Exhibit 10.1
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CREDIT AGREEMENT
AMONG
CEDAR FAIR, L.P.,
CEDAR FAIR,
MAGNUM MANAGEMENT CORPORATION,
▇▇▇▇▇'▇ ▇▇▇▇▇ FARM,
AS BORROWERS,
THE FINANCIAL INSTITUTIONS NAMED HEREIN
AS BANKS
AND
KEYBANK NATIONAL ASSOCIATION,
AS LEAD ARRANGER AND ADMINISTRATIVE AGENT
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DATED AS OF
MARCH 14, 2006
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS............................................. 2
Section 1.1. Definitions............................................. 2
Section 1.2. Accounting Terms........................................ 19
Section 1.3. Plural Terms............................................ 19
ARTICLE II. AMOUNT AND TERMS OF CREDIT.............................. 19
Section 2.1. Amount and Nature of Credit............................. 19
Section 2.2. Conditions to Loans and Letters of Credit............... 24
Section 2.3. Treasury Manager........................................ 25
Section 2.4. Liability of Borrowers.................................. 26
Section 2.5. Additional Borrowers.................................... 26
Section 2.6. Payment of Loans........................................ 27
Section 2.7. Prepayment.............................................. 28
Section 2.8. Modifications to Commitment............................. 29
Section 2.9. Facility and Other Fees................................. 30
Section 2.10. Computation of Interest and Fees; Default Rate.......... 31
Section 2.11. Mandatory Payment....................................... 31
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR LOANS;
INCREASED CAPITAL; TAXES................................ 31
Section 3.1. Reserves or Deposit Requirements, Etc................... 31
Section 3.2. Tax Law, Etc............................................ 32
Section 3.3. Eurodollar Deposits Unavailable or Interest Rate
Unascertainable......................................... 33
Section 3.4. Indemnity............................................... 33
Section 3.5. Changes in Law Rendering LIBOR Loans Unlawful........... 33
Section 3.6. Funding................................................. 34
Section 3.7. Capital Adequacy........................................ 34
ARTICLE IV. CONDITIONS PRECEDENT.................................... 34
Section 4.1. Notes................................................... 34
Section 4.2. Guaranties of Payment of Debt........................... 35
Section 4.3. Intercreditor Agreement................................. 35
Section 4.4. Officer's Certificate, Resolutions, Organizational
Documents............................................... 35
Section 4.5. Legal Opinion........................................... 35
Section 4.6. Good Standing and Full Force and Effect Certificates.... 35
Section 4.7. Closing, Agent and Legal Fees........................... 35
Section 4.8. Existing Credit Agreements.............................. 35
Section 4.9. Closing Certificate..................................... 35
Section 4.10. Note Agreements......................................... 35
Section 4.11. Amendment to Note Agreements............................ 36
Section 4.12. No Material Adverse Change.............................. 36
Section 4.13. Miscellaneous........................................... 36
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ARTICLE V. COVENANTS............................................... 36
Section 5.1. Insurance............................................... 36
Section 5.2. Money Obligations....................................... 36
Section 5.3. Financial Statements.................................... 36
Section 5.4. Financial Records....................................... 37
Section 5.5. Franchises; Change in Business.......................... 37
Section 5.6. ERISA Compliance........................................ 37
Section 5.7. Financial Covenants..................................... 38
Section 5.8. Borrowing............................................... 38
Section 5.9. Liens................................................... 39
Section 5.10. Regulations U and X..................................... 40
Section 5.11. Investments and Loans................................... 40
Section 5.12. Merger and Sale of Assets............................... 41
Section 5.13. Acquisitions............................................ 42
Section 5.14. Notices................................................. 42
Section 5.15. Environmental Compliance................................ 43
Section 5.16. Affiliate Transactions.................................. 43
Section 5.17. Use of Proceeds......................................... 43
Section 5.18. Corporate Names......................................... 43
Section 5.19. Subsidiary Guaranties................................... 43
Section 5.20. Restrictive Agreements.................................. 44
Section 5.21. Other Covenants......................................... 44
Section 5.22. Guaranty Under Material Indebtedness Agreement.......... 44
Section 5.23. Pari Passu Ranking...................................... 44
Section 5.24. Note Agreements......................................... 44
Section 5.25. Limitations on Funded Debt.............................. 45
Section 5.26. Amendment of Organizational Documents................... 48
Section 5.27. Anti-Terrorism Laws..................................... 48
ARTICLE VI. REPRESENTATIONS AND WARRANTIES.......................... 48
Section 6.1. Corporate Existence; Subsidiaries; Foreign
Qualification........................................... 48
Section 6.2. Corporate Authority..................................... 48
Section 6.3. Compliance With Laws.................................... 49
Section 6.4. Litigation and Administrative Proceedings............... 49
Section 6.5. Title to Assets......................................... 49
Section 6.6. Liens and Security Interests............................ 49
Section 6.7. Tax Returns............................................. 50
Section 6.8. Environmental Laws...................................... 50
Section 6.9. Continued Business...................................... 50
Section 6.10. Employee Benefits Plans................................. 50
Section 6.11. Consents or Approvals................................... 51
Section 6.12. Solvency................................................ 51
Section 6.13. Financial Statements.................................... 51
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Section 6.14. Regulations............................................. 51
Section 6.15. Intellectual Property................................... 52
Section 6.16. Insurance............................................... 52
Section 6.17. Accurate and Complete Statements........................ 52
Section 6.18. Investment Company; Holding Company..................... 52
Section 6.19. Anti-Terrorism Laws..................................... 52
Section 6.20. Reportable Transactions................................. 53
Section 6.21. Defaults................................................ 53
ARTICLE VII. EVENTS OF DEFAULT....................................... 53
Section 7.1. Payments................................................ 53
Section 7.2. Special Covenants....................................... 53
Section 7.3. Other Covenants......................................... 53
Section 7.4. Representations and Warranties.......................... 53
Section 7.5. Cross Default........................................... 53
Section 7.6. ERISA Default........................................... 54
Section 7.7. Change in Control; Determination of Taxability.......... 54
Section 7.8. Money Judgment.......................................... 54
Section 7.9. Validity of Loan Documents.............................. 54
Section 7.10. Solvency................................................ 54
ARTICLE VIII. REMEDIES UPON DEFAULT................................... 54
Section 8.1. Optional Defaults....................................... 55
Section 8.2. Automatic Defaults...................................... 55
Section 8.3. Letters of Credit....................................... 55
Section 8.4. Offsets................................................. 55
Section 8.5. Equalization Provision.................................. 56
ARTICLE IX. THE AGENT............................................... 56
Section 9.1. Appointment and Authorization........................... 56
Section 9.2. Note Holders............................................ 56
Section 9.3. Consultation With Counsel............................... 56
Section 9.4. Documents............................................... 57
Section 9.5. Agent and Affiliates.................................... 57
Section 9.6. Knowledge of Default.................................... 57
Section 9.7. Action by Agent......................................... 57
Section 9.8. Notices, Default........................................ 57
Section 9.9. Indemnification of Agent................................ 57
Section 9.10. Successor Agent......................................... 58
Section 9.11. Other Agents............................................ 58
Section 9.12. No Reliance on Agent's Customer Identification Program.. 58
Section 9.13. USA Patriot Act......................................... 58
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ARTICLE X. MISCELLANEOUS........................................... 59
Section 10.1. Banks' Independent Investigation........................ 59
Section 10.2. No Waiver; Cumulative Remedies.......................... 59
Section 10.3. Amendments; Consents.................................... 59
Section 10.4. Notices................................................. 59
Section 10.5. Costs, Expenses and Taxes............................... 60
Section 10.6. Indemnification......................................... 60
Section 10.7. Obligations Several; No Fiduciary Obligations........... 60
Section 10.8. Execution in Counterparts............................... 61
Section 10.9. Binding Effect; Borrowers' Assignment................... 61
Section 10.10. Bank Assignments; Participations........................ 61
Section 10.11. Severability of Provisions; Captions; Attachments....... 63
Section 10.12. Entire Agreement........................................ 64
Section 10.13. Governing Law; Submission to Jurisdiction............... 64
Section 10.14. Legal Representation of Parties......................... 64
Section 10.15. Confidentiality......................................... 64
Section 10.16. Treasury Regulations.................................... 65
Section 10.17. Limited Liability of Partners........................... 65
Section 10.18. Jury Trial Waiver....................................... S-1
SCHEDULE 1 - BANKS AND COMMITMENTS
SCHEDULE 2 - GUARANTORS OF PAYMENT
SCHEDULE 3 - LETTERS OF CREDIT
SCHEDULE 5.8 - INDEBTEDNESS
SCHEDULE 5.9 - LIENS
SCHEDULE 6.1 - CORPORATE EXISTENCE, SUBSIDIARIES, FOREIGN QUALIFICATION
AND CAPITALIZATION
SCHEDULE 6.4 - LITIGATION AND ADMINISTRATIVE PROCEEDINGS
SCHEDULE 6.10 - EMPLOYEE BENEFIT PLANS
EXHIBIT A - REVOLVING CREDIT NOTE......................................... A-1
EXHIBIT B - SWING LINE NOTE............................................... B-1
EXHIBIT C - NOTICE OF LOAN................................................ C-1
EXHIBIT D - COMPLIANCE CERTIFICATE........................................ D-1
EXHIBIT E - FORM OF GUARANTY OF PAYMENT OF DEBT........................... E-1
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EXHIBIT F - INTERCREDITOR AGREEMENT....................................... F-1
EXHIBIT G - FORM OF ASSUMPTION AGREEMENT.................................. G-1
EXHIBIT H - FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT................... H-1
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EXECUTION VERSION
This CREDIT AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this "Agreement") is made effective as of March
14, 2006, among:
(a) CEDAR FAIR, L.P., a Delaware limited partnership ("Cedar Fair
LP");
(b) CEDAR FAIR, an Ohio general partnership ("Cedar Fair");
(c) MAGNUM MANAGEMENT CORPORATION, an Ohio corporation ("Magnum
Management"), in its capacity as a Borrower (as hereinafter defined) and in
its capacity as treasury manager (in such capacity as treasury manager,
together with any successor appointed pursuant to Section 2.3 hereof, the
"Treasury Manager");
(d) ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a California general partnership ("▇▇▇▇▇'▇
▇▇▇▇▇ Farm"; and together with Cedar Fair LP, Cedar Fair, Magnum Management
and each other Company that shall become a Borrower pursuant to Section 2.5
hereof, collectively, "Borrowers" and, individually, each a "Borrower");
(e) the banking institutions named in Schedule 1 hereto (collectively,
"Banks" and, individually, each a "Bank");
(f) KEYBANK NATIONAL ASSOCIATION, as lead arranger, sole book runner
and administrative agent for the Banks under this Agreement (in such
capacity as administrative agent, "Agent");
(g) JPMORGAN CHASE BANK, N.A., as syndication agent (in such capacity,
the "Syndication Agent"); and
(h) WACHOVIA BANK, NATIONAL ASSOCIATION, as documentation agent (in
such capacity, the "Documentation Agent").
WITNESSETH:
WHEREAS, Borrowers, Agent and the Banks desire to contract for the
establishment of credits in the aggregate principal amounts hereinafter set
forth, to be made available to Borrowers upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Acquisition" shall mean any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of any Person, or any business or
division of any Person, (b) the acquisition of in excess of fifty percent (50%)
of the stock (or other equity interest) of any Person, or (c) the acquisition of
another Person (other than a Company) by a merger or consolidation or any other
combination with such Person.
"Additional Commitment" shall have the meaning given to such term in
Section 2.8(c) hereof.
"Additional Bank" shall mean a financial institution that shall become a
Bank hereunder pursuant to Section 2.8(c) hereof.
"Additional Bank Assumption Agreement" shall mean an Assumption Agreement
in form and substance satisfactory to Agent, wherein an Additional Bank shall
become a Bank hereunder.
"Advantage" shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Bank in respect of the Debt, if such payment results in that
Bank having less than its pro rata share of the Debt then outstanding than was
the case immediately before such payment.
"Affiliate" shall mean any Person, directly or indirectly, controlling,
controlled by or under common control with a Company and "control" (including
the correlative meanings, the terms "controlling", "controlled by" and "under
common control with") shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Company, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" shall have the meaning given to such term in the first paragraph of
this Agreement, and shall include any successor appointed pursuant to Section
9.10 hereof.
"Agent Fee Letter" shall mean the letter between Borrowers and Agent, dated
as of January 20, 2006, as the same may from time to time be amended, restated
or otherwise modified.
"Anti-Terrorism Law" shall mean the USA Patriot Act or any other law
pertaining to the prevention of future acts of terrorism, in each case as such
law may be amended from time to time.
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"Applicable Facility Fee Rate" shall mean:
(a) for the period from the Closing Date through May 31, 2006, 17.50
basis points; and
(b) commencing with the financial statements for the fiscal quarter
ending March 26, 2006, the number of basis points set forth in the
following matrix, based upon the result of the computation of the
Consolidated EBITDA/Interest Ratio, shall be used to establish the number
of basis points that will go into effect on June 1, 2006 and thereafter:
CONSOLIDATED EBITDA/INTEREST RATIO APPLICABLE FACILITY FEE RATE
---------------------------------- ----------------------------
Greater than or equal to 11.00 to 1.00 12.50 basis points
Greater than or equal to 8.00 to 1.00, but less than 11.00 15.00 basis points
to 1.00
Greater than or equal to 6.00 to 1.00, but less than 8.00 to 17.50 basis points
1.00
Greater than or equal to 5.00 to 1.00, but less than 6.00 to 20.00 basis points
1.00
Less than 5.00 to 1.00 22.50 basis points
Changes to the Applicable Facility Fee Rate shall be effective on the first day
of the month following the date upon which Agent received, or, if earlier,
should have received, pursuant to Section 5.3(a) and (b) hereof, the financial
statements of the Companies. The above matrix does not modify or waive, in any
respect, the requirements of Section 5.7 hereof, the rights of Agent and the
Banks to charge the Default Rate, or the rights and remedies of Agent and the
Banks pursuant to Articles VII and VIII hereof.
"Applicable Margin" shall mean:
(a) for the period from the Closing Date through May 31, 2006, 57.50
basis points; and
(b) commencing with the financial statements for the fiscal quarter
ending March 26, 2006, the number of basis points set forth in the
following matrix, based upon the result of the computation of the
Consolidated EBITDA/Interest Ratio, shall be used to establish the number
of basis points that will go into effect on June 1, 2006 and thereafter:
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CONSOLIDATED EBITDA/INTEREST RATIO APPLICABLE MARGIN
---------------------------------- ------------------
Greater than or equal to 11.00 to 1.00 37.50 basis points
Greater than or equal to 8.00 to 1.00, but less than 11.00 47.50 basis points
to 1.00
Greater than or equal to 6.00 to 1.00, but less than 8.00 to 57.50 basis points
1.00
Greater than or equal to 5.00 to 1.00, but less than 6.00 to 67.50 basis points
1.00
Less than 5.00 to 1.00 90.00 basis points
Changes to the Applicable Margin shall be effective on the first day of the
month following the date upon which Agent received, or, if earlier, Agent should
have received, pursuant to Section 5.3(a) and (b) hereof, the financial
statements of the Companies. The above matrix does not modify or waive, in any
respect, the requirements of Section 5.7 hereof, the rights of Agent and the
Banks to charge the Default Rate, or the rights and remedies of Agent and the
Banks pursuant to Articles VII and VIII hereof.
