CEDAR FAIR, L.P.
WITHDRAWAL AGREEMENT OF CF PARTNERS
This Agreement, dated as of June 20,1997, by and between
Cedar Fair Management Company, an Ohio corporation (as Managing
General Partner of the Partnership and as attorney-in-fact of the
limited partners of the Partnership) ("CFMC"), and CF Partners, a
Delaware general partnership (as Special General Partner of the
Partnership) ("CFP");
WITNESSETH:
WHEREAS, CFP was admitted and substituted as successor
Special General Partner of Cedar Fair, L.P. (the "Partnership")
as of December 31, 1988 in accordance with the terms and
provisions of the Third Amended and Restated Agreement of Limited
Partnership of the Partnership dated as of April 21, 1987, as
amended by Amendment No. 1 to the Third Amended and Restated
Agreement of Limited Partnership dated as of December 31, 1988
and by Amendment No. 2 to the Third Amended and Restated
Agreement of Limited Partnership dated as of December 31, 1992
(as amended, the "Third Restated Agreement"); and
WHEREAS, in view of the adoption of the "check-the-box"
regulations by the Internal Revenue Service and the financial
circumstances of CFMC and the Partnership, the Partnership no
longer requires the service of a special general partner in order
to continue to qualify as a limited partnership for federal
income tax purposes; and
WHEREAS, prior to May 30, 1997, CFP informed CFMC of its
intention to withdraw as the Special General Partner of the
Partnership; and
WHEREAS, CFMC has determined that the Third Restated
Agreement should be amended in accordance with Section 15.1(c)(i)
thereof to effect the withdrawal of CFP as the Special General
Partner, to appoint CFMC as the successor special general partner
of the Partnership (thereby merging the general partner
interests), and to reflect certain other changes that in the sole
discretion of CFMC do not affect the Limited Partners adversely
in any material respect; and
WHEREAS, CFMC is executing this agreement on behalf of the
Limited Partners by virtue of the powers of attorney granted to
CFMC pursuant to Section 1.4(a)(i)(B) of the Third Restated
Agreement;
NOW, THEREFORE, the parties agree for their mutual benefit
and for the benefit of their respective successors and assigns as
follows:
1. Certain capitalized terms used but not defined herein
shall have the meanings assigned to them in the Third Restated
Agreement. This Amendment incorporates by reference the general
provisions of Article XVI of the Third Restated Agreement.
2. CFP hereby confirms notice to the Partnership and to
CFMC that it has determined to withdraw as Special General
Partner of the Partnership effective as of the date and time set
forth in paragraph 3 of this Agreement, and CFMC hereby accepts
such notice as being sufficient for the purpose hereof.
3. CFP shall be deemed to have withdrawn as the Special
General Partner of the Partnership effective as of 12:01 a.m.,
Eastern time, on July 1, 1997.
4. If after the withdrawal of CFP as Special General
Partner of the Partnership any actions or approvals are required
to be taken by a person acting in the capacity of the special
general partner of the Partnership, CFMC hereby appoints itself
(namely, CFMC) as successor special general partner of the
Partnership, with no change in its Percentage Interest, its
Annual Fee, or its Incentive Fee, and by such appointment all
right, title, and interest of the special general partner of the
Partnership shall be deemed merged into and become the managing
general partner interest in the Partnership.
5. On July 1, 1997, CFMC shall cause the Partnership to
pay CFP the sum of $400,000, which shall represent the balance of
the Annual Fee otherwise payable to CFP for serving as Special
General Partner for the full year 1997. The taxable income of
the Partnership allocable to CFP for 1997 shall be determined by
the Partnership in the same manner, using the same principles, as
was the case for 1996.
6. CFMC and CFP acknowledge and agree that Section 13.2(d)
applies to the withdrawal of CFP as Special General Partner
hereunder. Accordingly, CFMC and CFP further agree as follows:
(a) CFMC shall cause the Partnership to distribute to CFP,
on or before December 31, 1997, the amount, if any, that may be
so payable pursuant to Section 13.2(d) of the Third Restated
Agreement. CFMC and CFP acknowledge and agree that at December
31, 1996 (i) the balance in CFP's Unadjusted Capital Account was
$(627,483) and (ii) the balance in CFP's Capital Account
(following the adjustment in its Capital Account in accordance
with Section 4.5(d)(iii)), was $2,306,525, and that (A) no
distribution to CFP would have been required under Section
13.2(d)(i) and (B) no cash contribution to the Partnership would
have been required under Section 13.2(d)(ii), if the withdrawal
had been effected as of 11:59 p.m. on December 31, 1996.
