Exhibit 10.3
SIX FLAGS, INC.
1540 Broadway, 15th Floor
New York, NY 10036
June 13, 2009
To the Holders of Lender Claims
Referred to Below
Ladies and Gentlemen:
This letter agreement (the “
Agreement ”) sets forth certain terms and conditions
pursuant to which Six Flags, Inc. (“ SFI
”), Six Flags Operations Inc. (“ SFO ”)
and Six Flags Theme Parks Inc. (“ SFTP ”) and
certain of SFTP’s domestic subsidiaries (collectively the
“ Debtors ”) will propose their jointly filed
chapter 11 plan of reorganization (the “Plan”) on a
consensual basis with the support of the lenders (the “
Lenders ”) party to the Second Amended and Restated
Credit Agreement dated as of May 25, 2007 (as amended,
modified or otherwise supplemented from time to time, the “
Credit Agreement ”), among SFI, SFO, SFTP (as the
primary borrower), certain of SFTP’s foreign subsidiaries
party thereto, the Lenders, the agent banks party thereto and
JPMorgan Chase Bank, N.A., as Administrative Agent (in such
capacity, the “ Administrative Agent ”)
signatory hereto.
Capitalized terms not defined herein
shall have the meaning ascribed to such terms in the Restructuring
Term Sheet (as defined below).
1.
Proposed Plan of
Reorganization
Each of the Debtors proposes to
commence cases (collectively, the “ Chapter 11 Cases
”) under chapter 11 of title 11 of the United States Code
(the “ Bankruptcy Code ”) in the United States
Bankruptcy Court for the District of Delaware (the “
Bankruptcy Court ”) to be jointly administered.
As part of the Chapter 11 Cases, the Debtors intend to file a
disclosure statement and related Plan, which will provide for,
among other things, certain distributions on account of the claims
of the Lenders under the Credit Agreement (the “ Lender
Claims ”).
2.
Due Authority
Each holder of Lender Claims
identified as such on the signature page hereto (such Lenders,
the “ Participating Lenders ”) represents and
warrants to the Debtors that, as of the date hereof, (i) such
Participating Lender either (A) is the beneficial owner of the
principal amount of Lender Claims set forth below under its
signature hereto, or (B) has investment or voting discretion
with respect to the principal amount of Lender Claims set forth
below under its signature and has the power and authority to bind
the beneficial owner(s) of such Lender Claims to the terms of
this Agreement and (ii) such Participating Lender has full
power and authority to vote and consent to matters concerning such
Lender Claims and to exchange, assign and transfer such Lender
Claims.
3.
Support for a Qualified
Plan
Subject to the terms and conditions
hereof and for so long as its obligations hereunder have not
terminated as provided herein, each Participating Lender and, in
the case of the following clauses (a), (b) and (c), its
affiliates, subsidiaries, representatives, agents and employees
(a) shall support and take all reasonable actions to
facilitate the solicitation, confirmation and consummation of a
Plan incorporating the terms and conditions set forth on
Exhibit 1 annexed hereto (the “ Restructuring Term
Sheet ”) and consistent in all material respects with the
Restructuring Term Sheet, as may be modified in accordance with
Section 9 hereof, and in form and substance reasonably
satisfactory to the Supermajority Participating
Lenders(1) (a “ Qualified Plan ”),
including, as applicable, provided that such Participating Lender
has been properly solicited pursuant to Bankruptcy Code sections
1125 and 1126, timely voting its Lender Claims to accept such plan,
(b) will not object to confirmation of, or vote its Lender
Claims to reject, a Qualified Plan or otherwise take any action or
commence any proceeding to oppose or to seek any modification of a
Qualified Plan, the Disclosure Statement (as defined below) related
to a Qualified Plan, or any other reorganization documents
containing terms and conditions consistent in all material respects
with the Restructuring Term Sheet and this Agreement and
(c) will not directly or indirectly seek, solicit, support,
encourage, vote its Lender Claims for, consent to, or participate
in the negotiation or formulation of (i) any plan of
reorganization, proposal, offer, dissolution, winding up,
liquidation, reorganization, merger, consolidation, business
combination, joint venture, partnership, sale of assets or
restructuring for any of the Debtors (each, an “
Alternative Proposal ”) other than a Qualified Plan or
(ii) any other action that is inconsistent with, or that would
delay or obstruct the proposal, solicitation, confirmation, or
consummation of, a Qualified Plan. Notwithstanding the
foregoing, nothing in this Agreement shall limit any Participating
Lender’s rights under any applicable bankruptcy, insolvency
or similar proceeding (including, without limitation, appearing as
a party in interest in any matter to be adjudicated in any case
under the Bankruptcy Code concerning the Debtors) so long as the
exercise of such rights are not inconsistent with the Qualified
Plan and are not for the purpose of hindering, delaying or
preventing the consummation of the Qualified Plan.
