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Palace Entertainment Holdings, Inc.
·
8-K
Oct 3, 5:22 PM ET
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Palace Entertainment Holdings, Inc. 8-K
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Contents
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1. Consent. Subject to the terms and conditions of this Agreement, the Agent and the undersigned Lender hereby consent to the Change of Control (as defined in the Existing Credit Agreement) arising from the sale by the Sponsor (as defined in the Existing Credit Agreement) of the Stock of Holdings to Centaur (as defined below) (such sale referred to as the “Sale Transaction”) and waive any Event of Default that would otherwise occur as a result of such Change of Control; provided that the foregoing consent and waiver shall be void ab initio and of no force and effect if immediately after giving effect to the Sale Transaction, (i) Holdings is not the direct or indirect parent company of the other Borrowers and the other Credit Parties, (ii) Holdings and its Subsidiaries have changed any of their respective legal names or their jurisdictions of incorporation, have dissolved or otherwise ceased to maintain their legal existence or have merged with any other Person, or any Change of Control (as such term is defined in the Amended Credit Agreement) will occur.
2. Amendments to the Credit Agreement. Subject to the terms and conditions of this Amendment, the Credit Agreement shall be amended as follows:
(a) Amendments to Annex A of the Credit Agreement.
(i) The definition of “EBITDA” is hereby deleted in its entirety and replaced in its entirety with the following:
(b) Amendment to Annex G of the Credit Agreement.
(c) Amendment to Section 6.3(a) of the Credit Agreement. Section 6.3(a) of the Credit Agreement is hereby amended by changing the reference in clause (xi) thereof to refer to clause (xii) and by adding new clause (xi) to read in its entirety as follows:
(d) Amendment to Section 6.3(a) of the Credit Agreement. Section 6.3(a) of the Credit Agreement is hereby further amended by deleting clause (vii)(A) thereof in its entirety and substituting in lieu thereof the following new clause (vii)(A) to read in its entirety as follows:
(e) Amendments to Section 6.13 of the Credit Agreement.
Section 6.13 of the Credit Agreement is hereby amended by adding new clauses (k) and (l) thereto to read in its entirety as follows:
(k) regularly scheduled cash interest payments on the Sponsor Loan, provided that (i) the sum of the total amount of all such cash interest payments in respect of the Sponsor Loan during any period of twelve consecutive Fiscal Months plus the total amount of cash interest paid on any Senior Unsecured Debt during any such period of twelve consecutive Fiscal Months, shall not exceed an amount equal to the Sponsor Loan Interest Cap, (ii) no Default or Event of Default exists or would result therefrom, and (iii) such payments are at all times subject to the Sponsor Subordination Agreement, and (l) dividends and distributions by Borrowers to Holdings, provided that the amount of such dividends and distributions do not at any time exceed the amount of regularly scheduled cash interest payments on the Sponsor Loan that are then due under the Sponsor Subordinated Note and that are expressly permitted to be paid under Section 6.13 and the Sponsor Subordination Agreement.
(f) Amendment to Section 6.18(a) of the Credit Agreement.
Section 6.18(a) is hereby amended by adding new sentence at the end thereof to read in its entirety as follows:
In addition, no Credit Party shall change, restate, supplement, amend or otherwise modify any of the terms or provisions of the Sponsor Subordinated Note after the initial date of issuance thereof if the effect of such amendment would be to (i) increase the cash interest rate charged thereunder, or change the redemption, prepayment or repayment provisions of the Sponsor Loan or the Sponsor Subordinated Note (other than to extend the dates therefor or to reduce the interest or principal payable in connection therewith), (ii) grant any security or collateral to secure payment of the Sponsor Loan, or (iii) change or amend any other terms
or provisions of the Sponsor Loan or the Sponsor Subordinated Note if such change or amendment, individually or in the aggregate, would materially increase the obligations of the Credit Party thereunder or confer additional material rights on the lenders under the Sponsor Loan in a manner adverse to any Credit Party, Agent or any Lender.