"Assignment Agreement" shall mean an Assignment and Acceptance Agreement in
the form of the attached Exhibit H.
"Assumption Agreement" shall mean each of the Assumption Agreements
executed by a Company that shall have become a Borrower pursuant to Section 2.5
hereof after the Closing Date, in the form of the attached Exhibit G, as the
same may from time to time be amended, restated or otherwise modified.
"Average Consolidated Funded Indebtedness" shall mean, on any date of
determination, the average of the aggregate amount of Consolidated Funded
Indebtedness outstanding as of the last day of each of the most recently
completed four fiscal quarters.
"Bank" and "Banks" shall have the meanings given to such terms in the first
paragraph of this Agreement.
"Base Rate" shall mean a rate per annum equal to the greater of (a) the
Prime Rate or (b) one-half of one percent (1/2%) in excess of the Federal Funds
Effective Rate. Any change in the Base Rate shall be effective immediately from
and after such change in the Base Rate.
"Base Rate Loan" shall mean a Loan described in Section 2.1 hereof on which
Borrowers shall pay interest at a rate based on the Base Rate.
"Borrower" and "Borrowers" shall have the meanings given to such terms in
the first paragraph of this Agreement.
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"Business Day" shall mean a day of the year on which banks are not required
or authorized to close in Cleveland, Ohio, and, if the applicable Business Day
relates to any LIBOR Loan, on which dealings are carried on in the London
interbank eurodollar market.
"Capital Distribution" shall mean a payment made, liability incurred or
other consideration given for the purchase, acquisition, redemption, repurchase
or retirement of any capital stock or other equity interest of any Company or as
a dividend, return of capital or other distribution (other than any stock
dividend, stock split or other equity distribution payable only in capital stock
or other equity of the Company in question) in respect of any Company's capital
stock or other equity interest.
"Cash Equivalents" shall mean (a) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than one year from the date of acquisition; (b) U.S. dollar denominated time
deposits, certificates of deposit and bankers' acceptances of any Bank or any
bank whose short-term commercial paper rating from Standard & Poor's is at least
A-1, or the equivalent thereof, or from ▇▇▇▇▇'▇ is at least P-1, or the
equivalent thereof (any such bank, an "Approved Depository"), in each case with
maturities of not more than one year from the date of acquisition; (c)
commercial paper issued by any Bank or Approved Depository or by the parent
company of any Bank or Approved Depository and commercial paper issued by, or
guaranteed by, any industrial or financial company with a short-term commercial
paper rating of at least A-1 or the equivalent thereof by Standard & Poor's or
at least P-1 or the equivalent thereof by Moody's, or guaranteed by any
industrial company with a long term unsecured debt rating of at least A or A2,
or the equivalent of each thereof, from Standard & Poor's or Moody's, as the
case may be, and in each case maturing within two hundred seventy (270) days
after the date of acquisition; (d) investments in money market funds
substantially all the assets of which are comprised of securities of the types
described in subparts (a) through (c) above; and (e) investments in money market
funds access to which is provided as part of "sweep" accounts maintained with a
Bank or an Approved Depository.
"Cedar Fair" shall have the meaning given to such term in the first
paragraph of this Agreement.
"Cedar Fair LP" shall have the meaning given to such term in the first
paragraph of this Agreement.
"Change in Control" shall mean:
(a) any person or group (as such term is defined in section 13(d)(3)
of the Securities Exchange Act of 1934, as then in effect), other than
Cedar Fair LP, any trustee or other fiduciary holding securities under an
employee benefit plan of the Companies or the Current Holder Group, shall
acquire, directly or indirectly, beneficial ownership (within the meaning
of Rule 13d-3 and 13d-5 of the Securities Exchange Act of 1934, as then in
effect) of more than forty percent (40%), on a fully diluted basis, of the
economic or voting interest in Cedar Fair LP's partnership interests;
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(b) the holders of partnership interests in Cedar Fair LP shall
approve a merger or consolidation of Cedar Fair LP with any other Person,
other than a merger or consolidation that would result in the partnership
interests of Cedar Fair LP outstanding immediately prior thereto continuing
to represent (either by remaining outstanding or by being converted or
exchanged for voting securities of the surviving or resulting entity or its
parent corporation) more than fifty-one percent (51%) of the Voting Power
of the partnership interests or other voting securities of Cedar Fair LP or
such surviving or resulting entity (or parent corporation) outstanding
after such merger or consolidation;
(c) the holders of partnership interests in Cedar Fair LP shall
approve a plan of complete liquidation of Cedar Fair LP or an agreement or
agreements for the sale or disposition by Cedar Fair LP of all or
substantially all of the assets of Cedar Fair LP; or
(d) Cedar Fair LP shall cease to own, directly or indirectly, or with
another Borrower, one hundred percent (100%) of the beneficial ownership
(within the meaning of Rule 13d-3 and 13d-5 of the Securities and Exchange
Act of 1934, as then in effect) of the economic and voting interest of each
other Borrower.
"Closing Commitment Amount" shall mean the principal amount of Two Hundred
Fifty Million Dollars ($250,000,000).
"Closing Date" shall mean the effective date of this Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated thereunder.
"Commitment" shall mean the obligation hereunder of the Banks, during the
Commitment Period, to make Loans and to participate in the issuance of Letters
of Credit pursuant to the Revolving Credit Commitments, up to the Total
Commitment Amount.
"Commitment Percentage" shall mean, for each Bank, the percentage set forth
opposite such Bank's name under the column headed "Commitment Percentage", as
listed in Schedule 1 hereto.
"Commitment Period" shall mean the period from the Closing Date to March
14, 2011, or such earlier date on which the Commitment shall have been
terminated pursuant to Article VIII hereof.
"Company" shall mean a Borrower or Subsidiary.
"Companies" shall mean all Borrowers and Subsidiaries.
"Compliance Certificate" shall mean a certificate, substantially in the
form of the attached Exhibit D.
"Confidential Information" shall mean any non-public information obtained
by Agent or any Bank pursuant to the requirements of this Agreement that shall
have been identified as such by the Treasury Manager, but does not include
information (a) that was publicly available or
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otherwise known to Agent or such Bank at the time of disclosure (other than
through disclosure by a Company), (b) that subsequently becomes publicly known
through no act or omission by Agent or any Bank, or (c) that otherwise becomes
known to Agent or such Bank, other than through disclosure by a Company or
disclosure in violation of an obligation of confidence of which Agent or such
Bank knows or should have known.
"Consideration" shall mean, in connection with an Acquisition, the
aggregate consideration paid, including borrowed funds, cash, the issuance of
securities or notes, the assumption or incurring of liabilities (direct or
contingent), the payment of consulting fees or fees for a covenant not to
compete and any other consideration paid for such purchase.
"Consolidated" shall mean the resultant consolidation of the financial
statements of Cedar Fair LP in accordance with GAAP, including principles of
consolidation consistent with those applied in preparation of the consolidated
financial statements referred to in Section 6.13 hereof.
"Consolidated Depreciation and Amortization Charges" shall mean, for any
period, the aggregate of all depreciation and amortization charges for fixed
assets, leasehold improvements and general intangibles (specifically including
goodwill) of Borrowers for such period, as determined on a Consolidated basis
and in accordance with GAAP.
"Consolidated EBIT" shall mean, for any period, on a Consolidated basis and
in accordance with GAAP, Consolidated Net Earnings for such period plus (a) the
aggregate amounts deducted in determining such Consolidated Net Earnings in
respect of (i) Consolidated Income Tax Expense, (ii) Consolidated Interest
Expense, and (iii) extraordinary non-cash losses and charges and other
non-recurring (with the understanding that unit option expense shall not
constitute a recurring event) non-cash losses and charges, minus (b) gains on
sales of assets (excluding sales in the ordinary course of business) and other
extraordinary gains and non-recurring (with the understanding that unit option
credits shall not constitute a recurring event) non-cash gains.
"Consolidated EBITDA" shall mean, for any period, on a Consolidated basis
and in accordance with GAAP, Consolidated EBIT plus Consolidated Depreciation
and Amortization Charges; provided that Consolidated EBITDA for any period shall
(a) include the appropriate financial items for any Person or business unit that
has been acquired by any Company for any portion of such period prior to the
date of acquisition, and (b) exclude the appropriate financial items for any
Person or business unit that has been disposed of by any Company, for the
portion of such period prior to the date of disposition.
"Consolidated EBITDA/Interest Ratio" shall mean, at any time, for the most
recently completed four fiscal quarters of Borrowers, on a Consolidated basis
and in accordance with GAAP, the ratio of (a) Consolidated EBITDA (without
giving effect to the proviso in the definition of Consolidated EBITDA) to (b)
Consolidated Interest Expense.
"Consolidated Funded Indebtedness" shall mean, at any date, on a
Consolidated basis, all Indebtedness of the Companies for borrowed money and
capitalized leases, including, but not limited to, current, long-term and
Subordinated Indebtedness, if any; provided, however, that (i)
7
if in accordance with SFAS No. 133 at the end of any fiscal quarter the
Companies are required to record an asset on their Consolidated balance sheet
for such fiscal quarter as a result of the ▇▇▇▇-To-Market Value of a fixed to
floating interest rate swap for such fiscal quarter and the Companies are also
required to increase the aggregate amount of Consolidated Funded Indebtedness on
their Consolidated balance sheet in an amount equal to the amount of such asset,
then the amount by which Consolidated Funded Indebtedness has been increased to
offset such asset for such fiscal quarter shall be excluded from Consolidated
Funded Indebtedness for such fiscal quarter, and (ii) if in accordance with SFAS
No. 133 at the end of any fiscal quarter the Companies are required to record a
liability on their Consolidated balance sheet for such fiscal quarter as a
result of the ▇▇▇▇-To-Market Value of a fixed to floating interest rate swap for
such fiscal quarter and the Companies are also required to decrease the
aggregate amount of Consolidated Funded Indebtedness on their Consolidated
balance sheet in an amount equal to the amount of such liability, then the
amount by which Consolidated Funded Indebtedness has been decreased will be
included as Consolidated Funded Indebtedness under this agreement for such
fiscal quarter.
"Consolidated Income Tax Expense" shall mean, for any period, all
provisions for taxes based on the gross or net income of Borrowers (including,
without limitation, any additions to such taxes, and any penalties and interest
with respect thereto), and all franchise taxes of Borrowers, as determined on a
Consolidated basis and in accordance with GAAP.
"Consolidated Interest Expense" shall mean, for any period, the interest
expense of Borrowers for such period, as determined on a Consolidated basis and
in accordance with GAAP.
"Consolidated Net Assets" shall mean, as of any time of determination
thereof, with respect to the Borrowers on a Consolidated basis, their assets
less, without duplication, all of their (i) current liabilities, (ii) asset,
liability, contingency and other appropriate reserves, including reserves for
depreciation and amortization expense and for deferred income taxes and (iii)
other liabilities.
"Consolidated Net Earnings" shall mean, for any period, the net income
(loss) of Borrowers for such period, as determined on a Consolidated basis and
in accordance with GAAP.
"Consolidated Net Worth" shall mean, at any date, all amounts that, in
accordance with GAAP, would be included under the caption "total partners'
equity" (or any like caption) on the Consolidated balance sheet of Cedar Fair LP
as of such date.
"Controlled Group" shall mean a Company and each Person required to be
aggregated with a Company under Code Sections 414(b), (c), (m) or (o).
"Current Holder Group" shall mean (a) those individuals who are officers
and directors of Cedar Fair LP or the Managing General Partner on the Closing
Date, (b) the spouses, heirs, legatees, descendants and blood relatives to the
third degree of consanguinity of any such individual, (c) the executors and
administrators of the estate of any such individual, and any court appointed
guardian of any such individual, and (d) any trust for the benefit of any such
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individual referred to in the foregoing clauses (a) and (b) or any other
individuals, so long as one or more members of the Current Holder Group has the
exclusive right to control the voting and disposition of securities held by such
trust.
"Debt" shall mean, collectively, all Indebtedness and other obligations
incurred by Borrowers to Agent and the Banks pursuant to this Agreement and the
other Loan Documents and includes the principal of and interest on all Loans and
the Letter of Credit Exposure and each extension, renewal or refinancing thereof
in whole or in part, the facility fees, other fees and any prepayment fees
payable hereunder.
"Default" shall mean an event or condition that constitutes, or with the
lapse of any applicable grace period or the giving of notice or both would
constitute, an Event of Default and that has not been waived by the Required
Banks or all of the Banks, as the case may be, in writing.
"Default Rate" shall mean a rate per annum equal to two percent (2%) in
excess of the Base Rate from time to time in effect.
"Derivative Obligation" shall mean, with respect to any Person, any
obligations of such Person in respect of any rate swap transaction, basis swap,
forward rate swap transaction, commodity swap transaction, commodity option,
equity or equity index swap, equity or equity index swap option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency rate
swap transaction, currency option or any other similar transaction or any
combination of the foregoing transactions.
"Derived LIBOR Rate" shall mean a rate per annum equal to the sum of the
Applicable Margin (from time to time in effect) plus the LIBOR Rate.
"Derived Swing Loan Rate" shall mean a rate per annum equal to (a) Agent's
costs of funds as quoted to the Treasury Manager by Agent and agreed to by the
Treasury Manager, plus (b) the Applicable Margin (from time to time in effect),
plus (c) the Applicable Facility Fee Rate.
"Determination of Taxability" shall mean any of the following:
(a) Cedar Fair LP shall elect, for Federal income tax purposes, to be
treated as an association taxable as a corporation under Subchapter C of
the Code;
(b) Cedar Fair LP shall have received from the Internal Revenue
Service any written notice or other communication that questions the status
or right of Cedar Fair LP to be treated as a partnership under the Code,
and not as an association taxable as a corporation under Subchapter C of
the Code, and within sixty (60) days following the receipt of any such
notice or other communication Cedar Fair LP has not obtained, and provided
to Agent a copy of, a written confirmation from the Internal Revenue
Service that such notice or other communication is withdrawn and further
confirming that the Internal Revenue Service recognizes that Cedar Fair LP
is entitled to be treated as a partnership under the Code, and not as an
association taxable as a corporation under Subchapter C of the Code; or
9
(c) any other event or circumstance shall occur or exist that, in the
reasonable opinion of Agent, draws into question the status or right of
Cedar Fair LP to be treated as a partnership under the Code, and not as an
association taxable as a corporation under Subchapter C of the Code, and
within thirty (30) days following the receipt by Cedar Fair LP of a written
request therefor from Agent, Cedar Fair LP shall have failed to deliver to
Agent a written opinion, reasonably satisfactory in form, scope and
substance to Agent, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P., or other nationally
recognized independent tax counsel, to the effect that, in the opinion of
such counsel, Cedar Fair LP should be treated for Federal income tax
purposes as a partnership, and not as an association taxable as a
corporation under Subchapter C of the Code, and covering such other matters
related thereto as Agent may reasonably request.
"Documentation Agent" shall have the meaning given to such term in the
first paragraph of this Agreement.
"Environmental Laws" shall mean all provisions of law, statutes,
ordinances, rules, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by the government
of the United States of America or by any state or municipality thereof or by
any court, agency, instrumentality, regulatory authority or commission of any of
the foregoing concerning health, safety and protection of, or regulation of the
discharge of substances into, the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated pursuant thereto.