Each Participating Lender agrees to
permit disclosure in the Disclosure Statement and any filings by
the Debtors with the Securities and Exchange Commission and any
other regulatory agency to which the Debtors may be subject of the
contents of this Agreement, including, but not limited to, the
aggregate Lender Claims held by all Lenders; provided that
(i) the Debtors shall provide a draft of such disclosure to
the Participating Lenders and a reasonable amount of time to review
such draft prior to such disclosure being made and (ii) the
Debtors shall not disclose the amount of any individual Lender
Claim, except as otherwise required by applicable law.
4.
Transfer of Lender
Claims
Each Participating Lender agrees
that so long as this Agreement has not been terminated it shall not
(a) grant any proxies to any person in connection with its
Lender Claims
(1) For this Agreement “Supermajority
Participating Lenders” shall mean the Participating Lenders
holding more than 60% of the Lender Claims bound under this
Agreement.
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to vote on the Plan except as is consistent with
the intention of the Participating Lenders as set forth in this
Agreement, or (b) sell, transfer or otherwise dispose of its
Lender Claims except in accordance with the terms of the Credit
Agreement and to a party that agrees in writing to be subject to
the terms and conditions of this Agreement as a
“Participating Lender”, which writing shall be in form
and substance reasonably satisfactory to the Administrative Agent
and the Debtors. Each Participating Lender agrees to notify
the Debtors in writing before the close of two (2) business
days after such transfer, sale or assignment of its Lender Claims
and to provide the Debtors with a signed agreement of the
transferee agreeing to be subject to the terms and conditions of
this Agreement before the close of two (2) business days after
such transfer, sale or assignment. This Agreement shall in no
way be construed to preclude any Lender from acquiring additional
Lender Claims, which Lender Claims shall become subject to the
terms hereof. This Agreement shall in no way be construed to
(x) preclude any Lender from acquiring any other claims
against the Debtors or (y) restrict any Lender with respect to
the voting of such other claims either in connection with these
Chapter 11 cases or otherwise.
5.
The Debtors’
Covenants
As long as a Termination Event (as
defined below) has not occurred, or has occurred but has been duly
waived in accordance with the terms hereof, the Debtors, subject to
Section 6(b) herein, shall use their commercially
reasonable efforts to:
(a)
file a disclosure statement in form
and substance reasonably satisfactory to the Supermajority
Participating Lenders (the “ Disclosure Statement
”) and prosecute its approval by the Bankruptcy Court within
the timeframe set forth herein;
(b)
implement all steps necessary or
appropriate to obtain from the Bankruptcy Court an order confirming
a Qualified Plan (the “ Confirmation Order ”)
within the time frame set forth herein, which Confirmation Order
shall be in form and substance reasonably satisfactory to the
Supermajority Participating Lenders;
(c)
effectuate and consummate a
Qualified Plan within the timeframe set forth herein;
and
(d)
take no action (directly or
indirectly) that is inconsistent with, or that would delay or
otherwise impede approval of the Disclosure Statement or a
Qualified Plan or the expeditious confirmation and consummation of
a Qualified Plan.
(e)
None of the materials and
information provided by or on behalf of the Debtors to the Lenders
or the Administrative Agent in connection with the restructuring
contemplated by this Agreement, when read or considered together,
contained or will contain any untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order
to prevent the statements made therein from being materially
misleading.
6.
Termination of
Obligations
(a)
The obligations of a Participating
Lender under this Agreement shall immediately terminate and be of
no further force and effect on the date that is three business days
following the occurrence of any of the events listed below (each, a
“ Termination Event ”)
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unless no later than three business days
following the Termination Event the occurrence of such Termination
Event is waived by the Participating Lenders:
(i)
the bankruptcy cases of the Debtors
shall not have been filed by June 17, 2009;
(ii)
a Qualified Plan and the Disclosure
Statement shall not have been filed by August 15,
2009;
(iii)
the Disclosure Statement shall not
have been approved by the Bankruptcy Court by October 15,
2009;
(iv)
the Bankruptcy Court shall not have
entered the Confirmation Order by December 31,
2009;
(v)
a Qualified Plan shall not have been
consummated by February 15, 2010;
(vi)
the Debtors shall take any action
inconsistent with the Debtors’ covenants set forth in
Section 5 above, including without limitation
(A) publicly announcing their intention not to pursue a
Qualified Plan or (B) proposing, accepting or filing a motion
with the Bankruptcy Court seeking approval of an Alternative
Proposal;
(vii)
(A) an examiner with expanded
powers or a trustee shall have been appointed in any of the Chapter
11 Cases, or (B) any of the Chapter 11 Cases shall have been
converted to a case under Chapter 7;
(viii)
any of the Chapter 11 Cases is
dismissed;
(ix)
a Confirmation Order is reversed on
appeal or vacated;
(x)
the Bankruptcy Court does not enter,
(i) within five business days after the Petition Date, an
interim order and, (ii) within thirty days after the Petition
Date, a final order, governing the use by the Debtors of the
Lenders’ cash collateral and granting adequate protection to
the Lenders, in form and substance reasonably satisfactory to the
Administrative Agent (collectively, the “ Cash Collateral
Orders ”);
(xi)
the occurrence of a termination
event under the Cash Collateral Orders, unless no later than three
business days following the termination event such termination
event is waived pursuant to the terms thereunder; or
(xii)
there shall have occurred any event,
development or circumstance since the Petition Date (other than any
event, claim, or circumstance relating to the Chapter 11 Cases or
the commencement thereof) that shall have resulted or could
reasonably be expected to result in a material adverse change in
the business, condition (financial or otherwise), income,
operations or prospects of the Debtors.
