AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO. 1
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AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO. 1 (this "AMENDMENT"), dated
as of November 20, 1998, to the Credit and Guarantee Agreement (as amended, the
"CREDIT AGREEMENT"), dated as of February 26, 1998, by and among SFX
Entertainment, Inc., a Delaware corporation (the "BORROWER"), the Subsidiary
Guarantors party thereto, the several banks and other parties from time to time
parties thereto (the "LENDERS"), Xxxxxxx Xxxxx Credit Partners L.P. and Xxxxxx
Commercial Paper Inc., as co-documentation agents, and The Bank of New York, as
the administrative agent (in such capacity, the "ADMINISTRATIVE AGENT").
RECITALS
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I. Capitalized terms used herein which are not otherwise defined herein
shall have the respective meanings ascribed thereto in the Credit Agreement.
II. The Borrower has proposed to issue up to an additional $200,000,000 of
subordinated notes. Such issuance would not meet the requirements of Section
8.1 of the Credit Agreement. The Borrower has asked that the Credit Agreement
be amended to permit such issuance.
III. The Borrower acquired 100% of the capital stock of Magicworks
Entertainment Incorporated, a Delaware corporation ("MAGICWORKS") on September
11, 1998. Share certificates evidencing the capital stock of certain
Subsidiaries of Magicworks (the "MAGICWORKS SHARE CERTIFICATES") are in the
possession of a third party and, therefore, the Borrower is not in compliance
with Section 7.9(iv) of the Credit Agreement which requires stock of each new
Subsidiary to be delivered to the Administrative Agent within ten Business Days
of the acquisition thereof (the "7.9(iv) REQUIREMENT"). The Borrower has asked
that the 7.9(iv) Requirement and any resulting Default be waived.
IV. The Borrower has asked that certain non wholly-owned Subsidiaries
(single-purpose touring companies) acquired in connection with the acquisition
of Magicworks, be treated as "Excluded Subsidiaries" under the Credit
Agreement.
Accordingly, in consideration of the Recitals and the covenants and
conditions hereinafter set forth, and for other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the
Borrower, the Subsidiary Guarantors and the Administrative Agent agree as
follows:
1. The Administrative Agent waives the 7.9(iv) Requirement with respect to
the Magicworks Share Certificates until March 31, 1999.
2. Section 1.1 of the Credit Agreement is amended by adding the following
defined terms:
"SECOND SUBORDINATED INDENTURE" means the Indenture, dated as of
November 24, 1998, among the Borrower, the guarantors party thereto and
The Chase Manhattan Bank, as trustee.
"SECOND SUBORDINATED NOTES" means, collectively, the 9.125% Series A
Senior Subordinated Notes due 2008 and the 9.125% Series B Senior
Subordinated Notes due 2008 issued by the Borrower pursuant to the Second
Subordinated Indenture.
3. The defined term "APPLICABLE MARGIN" contained in Section 1.1 of the
Credit Agreement is amended and restated in its entirety as set forth on
Schedule A hereto.
4. The defined term "CHANGE OF CONTROL" contained in Section 1.1 of the
Credit Agreement is amended by adding the phrase "or the Second Subordinated
Indenture" immediately after the phrase "in the Subordinated Indenture".
5. The defined term "DISQUALIFIED STOCK" contained in Section 1.1 of the
Credit Agreement is amended by adding the phrase "later of the date on which
the Second Subordinated Notes mature or the" immediately after the phrase "91
days after the".
6. The defined term "SENIOR DEBT" contained in Section 1.1 of the Credit
Agreement is amended by adding the phrase "and the Second Subordinated Notes"
immediately after the phrase "the Subordinated Notes".
7. The defined term "TRANSACTION DOCUMENTS" contained in Section 1.1 of
the Credit Agreement is amended by adding the phrase "(and, solely for purposes
of Section 11.4, the Second Subordinated Notes and the Second Subordinated
Indenture)" immediately after the phrase "the Subordinated Notes,".
8. Schedule 1.1A to the Credit Agreement is amended by adding each of the
following thereto:
The Gin Game Touring Company
Jefko Touring Company
Cheva Touring Company
Magicworks Exhibitions Joint Venture
Gershwins' Fascinating Rhythm
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9. Section 4.15 of the Credit Agreement is amended by adding the phrase
"and the Second Subordinated Indenture" immediately before the period at the
end thereof.
10. Section 8.1(e) of the Credit Agreement is amended and restated in its
entirety as follows:
(e) up to $350,000,000 of Indebtedness in respect of the Subordinated
Notes and up to $200,000,000 of Indebtedness in respect of the Second
Subordinated Notes;
11. Section 8.12(a) of the Credit Agreement is amended and restated in its
entirety as follows:
(a) The Borrower shall not, and shall not permit any Restricted
Subsidiary to, enter into or agree to any amendment, modification or
waiver of any term or condition of any Subordinated Note, any Second
Subordinated Note, the Subordinated Indenture or the Second Subordinated
Indenture.