"ERISA Event" shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that presents a material risk of the imposition of an
excise tax or any other liability on a Company or of the imposition of a Lien on
the assets of a Company; (b) the engagement by a Controlled Group member in a
non-exempt "prohibited transaction" (as defined under ERISA Section 406 or Code
Section 4975) or a breach of a fiduciary duty under ERISA that could result in
material liability to a Company; (c) the application by a Controlled Group
member for a waiver from the minimum funding requirements of Code Section 412 or
ERISA Section 302 or a Controlled Group member is required to provide security
under Code Section 401(a)(29) or ERISA Section 307; (d) the occurrence of a
Reportable Event with respect to any Pension Plan as to which notice is required
to be provided to the PBGC; (e) the withdrawal by a Controlled Group member from
a Multiemployer Plan in a "complete withdrawal" or a "partial withdrawal" (as
such terms are defined in ERISA Sections 4203 and 4205, respectively); (f) the
involvement of, or occurrence or existence of any event or condition that makes
likely the involvement of, a Multiemployer Plan in any reorganization under
ERISA Section 4241; (g) the failure of an ERISA Plan (and any related trust)
that is intended to be qualified under Code Sections 401 and 501 to be so
qualified or the failure of any "cash or deferred arrangement" under any such
ERISA Plan to meet the requirements of Code Section 401(k); (h) the taking by
the PBGC of any steps to terminate a Pension Plan or appoint a trustee to
administer a Pension Plan, or the taking by a Controlled Group member of any
steps to terminate a Pension Plan; (i) the failure by a Controlled Group member
or an ERISA Plan to satisfy any material requirements of law applicable to an
ERISA Plan; (j) the commencement, existence or threatening of a claim, action,
suit, audit or investigation with respect to an ERISA Plan, other than a routine
claim for benefits;
10
or (k) any occurrence by or any expectation of the incurrence by a Controlled
Group member of any material liability for post-retirement benefits under any
Welfare Plan, other than as required by ERISA Section 601, et. seq. or Code
Section 4980B.
"ERISA Plan" shall mean an "employee benefit plan" (within the meaning of
ERISA Section 3(3)) that a Controlled Group member at any time sponsors,
maintains, contributes to, has liability with respect to or has an obligation to
contribute to such plan.
"Eurocurrency Reserve Percentage" shall mean, for any Interest Period in
respect of any LIBOR Loan, as of any date of determination, the aggregate of the
then stated maximum reserve percentages (including any marginal, special,
emergency or supplemental reserves), expressed as a decimal, applicable to such
Interest Period (if more than one such percentage is applicable, the daily
average of such percentages for those days in such Interest Period during which
any such percentage shall be so applicable) by the Board of Governors of the
Federal Reserve System, any successor thereto, or any other banking authority,
domestic or foreign, to which a Bank may be subject in respect to eurocurrency
funding (currently referred to as "Eurocurrency Liabilities" in Regulation D of
the Federal Reserve Board) or in respect of any other category of liabilities
including deposits by reference to which the interest rate on LIBOR Loans is
determined or any category of extension of credit or other assets that include
the LIBOR Loans. For purposes hereof, such reserve requirements shall include,
without limitation, those imposed under Regulation D of the Federal Reserve
Board and the LIBOR Loans shall be deemed to constitute Eurocurrency Liabilities
subject to such reserve requirements without benefit of credits for proration,
exceptions or offsets which may be available from time to time to any Bank under
said Regulation D.
"Event of Default" shall mean an event or condition that shall constitute
an event of default as defined in Article VII hereof.
"Federal Funds Effective Rate" shall mean, for any day, the rate per annum
(rounded upward to the nearest one one-hundredth of one percent (1/100 of 1%))
announced by the Federal Reserve Bank of New York (or any successor) on such day
as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the Closing Date.
"Financial Officer" shall mean any of the following officers: chief
executive officer, president, chief financial officer, controller or treasurer.
Unless otherwise qualified, all references to a Financial Officer in this
Agreement shall refer to a Financial Officer of Cedar Fair LP.
"Foreign Subsidiary" shall mean a Subsidiary that shall be organized
outside of the United States.
"Fronting Bank" shall mean, as to any Letter of Credit transaction
hereunder, Agent as issuer of the Letter of Credit, or, in the event that Agent
shall be unable to issue a Letter of
11
Credit, such other Bank as shall agree to issue the Letter of Credit in its own
name, but on behalf of the Banks hereunder.
"GAAP" shall mean generally accepted accounting principles as then in
effect, which shall include the official interpretations thereof by the
Financial Accounting Standards Board, applied on a basis consistent with the
past accounting practices and procedures of Borrowers.
"Guarantor" shall mean a Person that shall have pledged its credit or
property in any manner for the payment or other performance of the indebtedness,
contract or other obligation of another and includes (without limitation) any
guarantor (whether of payment or of collection), surety, co-maker, endorser or
Person that shall have agreed conditionally or otherwise to make any purchase,
loan or investment in order thereby to enable another to prevent or correct a
default of any kind.
"Guarantor of Payment" shall mean each of the Companies set forth on
Schedule 2 hereof, that are each executing and delivering a Guaranty of Payment
as of the Closing Date, or any other Person that shall deliver a Guaranty of
Payment to Agent subsequent to the Closing Date.
"Guaranty of Payment" shall mean each Guaranty of Payment of Debt, in the
form of Exhibit E hereto, executed and delivered on or after the Closing Date in
connection herewith by each Guarantor of Payment, as the same may from time to
time be amended, restated or otherwise modified.
"Hedge Agreement" shall mean any (a) hedge agreement, interest rate swap,
cap, collar or floor agreement, or other interest rate management device, or (b)
currency swap agreement, forward currency purchase agreement or similar
arrangement or agreement designed to protect against fluctuations in currency
exchange rates.
"Increased Maximum Commitment Amount" shall mean the principal amount of
Three Hundred Fifty Million Dollars ($350,000,000) (or such lesser amount or
amounts as shall be determined pursuant to Section 2.8(b) or (c) hereof).
"Indebtedness" shall mean, for any Company (excluding in all cases trade
payables payable in the ordinary course of business by such Company), without
duplication, (a) all obligations to repay borrowed money, direct or indirect,
incurred, assumed, or guaranteed, (b) all obligations for the deferred purchase
price of capital assets, (c) all obligations under conditional sales or other
title retention agreements, (d) all obligations (contingent or otherwise) under
any letter of credit, banker's acceptance, currency swap agreement, interest
rate swap, cap, collar or floor agreement or other interest rate management
device, (e) all synthetic leases, (f) all lease obligations that have been or
should be capitalized on the books of such Company in accordance with GAAP, (g)
all obligations of such Company with respect to asset securitization financing
programs, (h) all obligations to advance funds to, or to purchase assets,
property or services from, any other Person in order to maintain the financial
condition of such Person, and (i) any other transaction (including forward sale
or purchase agreements) having the commercial effect of a borrowing of money
entered into by such Company to finance its operations or capital requirements.
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"Intercreditor Agreement" shall mean the Intercreditor Agreement, in the
form of Exhibit F hereto, dated as of March 14, 2006 among Agent, for the
benefit of and on behalf of the Banks, and the Noteholders, as the same may from
time to time be amended, restated or otherwise modified.
"Interest Adjustment Date" shall mean the last day of each Interest Period.
"Interest Coverage Ratio" shall mean, for the most recently completed four
fiscal quarters of Borrowers, on a Consolidated basis and in accordance with
GAAP, the ratio of (a) Consolidated EBIT to (b) Consolidated Interest Expense.
"Interest Period" shall mean, with respect to any LIBOR Loan, the period
commencing on the date such LIBOR Loan is made and ending on the last day of
such period, as selected by the Treasury Manager pursuant to the provisions
hereof, and, thereafter, each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on the last day of such
period, as selected by the Treasury Manager pursuant to the provisions hereof.
The duration of each Interest Period for any LIBOR Loan shall be one month, two
months, three months or six months, in each case as the Treasury Manager may
select upon notice, as set forth in Section 2.2 hereof, provided that (a) if the
Treasury Manager fails to so select the duration of any Interest Period, the
Treasury Manager, on behalf of the applicable Borrower, shall be deemed to have
converted such LIBOR Loan to a Base Rate Loan at the end of the then current
Interest Period; and (b) the Treasury Manager may not select any Interest Period
for a LIBOR Loan that ends after any date when principal is due on such LIBOR
Loan.
"Letter of Credit" shall mean (a) the letters of credit issued by the
Agent, as the Fronting Bank, for the account of a Borrower or Guarantor of
Payment, outstanding as of the Closing Date, as listed on Schedule 3 hereto, and
(b) any standby letter of credit that shall be issued by the Fronting Bank for
the account of a Borrower or Guarantor of Payment, including amendments thereto,
if any, and shall have an expiration date no later than the earlier of (a) one
year after its date of issuance or (b) thirty (30) days prior to the last day of
the Commitment Period.
"Letter of Credit Commitment" shall mean the Commitment of the Fronting
Bank, on behalf of the Banks, to issue Letters of Credit in an aggregate face
amount of up to Thirty Million Dollars ($30,000,000).
"Letter of Credit Exposure" shall mean, at any time of determination, the
sum of (a) the aggregate undrawn face amount of all issued and outstanding
Letters of Credit, and (b) the aggregate of the draws made on Letters of Credit
that shall not have been reimbursed by Borrowers or converted to a Revolving
Loan pursuant to Section 2.1C hereof.
"Leverage Ratio" shall mean, at any time, for the most recently completed
four fiscal quarters of Borrowers, on a Consolidated basis and in accordance
with GAAP, the ratio of (a) Average Consolidated Funded Indebtedness to (b)
Consolidated EBITDA.
"LIBOR Loan" shall mean a Loan described in Section 2.1A hereof on which
Borrowers shall pay interest at a rate based on the LIBOR Rate.
13
"LIBOR Rate" shall mean, for any Interest Period with respect to a LIBOR
Loan, the quotient (rounded upwards, if necessary, to the nearest one
one-hundredth of one percent (1/100th of 1%)) of (a) the per annum rate of
interest, determined by Agent in accordance with its usual procedures (which
determination shall be conclusive absent manifest error) as of approximately
11:00 A.M. (London time) two Business Days prior to the beginning of such
Interest Period pertaining to such LIBOR Loan, as provided by Bloomberg's or
Reuters (or any other similar company or service that provides rate quotations
comparable to those currently provided by such companies as the rate in the
London interbank market) for dollar deposits in immediately available funds with
a maturity comparable to such Interest Period, divided by (b) a number equal to
1.00 minus the Eurocurrency Reserve Percentage. In the event that such rate
quotation is not available for any reason, then the rate (for purposes of clause
(a) hereof) shall be the rate, determined by Agent as of approximately 11:00
A.M. (London time) two Business Days prior to the beginning of such Interest
Period pertaining to such LIBOR Loan, to be the average (rounded upwards, if
necessary, to the nearest one one-hundredth of one percent (1/100th of 1%)) of
the per annum rates at which dollar deposits in immediately available funds in
an amount comparable to such LIBOR Loan and with a maturity comparable to such
Interest Period are offered to the prime banks by leading banks in the London
interbank market. The LIBOR Rate shall be adjusted automatically on and as of
the effective date of any change in the Eurocurrency Reserve Percentage.
"Lien" shall mean any mortgage, security interest, lien (statutory or
other), charge, encumbrance on, pledge or deposit of, or conditional sale,
leasing, sale with a right of redemption or other title retention agreement and
any capitalized lease with respect to any property (real or personal) or asset.
"Loan" or "Loans" shall mean the credit extended to Borrowers by the Banks
in accordance with Section 2.1A or B hereof.
"Loan Documents" shall mean, collectively, this Agreement, each Note, each
Guaranty of Payment, all documentation relating to each Letter of Credit, the
Intercreditor Agreement, the Agent Fee Letter, each Additional Bank Assumption
Agreement and each Assumption Agreement, as any of the foregoing may from time
to time be amended, restated or otherwise modified or replaced.
"Magnum Management" shall have the meaning given to such term in the first
paragraph of this Agreement.
"Managing General Partner" shall mean Cedar Fair Management Inc., an Ohio
C-Corporation, together with its successors and assigns.
"▇▇▇▇-To-Market Value" shall mean, at any date with respect to any
Derivative Obligation of any Company, the termination value thereof (on a net
basis), calculated as if such Derivative Obligation had been terminated on such
date by reason of a default or termination by such Company.
14
"Material Adverse Effect" shall mean a material adverse effect on the
business, operations, property, condition (financial or otherwise) or prospects
of the Companies taken as a whole.
"Material Indebtedness" shall mean any Indebtedness of any Company or the
Companies in excess in the aggregate amount of Twenty Million Dollars
($20,000,000).
"Material Indebtedness Agreement" shall mean any debt instrument, lease
(capital, operating or otherwise), guaranty, contract, commitment, agreement or
other arrangement evidencing any Indebtedness of any Company or the Companies in
excess of the aggregate amount of Twenty Million Dollars ($20,000,000).
"Maximum Amount" shall mean, for each Bank, the respective amounts set
forth on Schedule 1 hereto opposite such Bank's name under the columns headed
"Maximum Amount other than during any Seasonal Commitment Decrease Period" or
"Maximum Amount during Seasonal Commitment Decrease Period", as determined in
accordance with Section 2.8(a) hereof.
"Maximum Commitment Amount" shall mean the principal amount of Two Hundred
Fifty Million Dollars ($250,000,000) (or such other amount as shall be
determined pursuant to Section 2.8(b) or (c) hereof).
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or any successor to
such company.
"Multiemployer Plan" shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.
"Note" shall mean any Revolving Credit Note or any Swing Line Note, or any
other note delivered pursuant to this Agreement.
"Note Agreements" shall mean, collectively, (a) the Prudential Note
Agreements, (b) the 2002 Note Agreements, and (c) the 2003 Note Agreements.
"Noteholders" shall mean (a) The Prudential Insurance Company, as the
holder of the senior notes issued pursuant to the Prudential Note Agreements,
(b) the 2002 Noteholders, as the holders of the senior notes issued pursuant to
the 2002 Note Agreements, and (c) the 2003 Noteholders, as the holders of the
senior notes issued pursuant to the 2003 Note Agreements, and the respective
successors and assigns of any of the foregoing.
"Notice of Loan" shall mean a Notice of Loan in the form of the attached
Exhibit C.
"Obligor" shall mean (a) a Person whose credit or any of whose property is
pledged to the payment of the Debt and includes, without limitation, any
Guarantor, and (b) any signatory to a Related Writing.
"Organizational Documents" shall mean, with respect to any Person (other
than an individual), such Person's Articles (Certificate) of Incorporation, or
equivalent formation
15
documents, and Regulations (Bylaws), or equivalent governing documents, and any
amendments to any of the foregoing.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or its
successor.
"Pension Plan" shall mean an ERISA Plan that is a "pension plan" (within
the meaning of ERISA Section 3(2)).
"Permitted Investment" shall mean an investment of a Company in the stock
(or other debt or equity instruments) of a Person (other than a Company), so
long as (a) the Company making the investment is a Borrower or a Guarantor of
Payment, (b) such Person is engaged in a line of business substantially similar
to the lines of business engaged in by the Companies as of the Closing Date, and
(c) the aggregate amount of all such investments made by all Companies after the
Closing Date does not exceed an aggregate amount equal to fifteen percent (15%)
of Consolidated Net Worth based upon the financial statements of the Companies
for the most recently completed fiscal quarter.
