Exhibit 10.2
GUARANTEE
AGREEMENT
GUARANTEE AGREEMENT, dated as of
May 15, 2009 (this “ Guarantee ”), made by
SIX FLAGS, INC., a Delaware corporation (“ SFI
”), SIX FLAGS OPERATIONS INC., a Delaware corporation
(“ SFO ”), and SIX FLAGS THEME PARKS INC., a
Delaware corporation (“ SFTP ”) (each, a “
Guarantor ”, and collectively, the “
Guarantors ”), in favor of TW-SF LLC, a Delaware
limited liability company (the “ Lender ”), as
lender under the Promissory Note, dated as of the date hereof (as
amended, supplemented or otherwise modified from time to time, the
“ Note ”), evidencing a loan made to SFOG
ACQUISITION A, INC., a Delaware corporation, SFOG ACQUISITION B,
L.L.C., a Delaware limited liability company, SFOT ACQUISITION I,
INC., a Delaware corporation, and SFOT ACQUISITION II, INC., a
Delaware corporation (each, a “ Borrower ” and
together, the “ Borrowers ”) in the principal
amount of $52,507,000.00 (the “ Loan
”).
W I T N E S S E T H:
WHEREAS, the Lender has agreed to
make the Loan to the Borrowers upon the terms and subject to the
conditions set forth in the Note;
WHEREAS, it is a condition precedent
to the obligation of the Lender to make the Loan to the Borrowers
that the Guarantors shall have executed and delivered this
Guarantee in favor of the Lender; and
WHEREAS, each Guarantor has certain
obligations pursuant to the 2009 Liquidity Put under the
Subordinated Indemnity Agreement and it is for the benefit of each
Guarantor that the Lender has agreed to make the Loan to enable the
Borrowers to satisfy the 2009 Liquidity Put obligations.
NOW, THEREFORE, in consideration of
the premises and to induce the Lender to enter into the Note and to
make the Loan to the Borrowers on the terms and conditions set
forth in the Note, each Guarantor hereby agrees with the Lender,
for the benefit of the Lender as follows:
SECTION 1.
Definitions.
(a)
Unless otherwise defined herein, terms defined in the Note and used
herein shall have the meanings given to them in the
Note.
(b)
Unless the context requires otherwise, (i) the words
“hereof”, “herein” and
“hereunder” and words of similar import when used in
this Guarantee shall refer to this Guarantee as a whole and not to
any particular provision of this Guarantee, and (ii) all
Section, Schedule and Exhibit references are to this Guarantee
unless otherwise specified.
(c)
Except as specifically provided herein, the meanings given to terms
defined herein shall be equally applicable to both the singular and
plural forms of
such terms. Whenever
the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The
words, “include,” “includes” and
“including” shall be deemed to be followed by the
phrase “without limitation.” The word
“will” shall be construed to have the same meaning and
effect as the word “shall.”
When the payment of any obligation
or the performance of any covenant, duty or obligation is stated to
be due or performance required on a day which is not a Business
Day, the date of such payment or performance shall extend to the
immediately succeeding Business Day.
SECTION 2.
Guarantee.
(a)
Each Guarantor, jointly and severally, hereby unconditionally and
irrevocably guarantees to the Lender, for the benefit of the Lender
and its successors, endorsees, transferees and assigns, the prompt
and complete payment by the Borrowers as and when due (whether at
the stated maturity, by acceleration or otherwise) of the
Guaranteed Obligations. All Guaranteed Obligations shall be
conclusively presumed to have been created in reliance on this
Guarantee.
(b)
Anything herein or in any other Loan Document to the contrary
notwithstanding, the maximum liability of each Guarantor hereunder
and under the other Loan Documents shall in no event exceed
the amount which can be guaranteed by such Guarantor, or secured by
assets of such Guarantor, under applicable federal and state laws
relating to the insolvency of debtors.