(b) For the purposes hereof, CFP's Unadjusted Capital
Account and its Capital Account as of 12:01 a.m. on July 1, 1997,
the effective time of CFP's withdrawal as Special General
Partner, shall be determined in the same manner, applying the
same principles, as was done in determining the amounts in these
accounts as of December 31, 1996, as aforesaid.
(c) CFMC agrees to provide to CFP its computation of CFP's
Unadjusted Capital Account and its Capital Account as of the
effective time of CFP's withdrawal at least 30 days prior to the
Partnership filing its federal information return on Form 1065
for the period that includes July 1, 1997, but in any event not
later than March 15, 1998. CFP shall have 15 days after
receiving such computation to object thereto in writing to CFMC,
and CFMC agrees to consider in good faith any such objection.
(d) CFMC and CFP hereby acknowledge, agree, and stipulate
that the amounts stated as being the Capital Account on the
Schedule K-1s heretofore and hereafter distributed to CFP by the
Partnership represent CFP's adjusted capital account as
calculated solely as an internal partnership matter for the
Partnership under Section 4.5(a)(i) of the Third Restated
Agreement and not for federal income tax accounting purposes.
(e) CFMC and CFP hereby acknowledge, agree and stipulate
that the Section 13.2(d)(i) deemed distribution and penalty
occurring upon CFP's withdrawal and settlement of its Capital
Account relate to financial and book value accounting and do not
for income tax accounting purposes affect either CFP's income tax
basis in the Partnership or CFP's income, gain, loss, or
deductions attributable to its interest in the Partnership for
1997 or other years.
7. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged,
(a) CFMC (on behalf of the Partnership, itself and its
shareholders) does hereby release, acquit, and forever discharge
CFP and its partners, and
(b) CFP (on behalf of itself and its partners) does hereby
release, acquit, and forever discharge CFMC,from any and all
claims, demands, charges, debts, suits, actions, judgments,
grievances, and causes of action of any nature whatsoever of any
kind (including attorneys fees), whether known or unknown, fixed
or contingent, in law or in equity, that it now has, has ever
had, or may have in the future that have arisen or may arise out
of, or are in any manner connected with,
(A) the services and withdrawal of CFP as Special General
Partner of the Partnership; or
(B) the services of CFMC as Managing General Partner of
the Partnership, respectively;
except for their respective obligations set forth in this
Agreement.
8. CFMC, on behalf of itself and the Partnership,
acknowledges, agrees, and confirms that all provisions of the
Third Restated Agreement providing for indemnification of the
Special General Partner, including specifically the provisions of
Section 6.9, shall remain in full force and effect for the
benefit of CFP and its partners (and their successors and
assigns), notwithstanding CFP's withdrawal as Special General
Partner, as to all past, current, or future matters covered
thereby.
9. Except as provided in Sections 5, 6, 8 or 11 of this
Agreement, all provisions of the Third Restated Agreement
providing for the payment of a fee or disbursement of the Special
General Partner, or its successor in that capacity, are hereby
amended to provide that no fees or disbursements shall be paid to
the Special General Partner for services performed in that
capacity. Furthermore, the Third Restated Agreement is amended
hereby effective July 1, 1997 upon the withdrawal of CFP as
Special General Partner in the manner set forth in Schedule A
hereto.
10. In recognition of the financial capabilities of CFMC,
as Managing General Partner of the Partnership, as well as the
Partnership's demonstrated ability to meet its obligations to its
creditors, all provisions of the Third Restated Agreement
requiring, directly or indirectly, that the Special General
Partner maintain a specified fair market net worth are hereby
deleted.