"Person" shall mean any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, corporation, limited liability company,
institution, trust, estate, government or other agency or political subdivision
thereof or any other entity.
"Prime Rate" shall mean the interest rate established from time to time by
Agent as Agent's prime rate, whether or not such rate shall be publicly
announced; the Prime Rate may not be the lowest interest rate charged by Agent
for commercial or other extensions of credit. Each change in the Prime Rate
shall be effective immediately from and after such change.
"Prudential Note Agreements" shall mean, collectively, (a) the Private
Shelf Agreement, dated as of August 24, 1994, as amended, among Cedar Fair LP
and the Noteholders named therein, and (b) the Amended and Restated Note
Purchase and Private Shelf Agreements, dated as of April 7, 2004, among Cedar
Fair LP, ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm and the Noteholders named therein, as any of the
foregoing may, in accordance with Section 5.24 hereof, from time to time be
amended, restated or otherwise modified.
"Related Writing" shall mean each Loan Document and any other assignment,
mortgage, security agreement, guaranty agreement, subordination agreement,
financial statement, audit report or other writing furnished by any Borrower,
Subsidiary or Obligor, or any of their respective officers, to Agent or the
Banks pursuant to or otherwise in connection with this Agreement.
"Reportable Event" shall mean a reportable event as that term is defined in
Title IV of ERISA, except actions of general applicability by the Secretary of
Labor under Section 110 of such Act.
"Required Banks" shall mean the holders of greater than fifty percent (50%)
of the Total Commitment Amount, or, if there shall be any borrowing hereunder,
the holders of greater than fifty percent (50%) of the aggregate principal
amount of Loans outstanding (other than Swing Loans).
16
"Revolving Credit Commitment" shall mean the obligation hereunder, during
the Commitment Period, of (a) each Bank to participate in the making of
Revolving Loans up to the Maximum Amount for such Bank, (b) each Bank to
participate in the issuance of Letters of Credit pursuant to the Letter of
Credit Commitment, and (c) Agent to make Swing Loans pursuant to the Swing Line
Commitment.
"Revolving Credit Exposure" shall mean, at any time, the sum of (a) the
aggregate principal amount of all Revolving Loans outstanding, (b) the Swing
Line Exposure, and (c) the Letter of Credit Exposure.
"Revolving Credit Note" shall mean a Revolving Credit Note executed and
delivered pursuant to Section 2.1A hereof.
"Revolving Loan" shall mean a Loan granted to Borrowers by the Banks in
accordance with Section 2.1A hereof.
"Seasonal Commitment Decrease Period" shall mean the period from August 15,
2006 through November 14, 2006, and the period from August 15 through November
14 of each year thereafter.
"Seasonal Reduced Commitment Amount" shall mean the principal amount of One
Hundred Seventy-Five Million Dollars ($175,000,000) (or such other amount as
shall be determined pursuant to Section 2.8(b) or (c) hereof).
"SEC" shall mean the United States Securities and Exchange Commission, or
any governmental body or agency succeeding to any of its principal functions.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a division
of ▇▇▇▇▇▇-▇▇▇▇, Inc., or any successor to such company.
"Subordinated", as applied to Indebtedness, shall mean that the
Indebtedness shall have been subordinated (by written terms or written agreement
being, in either case, in form and substance satisfactory to Agent and the
Required Banks) in favor of the prior payment in full of the Debt.
"Subsidiary" of a Borrower or any of its Subsidiaries shall mean (a) a
corporation more than fifty percent (50%) of the Voting Power of which is owned,
directly or indirectly, by a Borrower or by one or more other subsidiaries of a
Borrower or by a Borrower and one or more subsidiaries of a Borrower, (b) a
partnership or limited liability company of which a Borrower, one or more other
subsidiaries of a Borrower or a Borrower and one or more subsidiaries of a
Borrower, directly or indirectly, is a general partner or managing member, as
the case may be, or otherwise has the power to direct the policies, management
and affairs thereof, or (c) any other Person (other than a corporation) in which
a Borrower, one or more other subsidiaries of a Borrower or a Borrower and one
or more subsidiaries of a Borrower, directly or indirectly, has at least a
majority interest in the Voting Power or the power to direct the policies,
management and affairs thereof.
17
"Subsidiary Borrower" shall mean a Borrower hereunder that is also a
Subsidiary of Cedar Fair LP.
"Swing Line" shall mean the credit facility established by Agent for
Borrowers in accordance with Section 2.1B hereof.
"Swing Line Commitment" shall mean the commitment of Agent to make Swing
Loans to Borrowers up to the maximum aggregate amount at any time outstanding of
Twenty-Five Million Dollars ($25,000,000) in accordance with the terms and
conditions of the Swing Line.
"Swing Line Exposure" shall mean, at any time, the aggregate principal
amount of all Swing Loans outstanding.
"Swing Line Note" shall mean the Swing Line Note executed and delivered
pursuant to Section 2.1B hereof.
"Swing Loan" shall mean a Loan granted to Borrowers by Agent under the
Swing Line.
"Swing Loan Maturity Date" shall mean, with respect to any Swing Loan, the
earlier of (a) the date that is agreed to by Agent and the Treasury Manager with
respect to such Swing Loan, but in no event later than thirty (30) days after
the date such Swing Loan is made, or (b) the last day of the Commitment Period.
"Syndication Agent" shall have the meaning given to such term in the first
paragraph of this Agreement.
"Total Commitment Amount" shall mean either the Maximum Commitment Amount
or the Seasonal Reduced Commitment Amount, as the case may be, as determined in
accordance with Section 2.8(a) hereof, or such other amount as shall be
determined pursuant to Section 2.8 hereof.
"Treasury Manager" shall have the meaning given to such term in the first
paragraph of this Agreement.
"2002 Note Agreements" shall mean, collectively, the separate and several
Note Purchase Agreements, each dated as of February 8, 2002, among Cedar Fair
LP, ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm, Cedar Fair, Magnum Management and the 2002 Noteholders
named therein, as amended and as the same may from time to time be amended,
restated or otherwise modified.
"2003 Note Agreements" shall mean, collectively, the separate and several
Note Purchase Agreements, each dated as of December 22, 2003, among Cedar Fair
LP, ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm, Cedar Fair, Magnum Management and the 2003 Noteholders
named therein, and as the same may from time to time be amended, restated or
otherwise modified.
"2002 Noteholder" shall mean the institutional investors that are the
holders of the notes issued under the 2002 Note Agreements.
18
"2003 Noteholder" shall mean the institutional investors that are the
holders of the notes issued under the 2003 Note Agreements.
"USA Patriot Act" shall mean the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT Act) Act of 2001.
"Voting Power" shall mean, with respect to any Person, the exclusive
ability to control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the election of
members of the board of directors or other similar governing body of such
Person, and the holding of a designated percentage of Voting Power of a Person
means the ownership of shares of capital stock, partnership interests,
membership interests or other interests of such Person sufficient to control
exclusively the election of that percentage of the members of the board of
directors or similar governing body of such Person.
"Welfare Plan" shall mean an ERISA Plan that is a "welfare plan" within the
meaning of ERISA Section 3(l).
"Wholly-Owned Subsidiary" shall mean, with respect to any Person, any
corporation, limited liability company or other entity, all of the securities or
other ownership interest of which having ordinary voting power to elect a
majority of the board of directors, or other persons performing similar
functions, are at the time directly or indirectly owned by such Person.
Section 1.2. Accounting Terms. Any accounting term not specifically defined
in this Article I shall have the meaning ascribed thereto by GAAP.
Section 1.3. Plural Terms. The foregoing definitions shall be applicable to
the singular and plurals of the foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
Section 2.1. Amount and Nature of Credit. Subject to the terms and
conditions of this Agreement, each Bank shall participate, to the extent
hereinafter provided, in making Loans to Borrowers, and issuing Letters of
Credit at the request of Borrowers, in such aggregate amount as Borrowers shall
request pursuant to the Commitment; provided, however, that in no event shall
the aggregate principal amount of all Loans and Letters of Credit outstanding
under this Agreement be in excess of the Total Commitment Amount.
Each Bank, for itself and not one for any other, agrees to participate in
Loans made and Letters of Credit issued hereunder during the Commitment Period
on such basis that (a) immediately after the completion of any borrowing by
Borrowers or the issuance of a Letter of Credit hereunder, the aggregate
principal amount then outstanding on the Notes (other than the Swing Line Note)
issued to such Bank or, if there is no Note, outstanding from such Bank, when
combined with such Bank's pro rata share of the Letter of Credit Exposure, shall
not be in excess of the Maximum Amount for such Bank, and (b) such aggregate
principal amount outstanding on the Notes (other than the Swing Line Note)
issued to such Bank or, if there is no Note, outstanding from such Bank, shall
represent that percentage of the aggregate principal
19
amount of Loans then outstanding under the Revolving Credit Commitment that
shall be such Bank's Commitment Percentage.
Each borrowing (other than Swing Loans) from the Banks hereunder shall be
made pro rata according to the respective Commitment Percentages of the Banks.
The Loans may be made as Revolving Loans and Swing Loans, and Letters of Credit
may be issued, as follows:
A. Revolving Loans. Subject to the terms and conditions of this Agreement,
during the Commitment Period, the Banks shall make a Revolving Loan or Revolving
Loans to Borrowers in such amount or amounts as Borrowers may from time to time
request, but not exceeding in aggregate principal amount at any time outstanding
hereunder the Total Commitment Amount, when such Revolving Loans are combined
with the Revolving Credit Exposure. Borrowers shall have the option, subject to
the terms and conditions set forth herein, to borrow Revolving Loans, maturing
on the last day of the Commitment Period, by means of any combination of (a)
Base Rate Loans, or (b) LIBOR Loans.
Borrowers shall pay interest on the unpaid principal amount of Base Rate
Loans outstanding from time to time from the date thereof until paid at the Base
Rate from time to time in effect. Interest on such Base Rate Loans shall be
payable, commencing March 31, 2006, and on the last day of each succeeding June,
September, December and March thereafter and at the maturity thereof.
Borrowers shall pay interest on the unpaid principal amount of each LIBOR
Loan outstanding from time to time, fixed in advance on the first day of the
Interest Period applicable thereto through the last day of the Interest Period
applicable thereto (but subject to changes in the Applicable Margin) at the
Derived LIBOR Rate. Interest on such LIBOR Loans shall be payable on each
Interest Adjustment Date with respect to an Interest Period (provided that if an
Interest Period shall exceed three months, the interest must be paid every three
months, commencing three months from the beginning of such Interest Period).
At the request of Borrowers to Agent, subject to the notice and other
provisions of Section 2.2 hereof, the Banks shall convert Base Rate Loans to
LIBOR Loans at any time and shall convert LIBOR Loans to Base Rate Loans on any
Interest Adjustment Date.
Upon request of any Bank, to evidence the obligation of Borrowers to repay
the Base Rate Loans and LIBOR Loans made by each Bank and to pay interest
thereon, Borrowers shall execute a Revolving Credit Note of Borrowers in the
form of Exhibit A hereto, payable to the order of such Bank in the principal
amount of its Revolving Credit Commitment, or, if less, the aggregate unpaid
principal amount of Revolving Loans made hereunder by such Bank; provided,
however that the failure of any Bank to request a Revolving Credit Note shall in
no way detract from Borrowers' obligations to such Bank hereunder. Subject to
the provisions of this Agreement, Borrowers shall be entitled under this Section
2.1A to borrow funds, repay the same in whole or in part and re-borrow hereunder
at any time and from time to time during the Commitment Period.
B. Swing Loans. Subject to the terms and conditions of this Agreement,
during the Commitment Period, Agent shall make a Swing Loan or Swing Loans to
Borrowers in such
20
amount or amounts as Borrowers may from time to time request; provided that
Borrowers shall not request any Swing Loan hereunder if, after giving effect
thereto, (a) the Revolving Credit Exposure would exceed the Total Commitment
Amount, or (b) the Swing Line Exposure would exceed the Swing Line Commitment.
Each Swing Loan shall be due and payable on the Swing Loan Maturity Date
applicable thereto. Borrowers shall not request that more than two Swing Loans
be outstanding at any time.
Borrowers shall pay interest, for the sole benefit of Agent (and any Bank
that has purchased a participation in such Swing Loan), on the unpaid principal
amount of each Swing Loan outstanding from time to time from the date thereof
until paid at the Derived Swing Loan Rate applicable to such Swing Loan.
Interest on each Swing Loan shall be payable on the Swing Loan Maturity Date
applicable thereto. Each Swing Loan shall bear interest for a minimum of one
day.
The obligation of Borrowers to repay the Swing Loans and to pay interest
thereon shall be evidenced by a Swing Line Note of Borrowers substantially in
the form of Exhibit B hereto, dated the Closing Date, and payable to the order
of Agent in the principal amount of the Swing Line Commitment, or, if less, the
aggregate unpaid principal amount of Swing Loans made hereunder by Agent.
Subject to the provisions of this Agreement, Borrowers shall be entitled under
this Section 2.1B to borrow funds, repay the same in whole or in part and
reborrow hereunder at any time and from time to time during the Commitment
Period.
If Agent so elects, by giving notice to Borrowers and the Banks, Borrowers
agree that Agent shall have the right, in its sole discretion, to require that
any Swing Loan be refinanced as a Revolving Loan. Such Revolving Loan shall be a
Base Rate Loan unless and until converted by Borrowers to a LIBOR Loan pursuant
Section 2.1A and Section 2.2 hereof. Upon receipt of such notice by Borrowers,
Borrowers shall be deemed, on such day, to have requested a Revolving Loan in
the principal amount of the Swing Loan in accordance with Section 2.1A and
Section 2.2 hereof. Each Bank agrees to make a Revolving Loan on the date of
such notice, subject to no conditions precedent whatsoever. Each Bank
acknowledges and agrees that such Bank's obligation to make a Revolving Loan
pursuant to Section 2.1A when required by this Section 2.1B is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the occurrence and continuance of a Default or
Event of Default, and that its payment to Agent, for the account of Agent, of
the proceeds of such Revolving Loan shall be made without any offset, abatement,
recoupment, counterclaim, withholding or reduction whatsoever and whether or not
such Bank's Revolving Credit Commitment shall have been reduced or terminated.
Borrowers irrevocably authorize and instruct Agent to apply the proceeds of any
borrowing pursuant to this paragraph to repay in full such Swing Loan.
If, for any reason, Agent is unable to or, in the opinion of Agent, it is
impracticable to, convert any Swing Loan to a Revolving Loan pursuant to the
preceding paragraph, then on any day that a Swing Loan is outstanding (whether
before or after the maturity thereof), Agent shall have the right to request
that each Bank purchase a participation in such Swing Loan, and Agent shall
promptly notify each Bank thereof (by facsimile or telephone, confirmed in
writing). Upon such notice, but without further action, Agent hereby agrees to
grant to each Bank, and each Bank hereby agrees to acquire from Agent, an
undivided participation interest in such Swing
21
Loan in an amount equal to such Bank's Commitment Percentage of the aggregate
principal amount of such Swing Loan. In consideration and in furtherance of the
foregoing, each Bank hereby absolutely and unconditionally agrees, upon receipt
of notice as provided above, to pay to Agent, for its sole account, such Bank's
ratable share of such Swing Loan (determined in accordance with such Bank's
Commitment Percentage). Each Bank acknowledges and agrees that its obligation to
acquire participations in Swing Loans pursuant to this Section 2.1B is absolute
and unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the occurrence and continuance of a Default or an
Event of Default, and that each such payment shall be made without any offset,
abatement, recoupment, counterclaim, withholding or reduction whatsoever and
whether or not such Bank's Revolving Credit Commitment shall have been reduced
or terminated. Each Bank shall comply with its obligation under this Section
2.1B by wire transfer of immediately available funds, in the same manner as
provided in Section 2.2 hereof with respect to Revolving Loans to be made by
such Bank.