(c)
If any of the Guaranteed Obligations, or any part thereof, are not
paid when due, either by its terms or as the result of exercise of
any power to accelerate, each Guarantor shall, on demand therefor
by the Lender, pay the amount due thereon to the Lender, and it
shall not be necessary for the Lender (and each Guarantor expressly
waives any rights it might otherwise have to require the Lender) to
proceed against any Borrower, any other Guarantor or any other
Person; provided , however , that no demand shall be
required if such demand is impracticable or otherwise prohibited by
a Requirement of Law (including upon the occurrence of a Borrower
Bankruptcy Event or a Guarantor Bankruptcy Event).
(d)
This Guarantee shall remain in full force and effect until the
Guaranteed Obligations are paid in full.
(e)
Each Guarantor agrees that whenever, at any time, or from time to
time, it shall make any payment to the Lender on account of its
liability hereunder, it will notify the Lender in writing that such
payment is made under this Guarantee for such purpose.
(f)
No payment or payments made by the Borrowers, any Guarantor or any
other Person or received or collected by the Lender from the
Borrowers, any Guarantor or any other Person by virtue of any
action or proceeding or any setoff or appropriation or payment of
the Guaranteed Obligations shall be deemed to modify,
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reduce, release or otherwise
affect the liability of any other Guarantor hereunder who shall,
notwithstanding any such payment or payments (other than payments
made by any Borrower, such Guarantor or any other Guarantor in
respect of the Guaranteed Obligations or payments received or
collected from any Borrower, such Guarantor or any other Guarantor
in respect of the Guaranteed Obligations), remain liable for the
Guaranteed Obligations, up to the maximum liability of such
Guarantor hereunder until the Guaranteed Obligations are paid in
full.
(g)
Notwithstanding anything herein or in the Note to the contrary, the
maximum liability of the Guarantors in respect of the Guaranteed
Obligations shall in no event exceed $10,000,000, in the
aggregate.
SECTION 3.
No Subrogation. Notwithstanding any payment or payments
made by any Guarantor hereunder, or any setoff or application of
funds of any Guarantor by the Lender, no Guarantor shall be
entitled to be subrogated to any of the rights of the Lender
against the Borrowers or any other Guarantor or against any
guarantee or right of setoff held by the Lender for the payment of
the Guaranteed Obligations, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from the
Borrowers or any other Guarantor in respect of payments made by
such Guarantor hereunder, until all amounts owing to the Lender by
the Borrowers on account of the Guaranteed Obligations are paid in
full. Without limiting the foregoing, if any amount shall be
paid to any Guarantor on account of such subrogation rights or
otherwise at any time when all of the Guaranteed Obligations shall
not have been paid in full, such amount shall be held by such
Guarantor in trust for the Lender, segregated from other funds of
such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Lender in the exact form received
by such Guarantor (duly indorsed by such Guarantor to the Lender,
if required), to be applied against the Guaranteed Obligations,
whether matured or unmatured, in such order as the Lender may
determine.
SECTION 4.
Amendments, etc. with Respect to the Guaranteed Obligations;
Waiver of Rights. Each Guarantor shall remain obligated
hereunder notwithstanding that, without any reservation of rights
against any Guarantor, and without notice to or further assent by
any Guarantor, (a) any demand for payment of any of the
Guaranteed Obligations made by the Lender may be rescinded by the
Lender, and any of the Guaranteed Obligations continued,
(b) the Guaranteed Obligations, or the liability of any other
Person upon or for any part thereof, or any guarantee therefor or
right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the
Lender, (c) the Note may be amended, modified, supplemented or
terminated, in whole or in part, and (d) any guarantee or
right of offset at any time held by the Lender for the payment of
the Guaranteed Obligations may be sold, exchanged, waived,
surrendered or released.
SECTION 5.
Guarantee Absolute and Unconditional.
