Exhibit 10.7
Amendment No. 6
to
Subordinated Indemnity Agreement
This Amendment No. 6 to the
Subordinated Indemnity Agreement (this “ Amendment
”) is entered into as of May 15, 2009 by and among Six
Flags Operations Inc. (as successor to Six Flags Entertainment
Corporation) (“ SFEC ”), Six Flags Theme Parks
Inc., SFOG II, Inc., SFT Holdings, Inc., Historic TW Inc.
(formerly known as Time Warner Inc.) (“ TWX ”),
Warner Bros. Entertainment Inc. (as assignee of Time Warner
Entertainment Company, L.P.), TW-SPV Co., Six Flags, Inc. (as
successor to Premier Parks Inc.), the other subsidiaries of SFEC
listed on the signature pages hereto (collectively, the
“ Subsequently Joined Subsidiaries ”) 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
April 13, 2004, Amendment No. 4 to the Subordinated
Indemnity Agreement, dated as of December 8, 2006 and
Amendment No. 5 to the Subordinated Indemnity Agreement, dated
as of April 2, 2007 (as so amended, the “ Original
Agreement ”). Capitalized terms used in this
Amendment and not otherwise defined herein shall have the meanings
ascribed to them in the Original Agreement.
WHEREAS, on the date hereof, TW-SF
LLC, a Delaware limited liability company and wholly owned
subsidiary of TWX, is making a loan (the “ Acquisition
Company Loan ”) to the Acquisition Subsidiaries to enable
the Acquisition Subsidiaries to satisfy their obligations with
respect to the Liquidity Put for the year 2009; and
WHEREAS, in connection with the
making of the Acquisition Company Loan, the parties hereto wish to
amend the terms of the Original Agreement as set forth
herein.
NOW THEREFORE, the parties agree as
follows:
1.
Section 1.1.51 of the
Original Agreement is hereby amended and restated in its entirety
to read as follows:
1.1.51
“ Required Obligations
” shall mean, collectively, (i) the Georgia Agreements
Obligations, (ii) the Texas Agreements Obligations,
(iii) the Zero Coupon Notes Obligations, (iv) the
obligations to pay any amounts required to be paid and to comply
with any obligations required to be complied with by SFTP and its
affiliates (determined after giving effect to the Merger) under the
KO Agreements (as such term is defined in the Letter Agreement,
dated as of February 9, 1997, among TWE, Boston Ventures
Limited Partnership IV, and Premier Parks Inc. relating to the KO
Agreements) and (v) each covenant, agreement and obligation to
be performed or observed by any of Six Flags, Inc., Six Flags
Operations Inc., Six Flags Theme Parks Inc. or the Acquisition
Subsidiaries under the Acquisition Company Loan and the Guarantee;
provided that the Required Obligations shall not include
(i) any obligations of the Georgia Acquisition Subsidiaries or
the Texas Acquisition Subsidiaries to purchase any
Units pursuant to the Accelerated
Put provisions under the Texas Agreements and the Georgia
Agreements, except as specifically provided in Section 4.2
hereunder; or (ii) the Excluded Obligations.
2.
Section 1.1.68 of the
Original Agreement is hereby amended and restated in its entirety
to read as follows:
1.1.68
“ Triggering Default
” shall mean (i) a “Default” as such term is
defined in the Georgia Agreements (other than a Default that
results from the failure of the TW Parties to perform their
obligations with respect to an Accelerated Put as described in
Section 4.3 hereof), (ii) a “Default” as such
term is defined in the Texas Agreements (other than a Default that
results from the failure of the TW Parties to perform their
obligations with respect to an Accelerated Put as described in
Section 4.3 hereof), (iii) an “Event of
Default” as such term is defined in the Zero Coupon Note
Indenture, other than as a result of TWE’s failure to comply
with the provisions of Section 6.2.2 hereof, (iv) a
default by any of the Holdco Parties of their covenants, agreements
or obligations hereunder (other than an immaterial default that can
be cured upon notice), (v) a failure by the Holdco Parties to
pay any amounts owed to the TW Parties hereunder or to otherwise
reimburse the TW Parties for any amounts paid by either of such
parties under the Georgia Guarantees or the Texas Guarantees,
(vi) a default by any of the Holdco Parties (or their
successors in interest) in the observance or performance of any
covenant, agreements or obligations on its part to be performed or
observed under that certain Acquisition Company Liquidity
Agreement, dated as of December 8, 2006, by and among the
Holdco Parties (or their successors in interest), the TW Parties
and the Acquisition Companies, (vii) an “Event of
Default” as such term is defined in the Acquisition Company
Loan, (viii) if Holdco, SFEC, SFTP or any Subsidiary of
SFEC that owns or operates a park (each, a “ Specified
Holdco Party ”) becomes subject to a chapter 7 bankruptcy
case or any other proceeding providing for its liquidation,
dissolution or winding up, or (ix) the appointment of a
trustee, examiner, liquidator or the like with respect to any
Specified Holdco Party or all or any substantial part of a