C. Letters of Credit. Subject to the terms and conditions of this
Agreement, during the Commitment Period, the Fronting Bank shall, in its own
name, on behalf of the Banks, issue such Letters of Credit for the account of
Borrowers or a Guarantor of Payment, as Borrowers may from time to time request.
Borrowers shall not request any Letter of Credit (and the Fronting Bank shall
not be obligated to issue any Letter of Credit) if, after giving effect thereto,
(a) the Letter of Credit Exposure would exceed the Letter of Credit Commitment,
or (b) the Revolving Credit Exposure would exceed the Total Commitment Amount.
The issuance of each Letter of Credit shall confer upon each Bank the benefits
and liabilities of a participation consisting of an undivided pro rata interest
in the Letter of Credit to the extent of such Bank's Commitment Percentage.
Each request for a Letter of Credit shall be delivered by the Treasury
Manager to Agent (and the Fronting Bank if the Fronting Bank is a Bank other
than Agent) not later than 11:00 A.M. (Cleveland, Ohio time) three Business Days
prior to the day upon which the Letter of Credit is to be issued. Each such
request shall be in a form acceptable to Agent and specify the face amount
thereof, the account party, the beneficiary, the intended date of issuance, the
expiry date thereof, and the nature of the transaction to be supported thereby.
Upon request of the Treasury Manager, any Letter of Credit may provide that it
is to be governed by the laws of the State of New York. Concurrently with each
such request, Borrowers, and any Guarantor of Payment for whose account the
Letter of Credit is to be issued, shall execute and deliver to the Fronting Bank
an appropriate application and agreement, being in the standard form of the
Fronting Bank for such letters of credit, as amended to conform to the
provisions of this Agreement if required by Agent. Agent shall give the Fronting
Bank and each Bank prompt notice of each such request for a Letter of Credit.
In respect of each Letter of Credit and the drafts thereunder, if any,
whether issued for the account of a Borrower or Guarantor of Payment, Borrowers
agree (a) to pay to Agent, for the pro rata benefit of the Banks, a
non-refundable commission based upon the face amount of the Letter of Credit,
which shall be paid quarterly in arrears, on the last day of each succeeding
March, June, September and December of each year, at the rate of the Applicable
Margin (in effect on the date such payment is to be made) times the face amount
of the Letter of Credit; (b) to pay to Agent, for the benefit of the Fronting
Bank, an additional Letter of Credit fee, which shall be paid on each date that
such Letter of Credit shall be issued or renewed at the rate of one-eighth
22
percent (1/8 of 1%) of the face amount of such Letter of Credit; and (c) to pay
to the Fronting Bank, for its sole account, such other issuance, amendment,
negotiation, draw, acceptance, telex, courier, postage and similar transactional
fees as shall be generally charged by the Fronting Bank under its fee schedule
as in effect from time to time.
Whenever a Letter of Credit shall be drawn, Borrowers shall immediately
reimburse the Fronting Bank for the amount drawn. In the event that the amount
drawn shall not have been reimbursed by Borrowers within one Business Day of the
drawing of such Letter of Credit, at the sole option of the Fronting Bank,
Borrowers shall be deemed to have requested a Revolving Loan, subject to the
provisions of Section 2.1A, in the amount drawn. Each Bank agrees to make a
Revolving Loan on the date of notice from the Agent or the Fronting Bank,
subject to no conditions precedent whatsoever. Each Bank acknowledges and agrees
that its obligation to make a Revolving Loan pursuant to Section 2.1A hereof
when required by this Section 2.1C shall be absolute and unconditional and shall
not be affected by any circumstance whatsoever, including, without limitation,
the occurrence and continuance of a Default or Event of Default, and that its
payment to Agent, for the account of the Fronting Bank, of the proceeds of such
Revolving Loan shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever and whether or not such Bank's
Revolving Credit Commitment shall have been reduced or terminated. Borrowers
irrevocably authorize and instruct Agent to apply the proceeds of any borrowing
pursuant to this paragraph to reimburse, in full, the Fronting Bank for the
amount drawn on such Letter of Credit. Each such Revolving Loan shall be deemed
to be a Base Rate Loan unless otherwise requested by and available to Borrowers
hereunder. Each Bank is hereby authorized to record on its records relating to
its Loans such Bank's pro rata share of the amounts paid and not reimbursed on
the Letters of Credit.
If, for any reason, the Fronting Bank shall be unable to or, in the opinion
of Agent, it shall be impracticable to, convert any Letter of Credit to a
Revolving Loan pursuant to the preceding paragraph, the Fronting Bank shall have
the right to request that each Bank purchase a participation in the amount due
with respect to such Letter of Credit, and Agent shall promptly notify each Bank
thereof (by facsimile or telephone, confirmed in writing). Upon such notice, but
without further action, the Fronting Bank hereby agrees to grant to each Bank,
and each Bank hereby agrees to acquire from the Fronting Bank, an undivided
participation interest in the amount due with respect to such Letter of Credit
in an amount equal to such Bank's Commitment Percentage of the aggregate
principal amount of the amount due with respect to such Letter of Credit. In
consideration and in furtherance of the foregoing, each Bank hereby absolutely
and unconditionally agrees, upon receipt of notice as provided above, to pay to
the Fronting Bank such Bank's ratable share of the amount due with respect to
such Letter of Credit (determined in accordance with such Bank's Commitment
Percentage). Each Bank acknowledges and agrees that its obligation to acquire
participations in the amount due under any Letter of Credit that is drawn but
not reimbursed by Borrowers pursuant to this Section 2.1C shall be absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the occurrence and continuance of a Default or
Event of Default, and that each such payment shall be made without any offset,
abatement, recoupment, counterclaim, withholding or reduction whatsoever and
whether or not such Bank's Revolving Credit Commitment shall have been reduced
or terminated. Each Bank shall comply with its obligation under this Section
2.1C by wire transfer of immediately available funds, in the same manner as
provided in Section 2.2
23
with respect to Revolving Loans. Each Bank is hereby authorized to record on its
records such Bank's pro rata share of the amounts paid and not reimbursed on the
Letters of Credit.
Section 2.2. Conditions to Loans and Letters of Credit. The obligation of
the Banks to make a Loan, convert a LIBOR Loan or Base Rate Loan or continue a
LIBOR Loan, and of Agent to make any Swing Loan, and of the Fronting Bank to
issue any Letter of Credit, is conditioned, in the case of each borrowing,
conversion, continuation or issuance hereunder, upon:
(a) with respect to the making of the first Loan or the issuance of the
first Letter of Credit hereunder, all conditions precedent as listed in Article
IV hereof shall have been satisfied;
(b) with respect to (i) Base Rate Loans, receipt by Agent of a Notice of
Loan from the Treasury Manager, such notice to be received by 11:00 A.M.
(Cleveland, Ohio time) on the proposed date of borrowing or conversion, and (ii)
LIBOR Loans, receipt by Agent of a Notice of Loan from the Treasury Manager by
11:00 A.M. (Cleveland, Ohio time) three Business Days prior to the proposed date
of borrowing, conversion or continuation. Agent shall notify each Bank of the
date, amount and Interest Period (if applicable) promptly upon the receipt of
such notice, and, in any event, by 2:00 P.M. (Cleveland, Ohio time) on the date
such notice is received. On the date such Loan is to be made, each Bank shall
provide Agent, not later than 3:00 P.M. (Cleveland, Ohio time), with the amount
in federal or other immediately available funds, required of it. If Agent elects
to advance the proceeds of such Loan prior to receiving funds from such Bank,
Agent shall have the right, upon prior notice to the Treasury Manager, to debit
any account of Borrowers or otherwise receive from Borrowers, on demand, such
amount, in the event that such Bank fails to reimburse Agent in accordance with
this subsection. Agent shall also have the right to receive interest from such
Bank at the Federal Funds Effective Rate in the event that such Bank shall fail
to provide its portion of the Loan on the date requested and Agent elects to
provide such funds;
(c) with respect to Letters of Credit, satisfaction of the notice
provisions set forth in Section 2.1C hereof;
(d) with respect to Swing Loans, receipt by Agent of a Notice of Loan from
the Treasury Manager, such notice to be received by 11:00 A.M. (Cleveland, Ohio
time) on the proposed date of borrowing;
(e) Borrowers' request for (i) a Base Rate Loan shall be in an amount of
not less than Five Hundred Thousand Dollars ($500,000), increased by increments
of One Hundred Thousand Dollars ($100,000), (ii) a LIBOR Loan shall be in an
amount of not less than Five Million Dollars ($5,000,000), increased by
increments of One Million Dollars ($1,000,000), and (iii) a Swing Loan shall be
in an amount not less than One Hundred Thousand Dollars ($100,000), increased by
increments of Fifty Thousand Dollars ($50,000);
(f) the fact that no Default or Event of Default shall then exist or
immediately after the making, conversion or continuation of the Loan or issuance
of the Letter of Credit would exist; and
24
(g) the fact that each of the representations and warranties contained in
Article VI hereof shall be true and correct with the same force and effect as if
made on and as of the date of the making, conversion or continuation of such
Loan, or the issuance of the Letter of Credit, except to the extent that any
thereof expressly relate to an earlier date.
At no time shall the Treasury Manager request that LIBOR Loans be
outstanding for more than fifteen different Interest Periods at any time, and,
if Base Rate Loans are outstanding, then LIBOR Loans shall be limited to
fourteen different Interest Periods at any time.
Each request by the Treasury Manager for the making of a Loan, conversion
of a LIBOR Loan or Base Rate Loan or continuation of a LIBOR Loan, or the
issuance of a Letter of Credit hereunder shall be deemed to be a representation
and warranty by Borrowers as of the date of such request as to the facts
specified in (f) and (g) above.
Each request by the Treasury Manager or any Borrower for a LIBOR Loan shall
be irrevocable and binding on Borrowers and Borrowers shall indemnify Agent and
the Banks against any loss or expense incurred by Agent or the Banks as a result
of any failure by Borrowers to consummate such transaction including, without
limitation, any loss (including loss of anticipated profits) or expense incurred
by reason of liquidation or re-employment of deposits or other funds acquired by
the Banks to fund such LIBOR Loan. A certificate as to the amount of such loss
or expense submitted by the Banks to the Treasury Manager shall be conclusive
and binding for all purposes, absent manifest error.
Section 2.3. Treasury Manager.
(a) Appointment. Each Borrower hereby irrevocably designates and appoints
Magnum Management as the Treasury Manager to act as specified herein and in the
other Loan Documents. Each Borrower hereby irrevocably authorizes the Treasury
Manager, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers (including,
but not limited to, requesting a Loan or Letter of Credit for Borrowers
hereunder) and perform such duties as are expressly delegated to the Treasury
Manager by the terms of this Agreement and the other Loan Documents, together
with such other powers as are reasonably incidental thereto, with all such
actions by the Treasury Manager that purport to be on behalf of any Borrower
being sufficient, without any further action or authorization by any Borrower,
to bind all Borrowers. The Treasury Manager agrees to act as such upon the
conditions set forth in this Section. All actions of the Treasury Manager taken
in connection with the Loan Documents, whether so expressed or not, shall be
deemed to be on behalf of, and shall bind, all Borrowers.
(b) Reliance by Agent and the Banks. Agent and the Banks shall be entitled
to rely upon all statements, certificates, notices, consents, certificates,
affidavits, letters, cablegrams, telegrams, facsimile transmissions, electronic
transmissions, e-mails, telex or teletype messages, orders or other documents or
conversations furnished or made by the Treasury Manager pursuant to any of the
provisions of this Agreement or any of the other Loan Documents, or otherwise in
connection with the transactions contemplated by the Loan Documents, as being
made or furnished on behalf of, and with the effect of irrevocably binding,
Borrowers, without any duty to ascertain or to inquire as to the authority of
the Treasury Manager in so doing.
25
(c) Successor Treasury Manager. The Treasury Manager may resign as the
Treasury Manager upon twenty (20) days prior written notice to Agent and the
Banks. Upon the resignation of the Treasury Manager pursuant to the preceding
sentence, Borrowers shall appoint from among themselves a successor Treasury
Manager for Borrowers who is willing to so act and who is acceptable to Agent,
whereupon such successor manager shall upon notice by Agent to the Banks,
succeed to the rights, powers and duties of the Treasury Manager, and the term
"Treasury Manager" shall include such successor manager effective upon its
appointment, and the resigning Treasury Manager's rights, powers and duties as
the Treasury Manager shall be terminated, without any other or further act or
deed on the part of such former Treasury Manager or any of the parties to this
Agreement. Notwithstanding anything in this Section to the contrary, the
resignation of a Treasury Manager pursuant to this Section shall not be
effective until a successor Treasury Manager shall have been appointed pursuant
to this Section.
Section 2.4. Liability of Borrowers.
(a) Joint and Several Liability. Each Borrower acknowledges and agrees that
Agent and the Banks are entering into this Agreement at the request of each
Borrower and with the understanding that each Borrower is and shall remain fully
liable, jointly and severally, for payment in full of the Debt. Each Borrower
agrees that it is receiving or will receive a direct pecuniary benefit for each
Loan made or Letter of Credit issued hereunder.
(b) Maximum Liability of Each Borrower. Anything in this Agreement or any
other Loan Document to the contrary notwithstanding, in no event shall the
maximum liability of any Subsidiary Borrower exceed the maximum amount that
(after giving effect to the incurring of the obligations hereunder and to any
rights to contribution of such Subsidiary Borrower from other affiliates of such
Subsidiary Borrower) would not render the rights to payment of Agent and the
Banks hereunder void, voidable or avoidable under any applicable fraudulent
transfer law.
Section 2.5. Additional Borrowers.
(a) At the request of Borrowers, a Subsidiary of Cedar Fair LP that shall
not then be a Borrower may become a Borrower hereunder, provided that all of the
following requirements shall have been met to the satisfaction of Agent: (i)
Borrowers shall have provided to Agent and the Banks a written request that such
Subsidiary be designated as a Borrower pursuant to the terms of this Agreement;
(ii) Agent and the Required Banks shall have consented, which consent shall be
in the sole discretion of Agent and the Required Banks, to the addition of such
Subsidiary as a Borrower under this Agreement, (iii) such Subsidiary shall be a
Wholly-Owned Subsidiary of Cedar Fair LP; (iv) each Guarantor of Payment shall
have guaranteed the obligations of such Subsidiary under this Agreement pursuant
to the terms of a Guaranty of Payment; (v) such Subsidiary shall have executed
an Assumption Agreement; (vi) such Subsidiary and the other Borrowers hereunder
shall have executed and delivered to each Bank such replacement Notes as Agent
shall deem appropriate, and (vii) Borrowers and such Subsidiary shall have
provided to Agent such corporate governance and authorization documents and an
opinion of counsel as may be deemed necessary or advisable by Agent.