11. CFMC agrees to cause the Partnership to reimburse the
reasonable legal fees of CFP incurred in connection with its
withdrawal as Special General Partner of the Partnership,
including the preparation and implementation of this Agreement,
and the liquidation and termination of CFP. CFP believes that
based upon current facts and circumstances that legal fees will
not exceed $30,000, and agrees to use reasonable efforts to
insure that legal fees do not exceed $30,000 to the extent that
it is able to do so.
12. CFMC hereby represents and warrants that it has
received an Opinion of Counsel that the withdrawal of CFP as
Special General Partner, and the selection and admission of CFMC
as successor special general partner, will not result in the loss
of limited liability of any Limited Partner or cause the
Partnership to be treated as an association taxable as a
corporation for federal income tax purposes.
13. The provisions of this Agreement may not be amended or
modified without the express written consent of both CFP and
CFMC.
14. This Agreement, including the amendments set forth in
Schedule A hereto, is for the benefit of the Partnership and CFP
and is binding upon and shall inure to the benefit of the parties
hereto and their heirs, executors, administrators, successors,
legal representatives, and assigns.
15. By signing this Agreement on behalf of CFP, the
partners of CFP consent and agree to the provisions hereof and
acknowledge that they are beneficiaries of and are bound by such
provisions.
16. CFMC (on behalf of the Partnership and itself)
acknowledges and agrees that the term "CFP and its partners" in
Section 7 and 8 of this Agreement refers to and includes the CFP
partners signing this Agreement and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, a deceased
CFP partner.
IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first above written.
CEDAR FAIR MANAGEMENT COMPANY
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
CF PARTNERS
By: The trust created by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇. during his lifetime, now
irrevocable by reason of his death,
under an original Trust Agreement dated
as of November 16, 1972, and amended from
time to time thereafter, including most
recently by the Restatement of Trust
Agreement dated July 26, 1987
By: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Co-Trustee
And: ▇▇▇▇▇ ▇. Book
Name: ▇▇▇▇▇ ▇. Book
Title: Co-Trustee
ESTATE OF ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Executrix
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Executrix
Title: General Partner
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
General Partner
SCHEDULE A
CEDAR FAIR, L.P.
AMENDMENT NO. 3 TO THIRD AMENDED
AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
Effective July 1, 1997
1. Section 1.4(a)(ii) shall be amended to delete
language requiring approval of the Special General Partner so as
to read:
(ii) to execute, swear to and acknowledge all
ballots, consents, approvals, waivers,
certificates and other instruments
appropriate or necessary, in the sole
discretion of the Managing General Partner or the
Liquidator, to make, evidence, give, confirm or
ratify any vote, consent, approval,
agreement or other action which is made or given
by the Partners hereunder, which is consistent
with the terms of this Agreement or which is
appropriate or necessary, in the sole
discretion of the Managing General Partner or
the Liquidator, to effectuate the terms or
intent of this Agreement; provided that, when
Section 15.3 or 15.9 or any other provision of
this Agreement establishes a percentage
of the Limited Partners required to take any
action, the Managing General Partner or the
Liquidator may exercise the power of attorney made
in this Section 1.4(a)(ii) only after the
necessary vote, consent or approval by a Majority
Interest or other required percentage, as
the case may be; and
2. The definition of "Agreement" in Article II shall
be amended to read: "'Agreement' means the Third Amended and
Restated Agreement of Limited Partnership of the Partnership, as
amended by Amendment No. 1 thereto, as amended by Amendment No. 2
thereto, and as amended by Amendment No. 3 thereto."
3. The definition of "Annual Fee" in Article II shall
be amended to delete reference to Special General Partner so as
to read: "'Annual Fee' for any Fiscal Period means, in the case
of the Managing General Partner, a fee equal to 0.25% of the Net
Revenues for such Fiscal Period."
4. The definition of "General Partner" in Article II
shall be amended to delete reference to Special General Partner
so as to read: "'General Partner' means the Managing General
Partner."
5. The definition of "Percentage Interest" in Article
II shall be amended to delete reference to Special General
Partner so as to read: "'Percentage Interest' means (a) as to the
Managing General Partner, 0.5%, and (b) as to any Limited Partner
or Assignee, the product of (i) 99.5% multiplied by (ii) a
fraction, the numerator of which is the number of such Limited
Partner's or Assignee's Units and the denominator of which is the
total number of Units Outstanding as of the date of
determination."