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(b)
Notwithstanding anything to the
contrary contained in this Agreement, (i) the Debtors may
furnish or cause to be furnished information concerning SFI and its
subsidiaries and affiliates to a party (an “ Alternative
Proposal Proponent ”) that SFI’s board of directors
(the “ Board ”) believes in good faith has
expressed an unsolicited legitimate interest in, and has the
financial wherewithal to consummate, an Alternative Proposal on
terms, including confidentiality terms, approved by the Board,
(ii) the Debtors shall deliver to the Administrative Agent any
proposal or offer for an Alternative Proposal received from an
Alternative Proposal Proponent promptly following receipt thereof
and (iii) promptly following the good faith determination by
SFI and the Board that such a proposal or offer for an Alternative
Proposal is likely to be more favorable to the Debtors’
estates and their creditors and other parties to whom the Debtors
owe fiduciary duties than is proposed under the Restructuring Term
Sheet, taking into account, among other factors, the identity of
the Alternative Proposal Proponent, the likelihood that any such
Alternative Proposal will be negotiated to finality within a
reasonable time, the litigation risks associated with obtaining
Bankruptcy Court approval of the Alternative Proposal and the
potential loss to the Debtors’ estates and their creditors
and other parties to whom the Debtors owe fiduciary duties if any
such Alternative Proposal is not consummated, the Debtors shall
notify the Participating Lenders of such determination and, unless
within ten (10) business days of such notification the
Participating Lenders have agreed to a modification of the
Restructuring Term Sheet that would provide comparable treatment to
the Debtors’ estates and their creditors and other parties to
whom the Debtors owe fiduciary duties as provided by the
Alternative Proposal, either of the Debtors or any Participating
Lender may terminate its obligations under this Agreement by
written notice to the Administrative Agent. Nothing in this
Section 6(b) shall obligate any Participating Lender to
agree to any Alternative Proposal or to any modification of the
Restructuring Term Sheet.
(c)
Upon termination of this Agreement,
each Participating Lender shall be released from its commitments,
undertakings and agreements under or related to this Agreement and
shall have the rights and remedies that it would have had and shall
be entitled to take all actions that it would have been entitled to
take had it not entered into this Agreement. Upon the
occurrence of any termination of this Agreement any and all votes
delivered by a Participating Lender prior to such termination shall
be deemed, for all purposes, to be null and void from the first
instance and shall not be considered or otherwise used in any
manner by the Debtors.
7.
Specific
Performance
It is understood and agreed by the
parties that money damages would not be a sufficient remedy for any
breach of this Agreement by any party and each non-breaching party
shall be entitled to seek specific performance and injunctive or
other equitable relief, including attorneys fees and costs, as a
remedy of any such breach, and each party agrees to waive any
requirement for the securing or posting of a bond in connection
with such remedy.
8.
Prior Negotiations
This Agreement supersedes all prior
negotiations, and documents reflecting such prior negotiations,
between and among the Debtors and the Lenders (and their respective
advisors), with respect to the subject matter hereof.
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9.
Amendments
No amendment, modification, waiver
or other supplement of the terms of this Agreement or the
Restructuring Term Sheet shall be valid unless such amendment,
modification, waiver or other supplement is in writing and has been
signed by the Debtors and the Supermajority Participating Lenders,
provided , however , (a) the written consent of
each Participating Lender shall be required for any amendment,
modification, waiver or other supplement of this Agreement or the
Restructuring Term Sheet, as the case may be, that (i) effects
non-ratable or otherwise disparate treatment of funded Lender
Claims, (ii) amends or modifies in any way the definition of
Conflicted Lender (as defined below) as used in this Agreement or
(iii) effects a material and adverse change to the treatment
of the Lender Claims from that reflected in the Restructuring Term
Sheet as of the date hereof and (b) a Conflicted Lender shall
have no vote on any matter herein and its Lender Claims will not
count for any purposes in calculating Supermajority Participating
Lenders or whether all Participating Lenders have consented as
required by the preceding clause (a).