(b) Upon satisfaction by Borrowers and any such Subsidiary of the
requirements set forth in subpart (a) above, Agent shall promptly notify
Borrowers and the Banks, whereupon
26
such Subsidiary shall be designated a "Borrower" pursuant to the terms and
conditions of this Agreement, and such Subsidiary shall become bound by all
representations, warranties, covenants, provisions and conditions of this
Agreement and each other Loan Document applicable to Borrowers as if such
Subsidiary had been the original party making such representations, warranties
and covenants.
Section 2.6. Payment of Loans.
(a) Payments by Borrowers. All payments of principal, interest, facility
and other fees shall be made to Agent in immediately available funds for the
account of Agent or the Banks, as the case may be. All payments made by
Borrowers hereunder shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever. All payments shall be
remitted to Agent at its main office not later than 11:00 A.M. (Cleveland, Ohio
time) on the due date thereof in immediately available funds. Any such payments
received by Agent after 11:00 A.M. (Cleveland, Ohio time) shall be deemed to
have been made and received on the next following Business Day.
(b) Payments Net of Taxes. All payments under this Agreement or any other
Loan Document by a Borrower or any other Obligor shall be made absolutely
without deduction or offset for, and altogether free and clear of, any and all
present and future taxes, levies, deductions, charges and withholdings and all
liabilities with respect thereto (other than taxes imposed on or measured by the
income of any Bank, or franchise taxes imposed on such Bank, by any jurisdiction
in which such Bank is organized or in which such Bank is resident or doing
business) under the laws of the United States of America or any foreign
jurisdiction (or any state or political subdivision thereof). If a Borrower or
other Obligor shall be compelled by law to deduct any such taxes or levies
(other than such excluded taxes) or to make any such other deductions, charges
or withholdings, then such Borrower or Obligor, as the case may be, shall pay
such additional amounts as may be necessary in order that the net payments after
such deduction, and after giving effect to any United States or foreign
jurisdiction (or any state or political subdivision thereof) income taxes
required to be paid by the Banks in respect of such additional amounts, shall
equal the amount of interest provided in Section 2.1 hereof for each Loan plus
any principal then due.
(c) Payments to Banks. Upon Agent's receipt of payments hereunder, Agent
shall immediately distribute to each Bank its ratable share, if any, of the
amount of principal, interest, and facility and other fees received by it for
the account of such Bank. Each Bank shall record any principal, interest or
other payment, the principal amounts of Base Rate Loans and LIBOR Loans, all
prepayments and the applicable dates, including Interest Periods, with respect
to the Loans made, and payments received by such Bank, by such method as such
Bank may generally employ; provided, however, that failure to make any such
entry shall in no way detract from the obligations of Borrowers under this
Agreement or any Note. The aggregate unpaid amount of Loans, types of Loans,
Interest Periods and similar information with respect to such Loans set forth on
the records of Agent shall be rebuttably presumptive evidence with respect to
such information, including the amounts of principal and interest owing to each
Bank.
(d) Timing of Payments. Whenever any payment to be made hereunder,
including, without limitation, any payment to be made with respect to any Loan,
shall be stated to be due on
27
a day that shall not be a Business Day, such payment shall be made on the next
succeeding Business Day and such extension of time shall in each case be
included in the computation of the interest payable with respect to any Loan;
provided, however, that, with respect to any LIBOR Loan, if the next succeeding
Business Day shall fall in the succeeding calendar month, such payment shall be
made on the preceding Business Day and the relevant Interest Period shall be
adjusted accordingly.
Section 2.7. Prepayment.
(a) Right to Prepay.
(i) Borrowers shall have the right, at any time or from time to time,
to prepay, on a pro rata basis for all of the Banks, all or any part of the
principal amount of the Revolving Loans then outstanding, as designated by
Borrowers, plus interest accrued on the amount so prepaid to the date of
such prepayment; and
(ii) Borrowers shall have the right, at any time or from time to time,
to prepay, for the benefit of Agent (and any Bank that has purchased a
participation in such Swing Loan), all or any part of the principal amount
of the Swing Loans then outstanding, as designated by Borrowers, plus
interest accrued on the amount so prepaid to the date of such prepayment.
(b) Prepayment Fees.
(i) Prepayments of Base Rate Loans shall be without any premium or
penalty;
(ii) In any case of prepayment of a LIBOR Loan, Borrowers agree to pay
to each Bank, upon demand therefor, for any resulting loss, cost (whether
voluntary or by acceleration or otherwise) or expense of such Bank as a
result thereof, including, without limitation, any loss incurred in
obtaining, liquidating or employing deposits. In addition, Borrowers shall
immediately pay directly to Agent or such Bank, the amount of any
additional costs or expenses incurred by Agent or such Bank in connection
with the prepayment, upon receipt by the Treasury Manager of a written
statement from Agent or such Bank therefor; and
(iii) In the case of prepayment of a Swing Loan, Borrowers agree to
pay to Agent, on demand, for any resulting loss, cost or expense of Agent
as a result thereof, including, without limitation, any loss incurred in
obtaining, liquidating or employing deposits.
(c) Notice of Prepayment. The Treasury Manager shall give Agent written
notice of prepayment of any Base Rate Loan by not later than 11:00 A.M.
(Cleveland, Ohio time) on the Business Day such prepayment is to be made and
written notice of the prepayment of any LIBOR Loan not later than 1:00 P.M.
(Cleveland, Ohio time) three Business Days prior to the Business Day on which
such prepayment is to be made. Each notice of prepayment by the Treasury Manager
or any Borrower for a LIBOR Loan shall be irrevocable and binding on Borrowers
and Borrowers shall indemnify Agent and the Banks against any loss or exposure
incurred by Agent or the Banks as a result of any failure by Borrowers to
consummate such
28
transaction including, without limitation, any loss (including loss of
anticipated profits) or expense incurred by reason of liquidation or
re-employment of deposits or other funds acquired by the Banks to fund such
LIBOR Loan. A certificate as to the amount of such loss or expense submitted by
the Banks to the Treasury Manager shall be conclusive and binding for all
purposes, absent manifest error.
(d) Minimum Amount. Each prepayment of a LIBOR Loan by Borrowers shall be
in the aggregate principal amount of not less than Five Million Dollars
($5,000,000), except in the case of a mandatory prepayment in connection with
Section 2.8(a)(i), Section 2.11 or Article III hereof.
Section 2.8. Modifications to Commitment.
(a) Seasonal Adjustment of Commitment.
(i) Seasonal Decrease in Commitment. On the first day of each Seasonal
Commitment Decrease Period, without notice of any kind to Borrowers, the
Total Commitment Amount shall automatically be reduced to the Seasonal
Reduced Commitment Amount. On such date the Maximum Amount for each Bank
shall be decreased to the amount set forth opposite such Bank's name under
the column headed "Maximum Amount during Seasonal Commitment Decrease
Period." On the date of each such reduction, Borrowers shall have prepaid
an aggregate amount of Loans, together with interest and facility and other
fees accrued and unpaid thereon, so that the Revolving Credit Exposure
shall not exceed the Total Commitment Amount as then in effect. The Total
Commitment Amount shall remain reduced pursuant to this subpart (i) during
the Seasonal Commitment Decrease Period unless and until increased pursuant
to subpart (ii) below.
(ii) Seasonal Increase in Commitment. So long as no Default or Event
of Default shall exist or immediately thereafter shall begin to exist, on
the first day after the last day of each Seasonal Commitment Decrease
Period, the Total Commitment Amount shall automatically be increased to the
Maximum Commitment Amount. On such date the Maximum Amount for each Bank
shall be increased to the amount set forth opposite such Bank's name under
the column headed "Maximum Amount other than during any Seasonal Commitment
Decrease Period." The Total Commitment Amount shall remain increased
pursuant to this subpart (ii) until decreased pursuant to subpart (i)
above.
(b) Voluntary Reduction of Commitment. Borrowers may at any time or from
time to time permanently reduce in whole or ratably in part the Commitment to an
amount not less than the then existing Revolving Credit Exposure, by giving
Agent not fewer than three Business Days' notice of such reduction, provided
that (i) any such partial reduction shall be in an aggregate amount for all of
the Banks of Five Million Dollars ($5,000,000), increased by increments of One
Million Dollars ($1,000,000), and (ii) any such partial reduction shall be
effective as to both the Maximum Commitment Amount and the Seasonal Reduced
Commitment Amount. Agent shall promptly notify each Bank of the date of such
reduction and such Bank's proportionate share thereof. After each such
reduction, the facility fees payable hereunder shall be calculated upon the
Total Commitment Amount as so reduced. If Borrowers reduce in whole
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the Commitment, on the effective date of such reduction (Borrowers having
prepaid in full the unpaid principal balance, if any, of the Loans, together
with all interest and facility and other fees accrued and unpaid and provided
that no Letter of Credit Exposure or Swing Line Exposure shall exist), all of
the Notes shall be delivered to Agent marked "Canceled" and Agent shall
redeliver such Notes to Borrowers. Any partial reduction in the amount of the
Commitment shall be effective during the remainder of the Commitment Period.
(c) Increase in Commitment. At any time prior to March 14, 2010, Borrowers
may request that Agent increase the Maximum Commitment Amount from the Closing
Commitment Amount to an amount not to exceed the Increased Maximum Commitment
Amount (with the understanding that the Seasonal Reduced Commitment Amount shall
be increased as well in an amount equal to the Additional Commitments) by either
(i) increasing, for one or more Banks, with their prior written consent, their
respective Revolving Credit Commitments, or (ii) including one or more
Additional Banks, each with a new Revolving Credit Commitment, as a party to
this Agreement (collectively, the "Additional Commitment"). The aggregate amount
of such Commitment increase request shall be in a minimum amount of Twenty
Million Dollars ($20,000,000). Each Additional Commitment of each Additional
Bank, if any, shall be in an amount of not less than Ten Million Dollars
($10,000,000). With the consent of the Agent and the Borrowers, one or more
Additional Commitments may be permitted upon satisfaction of the following
requirements: (A) each Additional Bank, if any, shall execute an Additional Bank
Assumption Agreement, (B) Agent shall provide to each Bank a revised Schedule 1
to this Agreement at least three Business Days prior to the effectiveness of
such Additional Commitments (each an "Assumption Effective Date"), and (C)
Borrowers shall execute and deliver to Agent and the Banks such replacement or
additional Revolving Credit Notes as shall be required by Agent. The Banks
hereby authorize Agent to execute each Additional Bank Assumption Agreement on
behalf of the Banks. On each Assumption Effective Date, the Banks shall make
adjustments among themselves with respect to the Revolving Loans then
outstanding and amounts of principal, interest, facility fees and other amounts
paid or payable with respect thereto as shall be necessary, in the opinion of
Agent, in order to reallocate among such Banks such outstanding amounts, based
on the revised Commitment Percentages and to otherwise carry out fully the terms
of this Section 2.8(c). Borrowers shall not request any increase in the
Commitment pursuant to this Section 2.8(c) if a Default or an Event of Default
shall then exist or immediately after giving effect to any such increase would
exist.
(d) Prepayment Fees. Any prepayment of a LIBOR Loan or Swing Loan in
connection with subparts (a) or (b) shall be subject to the prepayment fees set
forth in Section 2.7 hereof.
Section 2.9. Facility and Other Fees.
(a) Borrowers shall pay to Agent, for the ratable account of the Banks, as
a consideration for the Commitment, a facility fee from the date hereof to and
including the last day of the Commitment Period, at a rate per annum equal to
(i) the Applicable Facility Fee Rate in effect on the date that such facility
fee shall be due, times (ii) the average daily Total Commitment Amount in effect
during such quarter. The facility fee shall be payable quarterly in arrears, on
March 31, 2006 and on the last day of each succeeding June, September, December
and March thereafter, and on the last day of the Commitment Period.
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(b) Borrowers shall pay to Agent, for its sole benefit, the fees set forth
in the Agent Fee Letter.
Section 2.10. Computation of Interest and Fees; Default Rate. Interest on
Loans and facility and other fees and charges hereunder shall be computed on the
basis of a year having three hundred sixty (360) days and calculated for the
actual number of days elapsed. Anything herein to the contrary notwithstanding,
if an Event of Default shall occur hereunder, upon the election of the Required
Banks (a) the principal of each Loan and the unpaid interest thereon shall bear
interest, until paid, at the Default Rate; and (b) the fee for the aggregate
undrawn face amount of all issued and outstanding Letters of Credit shall be
increased by two percent (2%) in excess of the rate otherwise applicable
thereto. In no event shall the rate of interest hereunder exceed the maximum
rate allowable by law.
Section 2.11. Mandatory Payment.
(a) If, at any time, the Revolving Credit Exposure shall exceed the Total
Commitment Amount as then in effect, Borrowers shall, as promptly as
practicable, but in no event later than the next Business Day, prepay an
aggregate principal amount of the Loans sufficient to bring the Revolving Credit
Exposure within the Total Commitment Amount.
(b) If, at any time, the Swing Line Exposure shall exceed the Swing Line
Commitment, Borrowers shall, as promptly as practicable, but in no event later
than the next Business Day, prepay an aggregate principal amount of the Swing
Loans sufficient to bring the Swing Line Exposure within the Swing Line
Commitment.
(c) Unless otherwise designated by Borrowers, each prepayment pursuant to
Section 2.11(a) shall be applied in the following order (i) first, on a pro rata
basis among all of the outstanding Base Rate Loans, and (ii) second, on a pro
rata basis among all of the outstanding LIBOR Loans, provided that if the
outstanding principal amount of any LIBOR Rate Loan shall be reduced to an
amount less than the minimum amount set forth in Section 2.2 hereof as a result
of such prepayment, then such LIBOR Loan shall be converted into a Base Rate
Loan on the date of such prepayment. Any prepayment of a LIBOR Loan or Swing
Loan pursuant to this Section 2.11 shall be subject to the prepayment penalties
set forth in Section 2.7 hereof.
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR
LOANS; INCREASED CAPITAL; TAXES
Section 3.1. Reserves or Deposit Requirements, Etc. If, at any time, any
law, treaty or regulation (including, without limitation, Regulation D of the
Board of Governors of the Federal Reserve System) or the interpretation thereof
by any governmental authority charged with the administration thereof or any
central bank or other fiscal, monetary or other authority shall impose (whether
or not having the force of law), modify or deem applicable any reserve or
special deposit requirement (other than reserves included in the Eurocurrency
Reserve Percentage, the effect of which is reflected in the interest rate of the
LIBOR Loan in question) against assets held by, or deposits in or for the amount
of any LIBOR Loan by, any Bank, and the result of the foregoing is to increase
the cost (whether by incurring a cost or adding to a cost) to such Bank of
making or maintaining hereunder such LIBOR Loan or to reduce the amount of
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principal or interest received by such Bank with respect to such LIBOR Loan,
then, upon demand by such Bank, Borrowers shall pay to such Bank from time to
time on Interest Adjustment Dates with respect to such LIBOR Loan, as additional
consideration hereunder, additional amounts sufficient to fully compensate and
indemnify such Bank for such increased cost or reduced amount, assuming (which
assumption such Bank need not corroborate) such additional cost or reduced
amount was allocable to such LIBOR Loan. A certificate as to the increased cost
or reduced amount as a result of any event mentioned in this Section 3.1,
setting forth the calculations therefor, shall be promptly submitted by such
Bank to the Treasury Manager and shall, in the absence of manifest error, be
conclusive and binding as to the amount thereof. Notwithstanding any other
provision of this Agreement, after any such demand for compensation by any Bank,
the Treasury Manager, upon at least three Business Days' prior written notice to
such Bank through Agent, may cause Borrowers to prepay any affected LIBOR Loan
in full or convert such LIBOR Loan to a Base Rate Loan regardless of the
Interest Period thereof. Any such prepayment or conversion shall be subject to
the prepayment fees set forth in Section 2.7 hereof. Each Bank shall notify the
Treasury Manager as promptly as practicable (with a copy thereof delivered to
Agent) of the existence of any event that will likely require the payment by
Borrowers of any such additional amount under this Section.