6. Section 4.1 shall be amended to read as follows:
4.1 General Partner. The General Partner shall
not be required to contribute to the capital of the Partnership
except (a) as may be necessary to pay liabilities of the
Partnership for which provisions cannot otherwise be made or (b)
as otherwise required pursuant to section 13.1(c), 14.2(b) or
14.8. The General Partner shall at all times while serving in
such capacities retain a Percentage Interest entitling it, except
as otherwise provided in Article V, to at least a 0.05%
participation in the Partnership's income, gains, losses,
deductions and credits, but only for so long as the General
Partner continues in such capacity.
7. Section 5.1(i) shall be deleted.
8. Section 5.3(b)(i) shall be deleted.
9. Section 5.3(b)(ii) shall be amended to read as
follows: (ii) If the Record Date set for a distribution is after
June 30, 1990, then the distribution of Available Cash for such
calendar quarter shall be divided among the Partners, in
accordance with their respective Percentage Interests.
10. The second sentence of Section 6.1(a) shall be
amended to delete reference to Special General Partner so as to
read: "Except as otherwise expressly provided in this Agreement,
all management powers over the business and affairs of the
Partnership shall be exclusively vested in the Managing General
Partner, and no Limited Partner shall have any right of control
or management power over the business and affairs of the
Partnership except in their capacities as officers or directors
of the Managing General Partner."
11. The third sentence of Section 6.1(c) shall be
amended to delete reference to Special General Partner so as to
read: "Each Operating Partnership shall be composed of the
Managing General Partner as managing general partner thereof,
having a 0.5% interest in the Operating Partnership, and the
Partnership as the sole limited partner thereof having a 99.5%
interest in the Operating Partnership."
12. The final sentence of Section 6.1(c) shall be
amended to delete reference to Special General Partner so as to
read: "The Managing General Partner shall execute such agreement
and other certificates, instruments and documents."
13. Section 6.1(f) shall be deleted.
14. Section 6.5(c) shall be deleted.
15. Section 6.5(e) shall be amended to delete
reference to Special General Partner so as to read: "The
Partnership shall pay the Managing General Partner its Incentive
Fees, if any, or an estimate thereof for each preceding fiscal
year on or before January 15 of the succeeding year with such
adjustments as may be necessary to be made within 10 Business
Days after the precise Annual Fee has been determined as provided
in section 6.5(d)."
16. Section 6.5(f) shall be deleted.
17. Section 6.5(g) shall be amended to delete the
words " the Special General Partner."
18. Section 6.5(h) shall be amended to delete the
words "and the Special General Partner."
19. The last sentence of Section 6.6(a) shall be
amended to delete the required consent of the Special General
Partner so as to read: "The Managing General Partner shall have
as its subscribed capitalization the sum of at least $500,000."
20. The last sentence of section 6.6(b) shall be
deleted.
21. The last sentence of Section 6.11(a) shall be
deleted so as to read: "At all times from and after the date
hereof, a majority of the members of the board of directors of
the Managing General Partner shall be Persons who are not
shareholders of the Managing General Partner or a member of the
immediate family of such a shareholder."
22. Section 6.12 shall be deleted.
23. Section 11.7 shall be deleted.
24. Section 12.4 shall be deleted.
25. The fourth sentence of Section 13.1(a) shall be
amended to delete the required notice to the Special General
Partner so as to read: "On or after December 31, 2082, the
Managing General Partner may withdraw from the Partnership upon
120 days advance written notice to the Limited Partners, except
as otherwise provided herein."
26. Section 13.2 shall be deleted.
27. The first sentence of Section 14.1 shall be
amended to delete reference to the Special General Partner so as
to read: "The Partnership shall not be dissolved by the
admission of Additional Limited Partners or the admission of
additional or substituted General Partners in accordance with the
terms of this Agreement."
28. Section 14.1(d) shall be deleted.
29. Section 15.3(a)(i) shall be deleted.
-End-