INCREMENTAL
ASSUMPTION AGREEMENT AND AMENDMENT NO. 3 (this “
Amendment ”) dated as of December 11, 2006, to
the CREDIT AGREEMENT dated as of December 21, 2005, as amended
by the Incremental Assumption Agreement and Amendment No. 1
dated as of November 3, 2006, and Amendment No. 2 dated
as of December 11, 2006 (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. $25,000,000. After giving effect
to this Amendment, the available Incremental Amount shall be
U.S. $25,000,000.
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
4(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.
“ Incremental Effective
Date ” shall mean the first Business Day on or after
December 11, 2006, on which all the conditions set forth or
referred to in Section 4 hereof shall have been satisfied (or
waived by each of the Administrative Agent and the Incremental Term
Lenders), but in no event later than December 21, 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. $25,000,000.
“ Initial Incremental Term
Loans ” means the Incremental Term Loans (as defined in
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).
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. When funded, the Incremental
Term Loans shall be deemed for all purposes under the Credit
Agreement (a) to be made upon and subject to the same terms
as, and in all such respects identical to, the Initial Incremental
Term Loans and (b) to constitute the same Borrowing as the
Borrowing of the Initial Incremental Term Loans. 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. Amendment to
Section 1.01. The definition of the term “
Incremental Assumption Agreement ” shall be deleted
and restated in its entirety as follows:
“ Incremental Assumption
Agreement ” means each of (a) 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
and (b) the Incremental Assumption Agreement and Amendment
No. 3 dated as of December 11, 2006, among Parent, the US
Borrower, the Incremental Term Lenders party thereto and the
Administrative Agent .
SECTION 4. 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 Agreement, provided that the initial Interest
Period with respect to any Eurocurrency Borrowing of the
Incremental Term Loans shall end on December 29, 2006, and
(B) pursuant to which the US Borrower agrees that the
provisions of Section 2.16 of the Credit Agreement shall apply
to any failure by the US Borrower to borrow the Incremental Term
Loans on the Incremental Effective Date and (ii) from each of
Parent, the US Borrower and the Incremental Term Lenders party
hereto, either (A) a counterpart of this Amendment signed on
behalf of such party or (B) written evidence satisfactory to
the Administrative Agent (which may include telecopy or other
electronic transmission of a signed signature page of this
Amendment) that such party has signed a counterpart of this
Amendment.
(b) The consummation of the
Amendment Transactions and the other transactions contemplated
hereby shall not result in (i) a violation by Parent or any of
its Subsidiaries of any material law, rule or regulation generally
applicable to Parent or any of its Subsidiaries or (ii) a
default or event of default under any existing material obligation
of Parent or any of its Subsidiaries under any agreement to which
Parent or any of its Subsidiaries is a party, in each case after
giving effect to the Amendment Transactions and the other
transactions contemplated hereby, and the Administrative Agent and
the Lead Arrangers shall have received a favorable written opinion
(addressed to the Administrative Agent and the Incremental Term
Lenders and dated the Incremental Effective Date) of each of
(x) Fulbright & Jaworski L.L.P., special counsel for the
US Borrower, and (y) other counsel to Parent, the US Borrower
and the other Subsidiaries, in each case in form and substance
reasonably satisfactory to the Administrative Agent and its
counsel. Each of Parent and the US Borrower hereby requests such
counsel to deliver such opinions.
(c) The Administrative Agent
shall have received such documents and certificates as the
Administrative Agent or its counsel may reasonably request relating
to the organization, existence and good standing of each Loan
Party, the auth