“ Conflicted Lender
” shall be any Lender that, as of any date of determination,
holds nominal claims against (i) SFI, and/or (ii) SFO
that (determined on a percentage basis of the total bond claims
against SFI or SFO, as applicable), individually or in the
aggregate, exceed 50% of its nominal Lender Claims (determined on a
percentage basis of the total Lender Claims of all Lenders).
By way of example, if a Lender held 30% of the aggregate Lender
Claims, it would be a Conflicted Lender if it held more than 15% of
either the bond claims against SFI or SFO or the combined bond
claims against SFI and SFO.
For the purposes hereof, immaterial
changes to the Restructuring Term Sheet shall not constitute a
modification or amendment thereof or of this Agreement.
10.
Independent
Analysis
Each Participating Lender hereby
confirms that it has made its own decision to execute this
Agreement based upon its own independent assessment of documents
and information available to it, as it deemed
appropriate.
11.
Governing Law
This Agreement shall be governed by,
and construed in accordance with, the internal laws of the State of
New York. By its execution and delivery of this Agreement,
each of the parties hereto hereby irrevocably and unconditionally
agrees for itself that any legal action, suit or proceeding against
it with respect to any matter under or arising out of or in
connection with this Agreement or for recognition or enforcement of
any judgment rendered in any such action, suit or proceeding, may
be brought in either a state or federal court of competent
jurisdiction in the State of New York. By execution and
delivery of this Agreement, each of the parties hereto hereby
irrevocably accepts and submits itself to the nonexclusive
jurisdiction of each such court, generally and unconditionally,
with respect to any such action, suit or proceeding.
Notwithstanding the foregoing consent to jurisdiction in either a
state or federal court of competent jurisdiction in the State of
New York, upon the commencement of the Chapter 11 Cases, each of
the parties hereto hereby agrees that, if the petitions have been
filed
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and the Chapter 11 Cases are pending, the
Bankruptcy Court shall have exclusive jurisdiction of all matters
arising out of or in connection with this Agreement.
12.
Effective Date
This Agreement shall become
effective when the Debtors have received counterparts hereof duly
executed and delivered by the Debtors and each member of the
steering committee of Lenders party to the Credit Agreement (the
“ Effective Date ”).
Upon the Effective Date, the
Restructuring Term Sheet shall be deemed effective for purposes of
this Agreement and thereafter the terms and conditions therein may
only be amended, modified, waived or otherwise supplemented as set
forth in Section 9 above.
13.
Third-Party
Beneficiary
This Agreement is intended for the
benefit of the parties hereto and no other person shall have any
rights hereunder.
14.
Counterparts
This Agreement may be executed in
several counterparts, each of which shall be deemed to be an
original, and all of which together shall be deemed to be one and
the same agreement. Execution copies of this agreement may be
delivered by facsimile or otherwise, which shall be deemed to be an
original for the purposes of this paragraph.
15.
Headings
The section headings of this
Agreement are for convenience of reference only and shall not, for
any purpose, be deemed a part of this Agreement.
16.
Acknowledgment
This Agreement is not and shall not
be deemed to be a solicitation of consents to the Plan. The
acceptance of the Lenders will not be solicited until the Lenders
have received the Disclosure Statement and related ballot, as
approved by the Bankruptcy Court.
17.
Settlement
Discussions
This Agreement and the Restructuring
Term Sheet are part of a proposed settlement of matters that could
otherwise be the subject of litigation among the parties hereto.
Nothing herein shall be deemed an admission of any kind.
Pursuant to Federal Rule of Evidence 408 and any applicable
state rules of evidence, this Agreement and all negotiations
relating thereto shall not be admissible into evidence in any
proceeding other than a proceeding to enforce the terms of this
Agreement.
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18.
No Waiver of Participation and
Preservation of Rights
Except as expressly provided in this
Agreement, nothing herein is intended to, does or shall be deemed
in any manner to waive, limit, impair or restrict the ability of
each of the Lenders to protect and preserve its rights, remedies
and interests, including, but not limited to, its claims against
any of the Debtors, any liens or security interests it may have in
any assets of any of the Debtors, or its full participation in the
Chapter 11 Cases. Without limiting the foregoing sentence in
any way, if the transactions contemplated by this Agreement or
otherwise set forth in a Qualified Plan are not consummated as
provided herein, if a Termination Event occurs, or if