Each Guarantor waives any and all
notice of the creation, renewal, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by the
Lender upon this Guarantee or acceptance of this Guarantee; the
Guaranteed Obligations, and any of them, shall
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conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in
reliance upon this Guarantee; and all dealings between the
Borrowers or any Guarantor, on the one hand, and the Lender, on the
other, shall likewise be conclusively presumed to have been had or
consummated in reliance upon this Guarantee. Each Guarantor
waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon the Borrowers or any
Guarantor with respect to the Guaranteed Obligations. This
Guarantee shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the
validity, regularity or enforceability of the Note, any of the
Guaranteed Obligations or any guarantee or right of offset with
respect thereto at any time or from time to time held by the
Lender, (b) any defense, setoff or counterclaim (other than a
defense of payment) which may at any time be available to or be
asserted by the Borrowers or any other Person against the Lender,
or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrowers or the Guarantors) which
constitutes, or might be construed to constitute, an equitable or
legal discharge of the Borrowers from the Guaranteed Obligations,
or of any or all of the Guarantors under this Guarantee, in
bankruptcy or in any other instance. When making a demand
hereunder or otherwise pursuing its rights and remedies hereunder
against any Guarantor, the Lender may, but shall be under no
obligation to, make a similar demand on or otherwise pursue such
rights and remedies as it may have against the Borrowers, any other
Guarantor or any other Person or against any guarantee for the
Guaranteed Obligations or any right of offset with respect thereto,
and any failure by the Lender to make any such demand, to pursue
such other rights or remedies or to collect any payments from the
Borrowers or any such other Person or to realize upon any or
guarantee or to exercise any such right of offset, or any release
of the Borrowers or any such other Person or of any guarantee or
right of offset, shall not relieve any Guarantor of any liability
hereunder, and shall not impair or affect the rights and remedies,
whether express, implied or available as a matter of law, of the
Lender against any Guarantor. For the purposes hereof
“demand” shall include the commencement and continuance
of any legal proceedings.
SECTION 6.
Payments. Each Guarantor hereby agrees that payments
hereunder will be paid to the Lender without setoff or counterclaim
by wire transfer of immediately available funds to an account or by
such other reasonable means as the Lender may specify.
SECTION 7.
Authorization. Each Guarantor authorizes the Lender, without
notice to or further assent by such Guarantor and without affecting
such Guarantor’s liability hereunder (regardless of whether
any subrogation or similar right that such Guarantor may have or
any other right or remedy of such Guarantor is extinguished or
impaired), from time to time to:
(a)
terminate, release, compromise, subordinate, extend, accelerate or
otherwise change the amount or time, manner or place of payment of,
or rescind any demand for payment or acceleration of, the
Guaranteed Obligations or any part thereof, or otherwise amend or
waive the terms and conditions of the Note, or any provision
thereof;
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(b)
exercise, fail to exercise, waive, suspend, terminate or suffer
expiration of any of the remedies or rights of the Lender against
any Borrower or any other Guarantor in respect of any Guaranteed
Obligations, as the Lender may elect in its discretion;
(c)
release, partially release, add or settle with any Borrower or any
Guarantor, whether expressly, by operation of law or without
limitation otherwise;
(d)
accept partial payments on the Guaranteed Obligations and apply any
and all payments or recoveries from any Borrower or any Guarantor
to such of the Guaranteed Obligations as the Lender may elect in
its discretion;
(e)
refund at any time, at the discretion of the Lender, any payments
or recoveries received by the Lender in question as the case may
be, in respect of any Guaranteed Obligations; and
(f)
otherwise deal with any Borrower and any Guarantor as the Lender
may elect in its or its discretion.
SECTION 8.
Certain Agreements and Waivers by the Guarantors.
Each Guarantor hereby agrees that
neither the Lender’s rights or remedies nor such
Guarantor’s obligations under this Guarantee shall be
released, diminished, impaired, reduced or affected by any one or
more of the following events, actions, facts or circumstances, and
the liability of such Guarantor under this Guarantee shall, be
absolute, unconditional and irrevocable irrespective of:
(a)
the insolvency, bankruptcy, dissolution, liquidation, termination,
receivership, reorganization, merger, consolidation, change of
form, structure or ownership, sale of all assets, or lack of
corporate, partnership, limited partnership, limited liability
company or other power of any Borrower, any Guarantor or any other
Person at any time liable for the payment of any or all of the
Guaranteed Obligations;
(b)
all rights and benefits under applicable law purporting to reduce a
Guarantor’s obligations in proportion to the obligation of
the principal or providing that the obligation of a surety or
guarantor must neither be larger nor in other respects more
burdensome than that of the principal;
(c)
except as otherwise specifically provided in this Guarantee, any
requirement of marshaling or any other principle of election of
remedies and all rights and defenses arising out of an election of
remedies by the Lender, even though that election of remedies has
destroyed a Guarantor’s rights of subrogation and
reimbursement against any Borrower or any other
Guarantor;
(d)
any right to assert against the Lender any defense (legal or
equitable), set-off, counterclaim and other right that such
Guarantor may now or any time hereafter have against any Borrower
or any other Guarantor;
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(e)
presentment, diligence in making demands hereunder, notice of
dishonor or nonperformance, protest, acceptance and notice of
acceptance of this Guarantee; or
(f)
any order, ruling or plan of reorganization emanating from any
proceeding under Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.), or any successor statute, in each case
as amended from time to time with respect to any Borrower or any
other Person, including any extension, reduction, composition, or
other alteration of the Guaranteed Obligations, whether or not
consented to by the Lender.