Section 3.2. Tax Law, Etc. In the event that by reason of any law,
regulation or requirement or in the interpretation thereof by an official
authority, or the imposition of any requirement of any central bank whether or
not having the force of law, any Bank shall, with respect to this Agreement or
any transaction under this Agreement, be subjected to any tax, levy, impost,
charge, fee, duty, deduction or withholding of any kind whatsoever (other than
any tax imposed upon the total net income of such Bank) and if any such measures
or any other similar measure shall result in an increase in the cost to such
Bank of making or maintaining any LIBOR Loan or in a reduction in the amount of
principal, interest or commitment fee receivable by such Bank in respect
thereof, then such Bank shall promptly notify the Treasury Manager stating the
reasons therefor. Borrowers shall thereafter pay to such Bank, upon demand from
time to time on Interest Adjustment Dates with respect to such LIBOR Loan, as
additional consideration hereunder, such additional amounts as shall fully
compensate such Bank for such increased cost or reduced amount. A certificate as
to any such increased cost or reduced amount, setting forth the calculations
therefor, shall be submitted by such Bank to the Treasury Manager and shall, in
the absence of manifest error, be conclusive and binding as to the amount
thereof.
If any Bank shall receive such additional consideration from Borrowers
pursuant to this Section 3.2, such Bank shall use reasonable efforts to obtain
the benefits of any refund, deduction or credit for any taxes or other amounts
on account of which such additional consideration shall have been paid and shall
reimburse Borrowers to the extent, but only to the extent, that such Bank shall
receive a refund of such taxes or other amounts together with any interest
thereon or an effective net reduction in taxes or other governmental charges
(including any taxes imposed on or measured by the total net income of such
Bank) of the United States or any state or subdivision thereof by virtue of any
such deduction or credit, after first giving effect to all other deductions and
credits otherwise available to such Bank. If, at the time any audit of such
Bank's income tax return is completed, such Bank determines, based on such
audit, that it shall not have been entitled to the full amount of any refund
reimbursed to Borrowers as aforesaid or that its net income taxes shall not have
been reduced by a credit or deduction for the full amount of taxes reimbursed to
Borrowers as aforesaid, Borrowers, upon demand of such
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Bank, shall promptly pay to such Bank the amount so refunded to which such Bank
shall not have been so entitled, or the amount by which the net income taxes of
such Bank shall not have been so reduced, as the case may be.
Notwithstanding any other provision of this Agreement, after any such
demand for compensation by any Bank, the Treasury Manager, upon at least three
Business Days' prior written notice to such Bank through Agent, may cause
Borrowers to prepay any affected LIBOR Loan in full or convert such LIBOR Loan
to a Base Rate Loan regardless of the Interest Period of any thereof. Any such
prepayment or conversion shall be subject to the prepayment fees set forth in
Section 2.7 hereof.
Section 3.3. Eurodollar Deposits Unavailable or Interest Rate
Unascertainable. In respect of any LIBOR Loan, in the event that Agent shall
have determined that dollar deposits of the relevant amount for the relevant
Interest Period for such LIBOR Loan are not available to Agent in the applicable
eurodollar market or that, by reason of circumstances affecting such market,
adequate and reasonable means do not exist for ascertaining the LIBOR Rate
applicable to such Interest Period, as the case may be, Agent shall promptly
give notice of such determination to the Treasury Manager and (a) any notice of
a new LIBOR Loan (or conversion of an existing Loan to a LIBOR Loan) previously
given by the Treasury Manager and not yet borrowed (or converted, as the case
may be) shall be deemed to be a notice to make a Base Rate Loan, and (b)
Borrowers shall be obligated either to prepay, or to convert to a Base Rate
Loan, any outstanding LIBOR Loan on the last day of the then current Interest
Period with respect thereto.
Section 3.4. Indemnity. Without prejudice to any other provisions of this
Article III, Borrowers hereby agree to indemnify each Bank against any loss or
expense that such Bank may sustain or incur as a consequence of any default by
Borrowers in payment when due of any amount hereunder in respect of any LIBOR
Loan, including, but not limited to, any loss of profit, premium or penalty
incurred by such Bank in respect of funds borrowed by it for the purpose of
making or maintaining such LIBOR Loan, as determined by such Bank in the
exercise of its sole but reasonable discretion. A certificate as to any such
loss or expense shall be promptly submitted by such Bank to the Treasury Manager
and shall, in the absence of manifest error, be conclusive and binding as to the
amount thereof.
Section 3.5. Changes in Law Rendering LIBOR Loans Unlawful. If, at any
time, any new law, treaty or regulation, or any change in any existing law,
treaty or regulation, or any interpretation thereof by any governmental or other
regulatory authority charged with the administration thereof, shall make it
unlawful for any Bank to fund any LIBOR Loan that it shall be committed to make
hereunder with moneys obtained in the eurodollar market, the commitment of such
Bank to fund such LIBOR Loan shall, upon the happening of such event forthwith
be suspended for the duration of such illegality, and such Bank shall by written
notice to the Treasury Manager and Agent declare that its commitment with
respect to such LIBOR Loan shall have been so suspended and, if and when such
illegality shall cease to exist, such suspension shall cease and such Bank shall
similarly notify the Treasury Manager and Agent. If any such change shall make
it unlawful for any Bank to continue in effect the funding in the applicable
eurodollar market of any LIBOR Loan previously made by it hereunder, such Bank
shall, upon the happening of such event, notify the Treasury Manager, Agent and
the other Banks
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thereof in writing, stating the reasons therefor, and the Treasury Manager
shall, on the earlier of (a) the last day of the then current Interest Period or
(b) if required by such law, regulation or interpretation, on such date as shall
be specified in such notice, either convert such LIBOR Loan to a Base Rate Loan
or cause Borrowers to prepay such LIBOR Loan to the Banks in full. Any such
prepayment or conversion shall be subject to the prepayment fees described in
Section 2.7 hereof.
Section 3.6. Funding. Each Bank may, but shall not be required to, make
LIBOR Loans hereunder with funds obtained outside of the United States.
Section 3.7. Capital Adequacy. If any Bank shall have determined, after the
Closing Date, that the adoption of any applicable law, rule, regulation or
guideline regarding capital adequacy, or any change therein, or any change in
the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its lending office) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such authority, central bank or comparable agency, has or
would have the effect of reducing the rate of return on such Bank's capital (or
the capital of its holding company) as a consequence of its obligations
hereunder to a level below that which such Bank (or its holding company) could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's policies or the policies of its holding company with
respect to capital adequacy) by an amount deemed by such Bank to be material,
then from time to time, within fifteen (15) days after demand by such Bank (with
a copy to Agent), Borrowers shall pay to such Bank such additional amount or
amounts as shall compensate such Bank (or its holding company) for such
reduction. Each Bank shall designate a different lending office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Bank, be otherwise disadvantageous to such
Bank. A certificate of any Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to it hereunder shall
be conclusive in the absence of manifest error. In determining such amount, such
Bank may use any reasonable averaging and attribution methods. Failure on the
part of any Bank to demand compensation for any reduction in return on capital
with respect to any period shall not constitute a waiver of such Bank's rights
to demand compensation for any reduction in return on capital in such period or
in any other period. The protection of this Section shall be available to each
Bank regardless of any possible contention of the invalidity or inapplicability
of the law, regulation or other condition that shall have been imposed.
ARTICLE IV. CONDITIONS PRECEDENT
The obligation of the Banks to make the first Loan, of the Fronting Bank to
issue the first Letter of Credit and of Agent to make the first Swing Loan,
shall be subject to Borrowers satisfying each of the following conditions:
Section 4.1. Notes. Borrowers shall have executed and delivered to each
Bank that shall have requested a Revolving Credit Note its Revolving Credit Note
and shall have executed and delivered to Agent the Swing Line Note.
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Section 4.2. Guaranties of Payment of Debt. Each Guarantor of Payment shall
have executed and delivered to Agent a Guaranty of Payment of Debt.
Section 4.3. Intercreditor Agreement. The Intercreditor Agreement shall
have been executed by all parties thereto and delivered to Agent and the Banks.
Section 4.4. Officer's Certificate, Resolutions, Organizational Documents.
Each Borrower and Guarantor of Payment shall have delivered to Agent an
officer's certificate certifying the names of the officers of such Borrower or
Guarantor of Payment authorized to sign the Loan Documents, together with the
true signatures of such officers and certified copies of (a) the resolutions of
the board of directors of each Borrower and Guarantor of Payment evidencing
approval of the execution and delivery of the Loan Documents and the execution
of other Related Writings to which such Borrower or Guarantor of Payment, as the
case may be, is a party, and (b) the Organizational Documents of each Borrower
and Guarantor of Payment.
Section 4.5. Legal Opinion. Borrowers shall have delivered to Agent an
opinion of counsel for each Borrower and Guarantor of Payment, in form and
substance satisfactory to Agent and the Banks.
Section 4.6. Good Standing and Full Force and Effect Certificates.
Borrowers shall have delivered to Agent a good standing certificate or full
force and effect certificate, as the case may be, for each Borrower and
Guarantor of Payment, issued on or about the Closing Date by the Secretary of
State in the state where such Borrower or Guarantor of Payment is incorporated
or formed.
Section 4.7. Closing, Agent and Legal Fees. Borrowers shall have (a) paid
to Agent, for its sole account, the fees set forth in the Agent Fee Letter, (b)
paid to Agent, for the account of the Banks, the closing fees Borrowers have
agreed to pay to the Banks on the Closing Date, and (c) paid all legal fees and
expenses of Agent in connection with the preparation and negotiation of the Loan
Documents.
Section 4.8. Existing Credit Agreements. Borrowers shall have terminated
the Credit Agreement among Borrowers, the lenders named therein and KeyBank
National Association, as administrative agent, dated as of December 22, 2003, as
amended, which Credit Agreement shall be deemed to have been terminated upon
payment in full of all of the Indebtedness outstanding thereunder and
termination of the commitments established therein.
Section 4.9. Closing Certificate. Borrowers shall have delivered to Agent
and the Banks an officer's certificate certifying that, as of the Closing Date,
(a) all conditions precedent set forth in this Article IV have been satisfied,
(b) no Default or Event of Default exists nor immediately after the making of
the first Loan or the issuance of the first Letter of Credit will exist, and (c)
each of the representations and warranties contained in Article VI hereof are
true and correct as of the Closing Date.
Section 4.10. Note Agreements. Borrowers shall have delivered to Agent and
the Banks copies of the Prudential Note Agreements, the 2002 Note Agreements and
the 2003 Note Agreements (and all amendments and supplements thereto) certified
by an officer of Borrowers as being true and complete.
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Section 4.11. Amendment to Note Agreements. Borrowers and the Noteholders
shall have entered into an amendment to each of the Note Agreements, acceptable
to the Agent, pursuant to which the covenants in the Note Agreements are amended
to be consistent with the covenants in this Agreement, and such amendment to the
Note Agreements shall be in full force and effect as of the Closing Date.
Section 4.12. No Material Adverse Change. No material adverse change, in
the opinion of Agent, shall have occurred in the financial condition, operations
or prospects of the Companies since December 31, 2005.
Section 4.13. Miscellaneous. Borrowers shall have provided to Agent and the
Banks such other items and shall have satisfied such other conditions as may be
reasonably required by Agent or the Banks.
ARTICLE V. COVENANTS
Each Borrower agrees that, so long as the Commitment shall remain in effect
and thereafter until all of the Debt shall have been paid in full, Borrowers
shall perform and observe, and shall cause each other Company to perform and
observe, each of the following provisions:
Section 5.1. Insurance. Each Company shall (a) maintain insurance to such
extent and against such hazards and liabilities as is commonly maintained by
Persons similarly situated; and (b) within ten days of any Bank's written
request, furnish to such Bank such information about such Company's insurance as
that Bank may from time to time reasonably request, which information shall be
prepared in form and detail reasonably satisfactory to such Bank and certified
by a Financial Officer of such Company.
Section 5.2. Money Obligations. Each Company shall pay in full (a) prior in
each case to the date when penalties would attach, all taxes, assessments and
governmental charges and levies (except only those so long as and to the extent
that the same shall be contested in good faith by appropriate and timely
proceedings and for which adequate reserves have been established in accordance
with GAAP) for which it may be or become liable or to which any or all of its
properties may be or become subject; (b) all of its wage obligations to its
employees in compliance with the Fair Labor Standards Act (29 U.S.C. Sections
206-207) or any comparable provisions; and (c) all of its other obligations
calling for the payment of money (except only those so long as and to the extent
that the same shall be contested in good faith and for which adequate reserves
have been established in accordance with GAAP) before such payment becomes
overdue.
Section 5.3. Financial Statements. Borrowers shall furnish to Agent and the
Banks:
(a) within forty-five (45) days after the end of each of the first three
quarter-annual periods of each fiscal year of Cedar Fair LP, balance sheets of
Borrowers as of the end of such period and statements of income (loss),
partners' equity and cash flow for the quarter and trailing four quarters all
prepared on a Consolidated basis, in accordance with GAAP, and in form and
detail reasonably satisfactory to Agent and the Banks and certified by a
Financial Officer of Cedar Fair LP;
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(b) within ninety (90) days after the end of each fiscal year of Cedar Fair
LP, an annual audit report of Borrowers for that year prepared on a Consolidated
basis, in accordance with GAAP, and in form and detail reasonably satisfactory
to Agent and the Banks and certified by an independent public accountant
satisfactory to Agent, which report shall include balance sheets and statements
of income (loss), partners' equity and cash-flow for that period, together with
a certificate by the accountant setting forth the Defaults and Events of Default
coming to its attention during the course of its audit or, if none, a statement
to that effect;
(c) concurrently with the delivery of the financial statements set forth in
(a) and (b) above, a Compliance Certificate;
(d) as soon as available, copies of all notices, reports, definitive proxy
or other statements and other documents sent by Cedar Fair LP to its partners,
to the holders of any of its debentures or bonds or the trustee of any indenture
securing the same or pursuant to which they are issued, or sent by Cedar Fair LP
(in final form) to any securities exchange or over the counter authority or
system, or to the SEC or any similar federal agency having regulatory
jurisdiction over the issuance of any Borrower's securities; and
(e) within ten (10) days of Agent's or any Bank's written request, such
other information about the financial condition, properties and operations of
any Company as Agent or such Bank may from time to time reasonably request,
which information shall be submitted in form and detail reasonably satisfactory
to Agent or such Bank and certified by a Financial Officer of the Company or
Companies in question.
Section 5.4. Financial Records. Each Company shall at all times maintain
true and complete records and books of account, including, without limiting the
generality of the foregoing, appropriate reserves for possible losses and
liabilities, all in accordance with GAAP, and at all reasonable times (during
normal business hours and upon notice to such Company) permit Agent, or any
representative of Agent, to examine that Company's books and records and to make
excerpts therefrom and transcripts thereof.
