Term Loan, Incremental
Term Commitment or Incremental Term Loan”.
SECTION 10. Conditions to
Funding. The obligations of the Incremental Term Lenders to
make the Incremental Term Loans hereunder shall not become
effective until the date on which each of the following conditions
is satisfied:
(a) The Administrative Agent (or,
in the case of clause (ii) below, its counsel) shall have
received (i) from the US Borrower, at or prior to the time
required by Section 2.03 of the Credit Agreement, a Borrowing
request with respect to the Borrowing of the Incremental Term Loans
(A) that complies with the requirements of Section 2.03
of the Credit Agree