12. Section 8.14 of the Credit Agreement is amended (i) by adding the
phrase "or any Second Subordinated Note" immediately after the phrase "any
Subordinated Note" in subsection (a); and (ii) by adding the phrase "or any
Second Subordinated Notes" immediately after the phrase "the Subordinated
Notes" in subsection (b).
13. Section 9.1(f) of the Credit Agreement is amended by adding the phrase
"or the Second Subordinated Indenture" immediately after the phrase "the
Subordinated Indenture".
14. Sections 1 - 13 of this Amendment shall not be effective until such
date (the "AMENDMENT EFFECTIVE DATE") as each of the following conditions shall
have been satisfied:
(a) Required Lenders shall have consented to the execution and
delivery hereof by the Administrative Agent, and
(b) The Borrower shall have paid to the Administrative Agent, for the
account of each Lender that executes and delivers this Amendment to the
Administrative Agent by 2:00 p.m., New York time on Tuesday, November 24,
1998, an amendment fee of 0.25% of the aggregate of such Lender's
Revolving Commitment and outstanding Term Loan.
15. As of the date hereof, the Borrower hereby (a) reaffirms and admits
the validity and enforceability of the Loan Documents and all of its
obligations thereunder,
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(b) agrees and admits that it has no defenses to or offsets against any
such obligation, (c) represents and warrants that, except as otherwise
described herein, no Default has occurred and is continuing, and that each
of the representations and warranties made by it in the Credit Agreement
is true and correct with the same effect as though such representation and
warranty had been made on such date, and (d) agrees to pay the reasonable
fees and disbursements of Special Counsel in connection with this
Amendment.
16. In all other respects, the Loan Documents shall remain in full force
and effect, and no consent in respect of any term or condition of any Loan
Document contained herein shall be deemed to be a consent in respect of any
other term or condition contained in any Loan Document.
17. This Amendment may be executed in any number of counterparts all of
which, taken together, shall constitute one Amendment. In making proof of this
Amendment, it shall only be necessary to produce the counterpart executed and
delivered by the party to be charged.
18. THIS AMENDMENT IS BEING EXECUTED AND DELIVERED IN, AND IS INTENDED TO
BE PERFORMED IN, THE STATE OF NEW YORK AND SHALL BE CONSTRUED AND ENFORCEABLE
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
SFX ENTERTAINMENT, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: VP & CPO
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EACH OF THE SUBSIDIARY GUARANTORS
LISTED ON SCHEDULE I HERETO
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
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Title: VP & CPO
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
THE BANK OF NEW YORK,
in its individual capacity, as
Issuer, and as Administrative
Agent
By: /s/ illegible
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Name: illegible
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Title: Vice President
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
in its individual capacity and as
Co-Documentation Agent
By: /s/ Xxxxxx Xxxxx
------------------------------
Name: Xxxxxx Xxxxx
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Title: Authorized Signatory
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
XXXXXX COMMERCIAL PAPER INC.,
as Co-Documentation Agent
By: /s/ illegible
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Name: illegible
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Title: Authorized Signatory
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SYNDICATED LOAN FUNDING TRUST
By: Xxxxxx Commercial Paper Inc.
not in its individual capacity
but solely as Asset Manager
By: /s/ illegible
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Name: illegible
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Title: Authorized Signatory
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
BANKBOSTON, N.A.
By: /s/ illegible
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Name: illegible
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Title: Director
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
FIRST DOMINION FUNDING I
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx Xxxxxxx
----------------------------
Title: Authorized Signatory
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Vice President
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
PNC BANK, NATIONAL ASSOCIATION
By: /s/ illegible
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Name: illegible
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Title: Vice President
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital Luxembourg,
as Collateral Manager
By: /s/ Xxxxxxxxx Xxxxxxxxx
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Name: Xxxxxxxxx Xxxxxxxxx
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Title: Authorized Signatory
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
THE ING CAPITAL SENIOR SECURED
HIGH INCOME FUND, L.P.
By: ING CAPITAL ADVISORS, INC.,
as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
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Title: Senior Vice President
& Portfolio Manager
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
ARCHIMEDES FUNDING, L.L.C.
By: ING CAPITAL ADVISORS, INC.,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
----------------------------
Title: Senior Vice President
& Portfolio Manager
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
ARCHIMEDES FUNDING, II, LTD.
By: ING CAPITAL ADVISORS, INC.,
as Collateral Manager
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
----------------------------
Title: Senior Vice President
& Portfolio Manager
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Authorized Signatory
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
CONTINENTAL ASSURANCE COMPANY
Separate Account (E)
By: Highland Capital Management, L.P.,
as attorney-in-fact
By:
--------------------------------------
Name:
------------------------------------
Title:
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
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Title: Authorized Signatory
---------------------------------
SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
XXXXXXX XXXXX PRIME RATE PORTFOLIO
By: Xxxxxxx Xxxxx Asset Management, L.P.,
as Investment Advisor
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Authorized Signatory
---------------------------------
SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
XXX CAPITAL FUNDING, L.P.