Specified Holdco Party’s property; provided ,
however , that (A) for purposes of the definition of
“Triggering Default” and notwithstanding any provision
to the contrary, a Triggering Default (other than due to a
Specified Default), shall be deemed to continue in perpetuity from
the date of its occurrence and the Holdco Parties shall not have
the right to cure such Triggering Default unless such Triggering
Default is cured within the shorter of (x) 90 days of the
occurrence of such Triggering Default or (y) 45 days from date
on which the TW Parties exercise their right to appoint directors
to the board of directors of GP Holdings in accordance with the
Organizational Documents of GP Holdings, in which case such
Triggering Default shall be deemed to have continued until so
cured, and (B) in no event shall the Holdco Parties be
permitted to cure a Triggering Default due to a Specified Default
without the prior written consent of the TW Parties (which consent
may be withheld in the TW Parties’ sole discretion) and no
such Triggering Default shall be deemed to be cured without such
prior written consent
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of the TW Parties; provided ,
further , that nothing in the foregoing provisos shall
impair or otherwise modify any of the rights or remedies of the TW
Parties and/or any of their respective affiliates pursuant to any
agreement or arrangement or otherwise (including, without
limitation, pursuant to this Agreement, the Subordinated Indemnity
Escrow Agreement, the Beneficial Share Assignment or the
Organizational Documents of GP Holdings).
3.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.78 as follows:
1.1.78
“ Acquisition Company
Loan ” shall mean that certain Promissory Note, dated as
of May 15, 2009, by and among the Acquisition Subsidiaries and
TW-SF LLC.
4.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.79 as follows:
1.1.79
“ Exchange Offers
” means, the Exchange Offer and the Consent Solicitation
relating to the debt securities of Holdco, filed with the
Securities and Exchange Commission on April 20, 2009, and the
Exchange Offer and the Consent Solicitation relating to the
convertible securities of Holdco, filed with the Securities and
Exchange Commission on May 6, 2009.
5.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.80 as follows:
1.1.80
“ Guarantee ”
shall mean that certain Guarantee Agreement, dated as of
May 15, 2009, by and among Six Flags Operations Inc., SFTP,
Six Flags, Inc. and TW-SF LLC.
6.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.81 as follows:
1.1.81
“ Specified Default
” shall mean a Triggering Default due to (a) the
failure of any of the Holdco Parties or the Acquisition Companies
to make any payment when such payment is due, (b) the
bankruptcy of any of the Acquisition Companies, (c) if
following May 15, 2009 (1) the Holdco Parties shall
complete the Exchange Offers, the subsequent bankruptcy of any such
Holdco Parties, or (2) the Holdco Parties shall commence a
bankruptcy case prior to September 12, 2009 and successfully
reorganize, the subsequent bankruptcy of any such Holdco Parties,
(d) any Specified Holdco Party becoming subject to a chapter 7
bankruptcy case or any other proceeding providing for its
liquidation, dissolution or winding up, or (e) the appointment
of a trustee, examiner, liquidator or the like with respect to any
Specified Holdco Party or all or any substantial part of such
Specified Holdco Party’s property.
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7.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.82 as follows:
1.1.82
“ TW Management
Election ” shall mean the appointment of directors
to the board of directors of GP Holdings by the TW Parties in
accordance with the Organizational Documents of GP
Holdings.
8.
Section 1.1
of the Original Agreement is hereby amended by adding a new
Section 1.1.83 as follows:
1.1.83
“ Warner Bros. License
Agreements ” means, collectively, the Retail License
(#8898-TOON), dated as of January 1, 1998 (as amended), by and
between Warner Bros. Consumer Products Inc. (as successor to Warner
Bros. Consumer Products Division, a division of Time Warner
Entertainment Company, L.P.) and SFTP, and the Amended and
Restated License Agreement #5854-WB/DC, dated as of April 1,
1998 (as amended), by and among Warner Bros. Consumer Products Inc.
(as successor to Warner Bros. Consumer Products Division, a
division of Time Warner Entertainment Company, L.P.), DC Comics,
Six Flags, Inc. (as successor to Premier Parks Inc.) and
SFTP.
9.
Section 6.1
of the Original Agreement is hereby amended by adding a new
Section 6.1.14 as follows:
6.1.14
Use of Intellectual
Property .
(a)
Effective
immediately upon the exercise of the TW Management Election
(without notice to, or further assent by, the Holdco Parties or any
other party), each Holdco Party hereby grants to each TW Party an
irrevocable, nonexclusive, worldwide, royalty-free license,
subject, in the case of trademarks owned by any Holdco Party, to
sufficient ri
