Exhibit 10.11
FIRST AMENDMENT AND WAIVER
TO CREDIT AGREEMENT
THIS FIRST AMENDMENT AND WAIVER
TO CREDIT AGREEMENT (this
“ Amendment ”), is made and entered into as of
October 9, 2006 (the “ Effective Date ”), by and
among PALACE ENTERTAINMENT HOLDINGS, INC. (“
Holdings ”), FESTIVAL FUN PARKS, LLC , the
other Borrowers signatory thereto (sometimes collectively referred
to herein as the “ Borrowers ” and individually
as a “ Borrower ”), the other Credit Parties
signatory thereto, the Lenders party to the Credit Agreement, and
GENERAL ELECTRIC CAPITAL CORPORATION , a Delaware
corporation, for itself, as a Lender, and as Agent for the Lenders
parties from time to time to the Credit Agreement described below
(“ Agent ”).
W
I T N
E S S E T
H:
WHEREAS , Holdings, the Borrowers, the Lenders and the
Agent are parties to that certain Credit Agreement, dated as of
April 12, 2006 (the “ Credit Agreement ”;
capitalized terms used herein and not otherwise defined herein
shall have the meanings given such terms in the Credit Agreement),
pursuant to which the Lenders have agreed to make certain loans and
other extensions of credit to Borrowers upon the terms and
conditions set forth therein; and
WHEREAS , Holdings, Borrowers, the Lenders and the Agent
desire to make certain amendments to the Credit Agreement in
accordance with, and subject to the terms and conditions set forth
in, this Amendment.
NOW, THEREFORE
, in consideration of the premises,
the covenants and agreements contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto do hereby agree, subject to
Section 6 , as follows.
1.
Amendments to the Credit
Agreement . Subject to the terms
and conditions of this Amendment, the Credit Agreement shall be
amended as follows:
(a)
Section 8.1(c) of the Credit Agreement shall be deleted in its
entirety and shall be replaced in its entirety by the
following:
(c)
Holdings or any Borrower fails or neglects to perform, keep or
observe any of the provisions of Sections 1.6 or 4.1 or any
provisions set forth in Annex C or E , and the same shall
remain unremedied for three (3) Business Days or more.
(b)
Section (a) of Annex E to the Credit Agreement shall be
deleted in its entirety and shall be replaced in its entirety by
the following:
(a)
Monthly Financials . To Agent, within forty-five (45)
days after the end of the Fiscal Months for July and August in each
year, financial information regarding Holdings and its
Subsidiaries, certified by the Chief Financial Officer of Holdings,
consisting of consolidated (i) unaudited balance sheets as of the
close of such Fiscal Month and the related unaudited statements of
income and cash flows for that portion of the Fiscal Year ending as
of the close of such Fiscal Month and (ii) unaudited statements of
income and cash flows for such Fiscal Month, setting forth in
comparative form the unaudited figures for the months of July and
August in the prior year and the unaudited figures contained in the
Projections for such Fiscal Year, all prepared based on GAAP
fundamentals and consistent with past practices of Holdings and its
Subsidiaries but not requiring standard quarterly or year-end
adjustments. Such financial information shall be accompanied
by the certification of the Chief Financial Officer of Holdings to
Agent and Lenders that (i) such financial information has been
prepared pursuant to the normal monthly reporting procedures of
Holdings in accordance with past practices consistently applied and
fairly represents in all material respects the financial position
and results of operations of Holdings and its Subsidiaries, on a
consolidated basis, in each case as at the end of such Fiscal Month
and for that portion of the Fiscal Year then ended on a basis
consistent with the prior year and (ii) any other information
presented is accurate in all material respects and that there was
no Default or Event of Default in existence as of such time or, if
a Default or Event of Default has occurred and is continuing,
describing the nature thereof and all efforts undertaken to cure
such Default or Event of Default.
(c)
Sections (b) and (d) of Annex E and Sections (b) and (c) of
Annex G to the Credit Agreement shall be amended by deleting
each reference to “Borrowers and their Subsidiaries”
and replacing each such reference with “Holdings and its
Subsidiaries.”
(d)
Sections (b) and (d) of Annex E shall be amended by deleting
each reference to “Borrower Representative” and
replacing such reference with “Holdings.”
(e)
Section (b) of Annex E is further amended by deleting each
reference to “Borrower” and “Borrowers” in
the last sentence of such Section and replacing each such reference
with “Holdings.”
2.
Waiver . The Borrowers have
not complied with Sections (a) and (b) of Annex E of the
Credit Agreement