By: Highland Capital Management, L.P.,
as Collateral Manager
By:
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Name:
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Title:
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
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Name: Payson X. Xxxxxxxxx
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Title: Vice President
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
SENIOR INCOME TRUST
By: Boston Management and Research,
as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
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Name: Payson X. Xxxxxxxxx
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Title: Vice President
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
By:
------------------------------
Name:
----------------------------
Title:
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
XXX XXXXXX AMERICAN CAPITAL
SENIOR INCOME TRUST
By:
------------------------------
Name:
----------------------------
Title:
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 XXX XXXXXX XX.0
XXX AMRO BANK
By: /s/ Xxxxxx Dry
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Name: Xxxxxx Dry
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Title: Group Vice President
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By: /s/ Xxxxxxx O.R. Xxxxx
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Name: Xxxxxxx O.R. Xxxxx
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Title: Group Vice President
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SFX AMENDMENT XX. 0, XXXXXXX XX. 0 AND WAIVER NO.1
FREMONT FINANCIAL CORPORATION
By:
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Name:
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Title:
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SCHEDULE A
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"APPLICABLE MARGIN" means, at all times during which the applicable period
set forth below is in effect: (i) with respect to Revolving Loans consisting of
ABR Advances, the percentage set forth below under the heading "Revolving Loan
ABR Margin" and adjacent to such applicable period, (ii) with respect to
Revolving Loans consisting of Eurodollar Advances and Letter of Credit Fees,
the percentage set forth below under the heading "Revolving Loan Eurodollar and
LC Margin" and adjacent to such applicable period, (iii) with respect to Term
Loans consisting of ABR Advances, the percentage set forth below under the
heading "Term Loan ABR Margin" and adjacent to such applicable period, and (iv)
with respect to Term Loans consisting of Eurodollar Advances, the percentage
set forth below under the heading "Term Loan Eurodollar Margin" and adjacent to
such applicable period:
------------------------------------------- ------------------ -------------- --------------- ----------------
Revolving
Revolving Loan Term Term
Loan Eurodollar Loan Loan
ABR and LC ABR Eurodollar
Period Margin Margin Margin Margin
------------------------------------------- ------------------ -------------- --------------- ----------------
when the Total Leverage Ratio is 2.125% 3.250% 2.500% 3.625%
equal to or greater than 6.50:1.00
------------------------------------------- ------------------ -------------- --------------- ----------------
when the Total Leverage Ratio is 2.000% 3.125% 2.500% 3.625%
equal to or greater than 6.00:1.00
but less than 6.50:1.00
------------------------------------------- ------------------ -------------- --------------- ----------------
when the Total Leverage Ratio is 1.750% 2.875% 2.250% 3.375%
equal to or greater than 5.50:1.00
but less than 6.00:1.00
------------------------------------------- ------------------ -------------- --------------- ----------------
when the Total Leverage Ratio is 1.500% 2.625% 2.125% 3.250%
equal to or greater than 5.00:1.00
but less than 5.50:1.00
------------------------------------------- ------------------ -------------- --------------- ----------------
when the Total Leverage Ratio is 1.250% 2.375% 2.125% 3.250%
equal to or greater than 4.50:1.00
but less than 5.00:1.00
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when the Total Leverage Ratio is 1.000% 2.125% 2.000% 3.125%
equal to or greater than 4.00:1.00
but less than 4.50:1.00
------------------------------------------- ------------------ -------------- --------------- ----------------
------------------------------------------- ------------------ -------------- --------------- ----------------
when the Total Leverage Ratio is 0.750% 1.875% 2.000% 3.125%
equal to or greater than 3.50:1.00
but less than 4.00:1.00
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when the Total Leverage Ratio is 0.500% 1.625% 2.000% 3.125%
less than 3.50:1.00
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During the period commencing on the Effective Date and ending on the date of
delivery to the Administrative Agent of a Compliance Certificate for the fiscal
quarter ending September 30, 1998 pursuant to Section 7.1(c), the Total
Leverage Ratio for purposes of determining the Applicable Margin shall be
deemed to be greater than 6.50:1.00. Thereafter, changes in the Applicable
Margin resulting from a change in the Total Leverage Ratio shall be based upon
the Compliance Certificate most recently delivered pursuant to Section 7.1(c)
or 8.5(a) and shall become effective on the date such Compliance Certificate is
delivered to the Administrative Agent and the Lenders. Notwithstanding anything
to the contrary contained in this definition, if the Borrower shall fail to
deliver to the Administrative Agent a Compliance Certificate on or prior to any
date required hereby, for purposes of calculating the Applicable Margin, the
Total Leverage Ratio from and including such date to the date of delivery to
the Administrative Agent of such Compliance Certificate shall be deemed to be
greater than 6.50:1.00.
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