3. No Other Amendments. Except for the consent and amendments expressly set forth and referred to in Section 1 and 2 hereof, the Credit Agreement shall remain unchanged and in full force and effect. Nothing in this Amendment is intended or shall be construed to be a waiver or novation of any Obligations or any part of the Credit Agreement or any of the other Loan Documents or to affect, modify or impair the continuity or perfection of the Agent’s Liens under the Collateral Documents.
4. Representations and Warranties. To induce the Lenders and the Agent to enter into this Amendment, Holdings and each of the Borrowers hereby warrants, represents and covenants to and with to the Lenders and the Agent that: (a) Holdings and each of the Borrowers has the corporate or organizational power and authority (i) to enter into this Amendment and (ii) to do all acts and things as are required or contemplated hereunder to be done, observed and performed by it; (b) this Amendment has been duly authorized, executed and delivered by Holdings and each Borrower; (c) after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing as of this date; and (d) after giving effect to this Amendment, all of the representations and warranties made by the Credit Parties in the Credit Agreement are true and correct in all material respects on and as of the date of this Amendment (except to the extent that any such representations or warranties expressly referred to a specific prior date and except for changes therein expressly permitted or expressly contemplated by the Credit Agreement or the other Loan Documents). Any breach in any material respect by Holdings or any Borrower of any of its representations, warranties and covenants contained in this Section 4 shall be an Event of Default under the Credit Agreement.
5. Ratification and Acknowledgment. Each of the Holdings and Borrowers hereby ratifies and reaffirms each and every term, covenant and condition set forth in the Credit Agreement and all other Loan Documents executed or delivered by such Credit Party.
6. Waiver, Release and Disclaimer. To induce the Lenders and the Agent to enter into this Amendment, each of Holdings and the Borrowers hereby waives and releases any claim, defense, demand, action or suit of any kind or nature whatsoever against the Lenders or the Agent or their respective Affiliates, and each such Persons’ respective officers, directors, partners, trustees, shareholders, agents, attorneys, advisors and employees, arising on or prior to the date of this Amendment in connection with the Credit Agreement or any of the other Loan Documents, or any of the transactions contemplated thereunder, except that this Section 5 shall not waive or release any of the Lenders’ or Agent’s contractual obligations under the Credit Agreement or any of the other Loan Documents.
7. Conditions to Effectiveness. The consent and amendments of the Credit Agreement set forth in Section 1 and 2 of this Amendment shall not become effective unless and until the Agent has received (a) one or more counterparts of this Amendment, duly executed, completed and delivered by Holdings, each Borrower, the other Credit Parties and GE Capital, as Agent and Lender, (b) Agent has received a copy of the final stock purchase agreement relating to the Sale Transaction, together with all other agreements, documents and instruments relating to the Sale Transaction, each in form and substance satisfactory to Agent, (c) Agent has received payment in immediately available funds of all fees due and payable under that certain Fee Letter dated the date hereof between GE Capital, Holdings and Borrower Representative, and (d) the Sale Transaction has been consummated in accordance with the stock purchase agreement relating thereto in the form previously provided to GE Capital.
8. Reimbursement of Expenses. The Borrowers hereby jointly and severally agree to reimburse the Agent on demand for all reasonable fees and reasonable out-of-pocket costs and expenses (including without limitation the reasonable and actual fees and expenses of its counsel) incurred by the Agent in connection with the negotiation, documentation and consummation of this Amendment and the other documents executed in connection herewith and the transactions contemplated hereby.
9. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO BE PERFORMED ENTIRELY WITHIN SAID STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
10. Severability of Provisions. Any provision of this Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction. To the extent permitted by applicable law, each Credit Party hereby waives any provision of law that renders any provision hereof prohibited or unenforceable in any respect.
11. Counterparts. This Amendment may be executed in any number of several counterparts, all of which shall be deemed to constitute but one original and shall be binding upon all parties, their successors and permitted assigns.
12. Entire Agreement. The Credit Agreement as amended through this Amendment embodies the entire agreement between the parties hereto relating to the subject matter thereof and supersedes all prior agreements, representations and understandings, if any, relating to the subject matter thereof.
13. No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Amendment. In the event an ambiguity or question of intent or interpretation arises, this Amendment shall be construed as if drafted jointly by the parties hereto
and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Amendment.
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