SECTION 9.
Duty of Inquiry. Each Guarantor assumes the responsibility for
being and keeping itself informed of the financial condition of
each Borrower and each other Guarantor and of all other
circumstances bearing upon the risk of nonpayment of the Guaranteed
Obligations that diligent inquiry would reveal, and agrees that the
Lender shall have no duty to advise the Guarantor of information
regarding such condition or any such circumstances.
SECTION 10.
Bankruptcy No Discharge.
(a)
This Guarantee shall not be discharged or otherwise affected, with
respect to any Guarantor, by any bankruptcy, reorganization or
similar proceeding commenced by or against any Borrower or any
Guarantor, including (i) any discharge of, or bar or stay
against collecting, all or any part of the Guaranteed Obligations
in or as a result of any such proceeding, whether or not assented
to by the Lender, or (ii) any disallowance of all or any
portion of the Lender’s claim for repayment of the Guaranteed
Obligations. If acceleration of the time for payment of any
Guaranteed Obligations is stayed or delayed as a result of any such
proceeding, all such amounts shall nonetheless be payable by such
Guarantor on demand by the Lender.
(b)
If a payment by any Borrower or any other Guarantor is made and is
later determined not to have been indefeasibly made in whole or in
part, such payment by any Borrower or Guarantor to the Lender shall
not constitute a release of any other Guarantor from any liability
hereunder and (i) this Guarantee shall continue to be
effective or shall be reinstated notwithstanding any prior release,
surrender or discharge by the Lender of this Guarantee and/or of
the Guarantors, and (ii) this Guarantee shall apply to, any
and all amounts so refunded by the Lender or paid by the Lender to
another Person (including any interest included in such amount),
all as though such payment had not been made or such proceeds had
not been received.
SECTION 11.
Representations and Warranties .
To induce the Lender to enter into
the Note and to induce the Lender to make the Loan to the
Borrowers, each Guarantor hereby jointly and severally represents
and warrants to the Lender that, as of the date hereof:
(a)
Existence; Compliance with
Law . Each of the
Guarantors (i) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of
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its organization,
(ii) has the corporate (or equivalent) power and authority,
and the legal right, to own and operate its Property, to lease the
Property it operates as lessee and to conduct the Business in which
it is currently engaged, (iii) is duly qualified as a foreign
entity and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of Property or the conduct
of its Business requires such qualification and (iv) is in
compliance with all Requirements of Law, except, in the case of
clauses (ii) through (iv), to the extent that the failure to
comply therewith, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse
Effect.
(b)
Power; Authorization; Enforceable
Obligations . Each Guarantor has
the corporate power and authority, and the legal right, to make,
deliver and perform this Guarantee and the Guaranteed
Obligations. Each Guarantor has taken all necessary corporate
action to authorize the execution, delivery and performance of this
Guarantee on the terms and conditions herein and the performance of
the Guaranteed Obligations. No consent or authorization of,
or filing with, any Person is required in connection with the
execution, delivery and performance by each Guarantor of this
Guarantee. This Guarantee has been duly executed and
delivered on behalf of each Guarantor. This Guarantee
constitutes a legal, valid and binding obligation of each
Guarantor, enforceable against each such Guarantor in accordance
with its ter
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