Exhibit 10.6
Amendment No. 5
to
Subordinated Indemnity Agreement
This Amendment No. 5 to the
Subordinated Indemnity Agreement (this “ Amendment
”) is entered into as of April 2, 2007 by and among Six
Flags Operations Inc. (as successor to Six Flags Entertainment
Corporation), Six Flags Theme Parks Inc., SFOG II, Inc., SFT
Holdings, Inc., Time Warner Inc., Time Warner Entertainment
Company, L.P., TW-SPV Co., Six Flags, Inc. (as successor to
Premier Parks Inc.) and GP Holdings Inc., and amends in certain
respects the Subordinated Indemnity Agreement, dated as of
April 1, 1998, by and among the parties (or their predecessors
in interest), as amended by Amendment No. 1 to Subordinated
Indemnity Agreement, dated as of November 5, 1999, Amendment
No. 2 to the Subordinated Indemnity Agreement, dated as of
June 12, 2002, Amendment No. 3 to the Subordinated
Indemnity Agreement, dated as of October 13, 2004 and
Amendment No. 4 to the Subordinated Indemnity Agreement, dated
as of December 8, 2006 (as so amended, the “ Original
Agreement ”).
The parties agree as
follows:
1.
Capitalized terms
used in this Amendment and not otherwise defined herein shall have
the meanings ascribed to them in the Original
Agreement.
2.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.73 as follows:
“ Affiliate Loans
” shall mean, collectively, “Affiliate Loans” as
defined in the Georgia Partnership Agreement and the Texas
Partnership Agreement.
3.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.74 as follows:
“ Management Fees
” shall mean, collectively, “Management Fees” as
defined in the Georgia Partnership Agreement and the Texas
Partnership Agreement.
4.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.75 as follows:
“ Material Debt
Instrument ” shall mean any agreement or instrument to
which a SF Party is a party from time to time in the capacity of a
borrower or guarantor and which has obligations outstanding or
unused commitments for borrowed money, in each case, in an
aggregate amount greater than $50 million.
5.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.76 as follows:
“ SFOT ” shall
mean Six Flags Over Texas, Inc.
6.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.77 as follows:
“ SF Parties ”
shall mean, collectively, Holdco, Six Flags Operations Inc. (as
successor to SFEC), SFTP, SFOG II, GP Holdings, Six Flags Over
Georgia II, L.P., SFT Holdings, SFOT and Texas Flags,
Ltd.
7.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.77 as follows:
“ Triggering Event
” shall mean the occurrence of one or more of the following
events: (i) any TW Party shall be obligated to pay any
“Obligation” under and as defined in any TW Guarantee,
(ii) a Triggering Default, (iii) any SF Party shall be
the subject of any bankruptcy, insolvency or similar proceeding,
(iv) any event, occurrence, condition or circumstance which,
individually or in the aggregate, after notice or lapse of time or
both, will result in or has resulted in a default or an event of
default (or like event or occurrence) under any Material Debt
Instrument the result of which, following the expiration of any
applicable grace period, would permit the lenders or holders of the
debt thereunder (or an agent or trustee on behalf of such lenders
or holders) to declare all amounts payable under such Material Debt
Instrument to be immediately due and payable.
8.
Section 6.1
of the Original Agreement is hereby amended by adding a new
Section 6.1.13 as follows:
6.1.13
Affiliate Loans and Management
Fees .
(a)
Each SF Party agrees not to assign,
transfer, encumber or pledge any interest that it may have in any
Affiliate Loans or any accrued and unpaid Management Fees payable
to it, and has not transferred, assigned, encumbered or pledged, in
whole or in part (except to SFOG II and SFOT), any interest it may
have in any Affiliate Loans or such Management Fees payable to
it.
(b)
The parties hereto hereby further
agree that except during the continuance of a Triggering Event,
each SF Party shall be entitled to pay over and to receive in the
ordinary course of business any Management Fees due and owing and
any payments on account of any Affiliate Loans due and owing;
provided that upon the occurrence and during the continuance
of a Triggering Event, each SF Party hereby agrees that no payments
shall be made or received with respect to any Management Fees or
Affiliate Loans then outstanding, unless the entirety thereof is
immediately turned over to TWX as representative of the TW Parties
(in such capacity, the “ TWX Representative ”)
as collateral hereunder. In furtherance of the foregoing, any such
obligations owing to an SF Party shall be subordinated to the prior
payment in full of all amounts owing to the TW Parties under this
Agreement, and upon the requ