Section 5.5. Franchises; Change in Business.
(a) Each Company shall preserve and maintain at all times its existence,
rights and franchises, except as otherwise permitted pursuant to Section 5.12
hereof.
(b) No Company shall engage in any business if, as a result thereof, the
general nature of the business of the Companies taken as a whole that would then
be engaged in by the Companies would be substantially changed from the general
nature of the business the Companies are engaged in on the Closing Date.
Section 5.6. ERISA Compliance. No Company shall incur any material
accumulated funding deficiency within the meaning of ERISA, or any material
liability to the PBGC, established thereunder in connection with any ERISA Plan.
Borrowers shall furnish to the Banks (a) as soon as possible and in any event
within thirty (30) days after any Company knows or has reason to know that any
Reportable Event with respect to any ERISA Plan has occurred, a statement of the
Financial Officer of such Company, setting forth details as to such Reportable
Event and the action that such Company proposes to take with respect thereto,
together with a
37
copy of the notice of such Reportable Event given to the PBGC if a copy of such
notice is available to such Company, and (b) promptly after receipt thereof a
copy of any notice such Company, or any member of the Controlled Group may
receive from the PBGC or the Internal Revenue Service with respect to any ERISA
Plan administered by such Company; provided, that this latter clause shall not
apply to notices of general application promulgated by the PBGC or the Internal
Revenue Service. Borrowers shall promptly notify the Banks of any material taxes
assessed, proposed to be assessed or that Borrowers have reason to believe may
be assessed against a Company by the Internal Revenue Service with respect to
any ERISA Plan. As used in this Section "material" means the measure of a matter
of significance that shall be determined as being an amount equal to five
percent (5%) of Consolidated Net Worth. As soon as practicable, and in any event
within twenty (20) days, after any Company shall become aware that an ERISA
Event shall have occurred, such Company shall provide Agent with notice of such
ERISA Event with a certificate by a Financial Officer of such Company setting
forth the details of the event and the action such Company or another Controlled
Group member proposes to take with respect thereto. Borrowers shall, at the
request of Agent or any Bank, deliver or cause to be delivered to Agent or such
Bank, as the case may be, true and correct copies of any documents relating to
the ERISA Plan of any Company.
Section 5.7. Financial Covenants.
(a) Leverage Ratio. The Companies shall not suffer or permit at any time
the Leverage Ratio to exceed 3.50 to 1.00.
(b) Interest Coverage Ratio. The Companies shall not suffer or permit at
any time the Interest Coverage Ratio to be less than 3.50 to 1.00.
(c) Consolidated Net Worth. The Companies shall not suffer or permit at any
time Consolidated Net Worth, for the most recently completed fiscal quarter of
Cedar Fair LP, to be less than Three Hundred Fifty Million Dollars
($350,000,000); provided, however, that notwithstanding the foregoing, (i) the
Companies shall not suffer or permit Consolidated Net Worth (A) for any fiscal
quarter of Cedar Fair LP ending on or about March 31 of any year to be less than
an amount equal to sixty percent (60%) of Consolidated Net Worth for the most
recently completed fiscal year of Cedar Fair LP, and (B) for any fiscal quarter
of Cedar Fair LP ending on or about June 30 of any year to be less an amount
equal to seventy percent (70%) of Consolidated Net Worth for the most recently
completed fiscal year of Cedar Fair LP; and (ii) the foregoing minimum amounts
shall be increased by an amount equal to one hundred percent (100%) of the net
proceeds of any equity offering by the Companies, or any debt offering of the
Companies, to the extent converted into equity.
Section 5.8. Borrowing. No Company shall create, incur or have outstanding
any obligation for borrowed money or any Indebtedness of any kind; provided,
that this Section shall not apply to:
(a) the Loans, Letters of Credit or any other Indebtedness under this
Agreement;
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(b) in addition to the other Indebtedness permitted to be incurred
pursuant to this Section, Indebtedness as set forth on Schedule 5.8 hereto
up to the maximum principal amount of such Indebtedness as set forth on
Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so
long as the maximum principal amount thereof shall not be increased after
the Closing Date);
(c) the unsecured Indebtedness and the guaranties thereof of the
Companies under the Note Agreements existing as of the Closing Date,
together with any renewal or refinancing of any such Indebtedness and any
additional Indebtedness incurred under the Note Agreements so long as (i)
the Companies shall be in compliance with the financial covenants set forth
in Section 5.7 hereof both immediately before and after giving pro forma
effect to the renewal, refinancing or incurrence of such Indebtedness, and
(ii) no Default or Event of Default shall then exist or immediately after
the renewal, refinancing or incurrence of such Indebtedness will exist;
(d) loans or capital leases to any Company for the purchase or lease
of fixed assets, which loans or leases are secured by the fixed assets
being purchased or leased, so long as the aggregate principal amount of all
such loans and leases for all Companies shall not exceed at any time an
amount equal to twenty percent (20%) of Consolidated Net Worth, based upon
the financial statements of the Companies for the most recently completed
fiscal quarter;
(e) Indebtedness of a Company under any Hedge Agreement, so long as
such Hedge Agreement shall have been entered in to in the ordinary course
of business and not for speculative purposes;
(f) loans to a Company from a Company so long as each such Company is
a Borrower or Guarantor of Payment; and
(g) additional unsecured Indebtedness of the Companies to the extent
not otherwise permitted pursuant to any of the foregoing subparts, so long
as (i) the Companies shall be in compliance with the financial covenants
set forth in Section 5.7 hereof both immediately before and after giving
pro forma effect to the incurrence of such Indebtedness, (ii) no Default or
Event of Default shall then exist or immediately after the incurrence of
such Indebtedness will exist, and (iii) if any such Indebtedness
constitutes Material Indebtedness, the final maturity date of such
Indebtedness shall be no earlier than the date that is ninety (90) days
after the last day of the Commitment Period unless such Indebtedness is
being provided by Agent or any of the Banks and their Affiliates.
Section 5.9. Liens. No Company shall create, assume or suffer to exist any
Lien upon any of its property or assets, whether now owned or hereafter
acquired; provided that this Section shall not apply to the following:
(a) Liens for taxes not yet due or that are being actively contested in
good faith by appropriate proceedings and for which adequate reserves have been
established in accordance with GAAP;
39
(b) other statutory Liens incidental to the conduct of its business or the
ownership of its property and assets that (i) were not incurred in connection
with the borrowing of money, and (ii) do not in the aggregate materially detract
from the value of its property or assets or materially impair the use thereof in
the operation of its business;
(c) Liens on property or assets of a Subsidiary to secure obligations of
such Subsidiary to a Borrower or a Guarantor of Payment;
(d) easements or other minor defects or irregularities in title of real
property not interfering in any material respect with the use of such property
in the business of any Company;
(e) the Liens existing on the Closing Date as set forth in Schedule 5.9
hereto;
(f) any Lien granted to Agent, for the benefit of the Banks;
(g) Liens on fixed assets securing the loans or capital leases pursuant to
Section 5.8(d) hereof, provided that such Lien only attaches to the property
being acquired or leased; or
(h) any Lien on fixed assets owned by a Company as a result of an
Acquisition permitted pursuant to Section 5.13 hereof, so long as (i) such Lien
is released within one hundred eighty (180) days of such Acquisition (unless
Borrowers shall have obtained the prior written consent of Agent and the
Required Banks or such Lien is otherwise permitted pursuant to another subpart
of this Section 5.9), and (ii) such Lien was not created at the time of or in
contemplation of such Acquisition.
No Company shall enter into any contract or agreement that would prohibit
Agent or the Banks from acquiring a security interest, mortgage or other Lien
on, or a collateral assignment of, any of the property or assets of a Company,
other than the Note Agreements.
Section 5.10. Regulations U and X. No Company shall take any action that
would result in any non-compliance of the Loans with Regulations U and X, or any
other applicable regulation, of the Board of Governors of the Federal Reserve
System.
Section 5.11. Investments and Loans. No Company shall, without the prior
written consent of Agent and the Required Banks, (a) create, acquire or hold any
Subsidiary, (b) make or hold any investment in any stocks, bonds or securities
of any kind, (c) be or become a party to any joint venture or other partnership,
(d) make or keep outstanding any advance or loan to any Person, or (e) be or
become a Guarantor of any kind; provided, that this Section shall not apply to:
(1) any endorsement of a check or other medium of payment for
deposit or collection through normal banking channels or similar
transaction in the normal course of business;
(2) any investment in Cash Equivalents;
40
(3) the holding of each of the Subsidiaries listed on Schedule
6.1 hereto, and the creation, acquisition and holding of any new Subsidiary
after the Closing Date so long as such new Subsidiary shall have been
created, acquired or held in accordance with the terms and conditions of
this Agreement;
(4) any investment by a Company in another Company so long as (A)
such Company shall not be a Foreign Subsidiary, and (B) such Company shall
be a Borrower or Guarantor of Payment (if required pursuant to Section 5.19
hereof);
(5) loans to a Company from a Company so long as each such
Company is a Borrower or Guarantor of Payment;
(6) guarantees only for Indebtedness of the Companies incurred or
permitted pursuant to this Agreement, but only so long as the Companies
shall be in compliance with the terms and conditions of Section 5.22
hereof;
(7) any advance or loan to an officer or employee of a Company
made in the ordinary course of such Company's business, so long as all such
advances and loans from all Companies aggregate not more than the maximum
principal sum of One Million Dollars ($1,000,000) at any time outstanding;
or
(8) any Permitted Investment, so long as no Default or Event of
Default shall then exist or would result therefrom.
Section 5.12. Merger and Sale of Assets. No Company shall merge or
consolidate with any other Person, or sell, lease or transfer or otherwise
dispose of any assets to any Person other than in the ordinary course of
business, except that, if no Default or Event of Default shall then exist or
immediately thereafter shall begin to exist:
(a) any Subsidiary may merge with (i) a Borrower (provided that such
Borrower shall be the continuing or surviving Person and provided further that
if Cedar Fair LP merges with any other Borrower then Cedar Fair LP shall be the
continuing or surviving Person) or (ii) any one or more Guarantors of Payment,
provided that either (A) the continuing or surviving Person shall be a
Wholly-Owned Subsidiary that shall be a Guarantor of Payment, or (B) after
giving effect to any merger pursuant to this sub-clause (ii), a Borrower and/or
one or more Wholly-Owned Subsidiaries which shall be Guarantors of Payment shall
own not less than the same percentage of the outstanding Voting Power of the
continuing or surviving Person as such Borrower and/or one or more Wholly-Owned
Subsidiaries (which shall be Guarantors of Payment) owned of the merged
Subsidiary immediately prior to such merger;
(b) any Subsidiary may sell, lease, transfer or otherwise dispose of any of
its assets to (i) a Borrower, (ii) any Wholly-Owned Subsidiary that shall be a
Guarantor of Payment, or (iii) any Guarantor of Payment, of which a Borrower
and/or one or more Wholly-Owned Subsidiaries, which shall be Guarantors of
Payment, shall own not less than the same percentage of Voting Power as a
Borrower and/or one or more Wholly-Owned Subsidiaries (which shall be Guarantors
of Payment) then own of the Subsidiary making such sale, lease, transfer or
other disposition; and
41
(c) in addition to any sale, lease, transfer or other disposition permitted
pursuant to subpart (b) above, any Company may sell, lease, transfer or
otherwise dispose of any of its assets to any Person so long as (i) the
consideration paid in connection with such transaction represents fair value (as
determined by the board of directors of such Company), and at least ninety
percent (90%) of such consideration consists of cash, (ii) the aggregate amount
of all such assets sold, lease transferred or otherwise disposed of by all
Companies during any fiscal year shall not exceed an amount equal to ten percent
(10%) of Consolidated Net Assets based upon the financial statements of the
Companies for the most recently completed fiscal quarter, and (iii) with respect
to any such transaction involving consideration in excess of Ten Million Dollars
($10,000,000), at least five Business Days prior to the date of completion of
such transaction the applicable Company shall have delivered to Agent an
officer's certificate, executed by Financial Officer of such Company, which
certificate shall contain a description of the proposed transaction, the date
that such transaction is scheduled to be consummated, the estimated purchase
price or other consideration to be received in connection with such transaction,
financial information pertaining to compliance with subparts (i) and (ii) above,
and such other information regarding such transaction as Agent may request.
Section 5.13. Acquisitions. No Company shall effect any Acquisition;
provided, however, that a Borrower or Guarantor of Payment may effect an
Acquisition so long as: (a) such Borrower or Guarantor of Payment, as the case
may be, shall be the surviving entity in the case of a merger or other
combination; (b) the business to be acquired shall be similar to the lines of
business of the Companies; (c) the Companies shall be in full compliance with
the Loan Documents both prior to and subsequent to the transaction; and (d) with
respect to any Acquisition in which the Consideration shall be in excess of
Twenty Million Dollars ($20,000,000), Borrowers shall have provided to Agent and
the Banks, at least five days prior to such Acquisition, historical financial
statements of the target entity and a pro forma financial statement of the
Companies accompanied by a certificate of a Financial Officer of Cedar Fair LP
showing pro forma compliance with Section 5.7 hereof, both before and after the
proposed Acquisition.
Section 5.14. Notices.
(a) Each Borrower shall cause a Financial Officer of such Borrower to
promptly notify Agent and the Banks whenever any Default or Event of Default has
occurred or may occur hereunder or any representation or warranty made in
Article VI hereof or elsewhere in this Agreement or in any Related Writing may
for any reason cease in any material respect to be true and complete.
(b) Each Borrower shall cause a Financial Officer of such Borrower to
promptly notify Agent and the Banks whenever any event or condition has occurred
that has resulted in, or is reasonably like to have, a Material Adverse Effect.
(c) Each Borrower shall cause a Financial Officer of such Borrower to
promptly notify Agent and the Banks whenever any default or event of default
shall have occurred under any Note Agreement or whenever any Company shall
receive a notice of default, or other similar notice, under any Note Agreement.
42
Section 5.15. Environmental Compliance. Each Company shall comply in all
material respects with any and all Environmental Laws including, without
limitation, all Environmental Laws in jurisdictions in which any Company owns or
operates a facility or site, arranges for disposal or treatment of hazardous
substances, solid waste or other wastes, accepts for transport any hazardous
substances, solid waste or other wastes or holds any interest in real property
or otherwise. Borrowers shall furnish to the Banks, promptly after receipt
thereof, a copy of any notice any Company may receive from any governmental
authority or private Person or otherwise that any material litigation or
proceeding pertaining to any environmental, health or safety matter has been
filed or is threatened against such Company, any real property in which such
Company holds any interest or any past or present operation of such Company. No
Company shall allow the release or disposal of hazardous waste, solid waste or
other wastes on, under or to any real property in which any Company holds any
interest or performs any of its operations, in violation of any Environmental
Law. As used in this Section, "litigation or proceeding" means any demand,
claim, notice, suit, suit in equity action, administrative action, investigation
or inquiry whether brought by any governmental authority or private Person or
otherwise. Borrowers shall defend, indemnify and hold Agent and the Banks
harmless against all costs, expenses, claims, damages, penalties and liabilities
of every kind or nature whatsoever (including attorneys' fees) arising out of or
resulting from the noncompliance of any Company with any Environmental Law. Such
indemnification shall survive any termination of this Agreement.
Section 5.16. Affiliate Transactions. No Company shall, or shall permit any
Subsidiary to, directly or indirectly, enter into or permit to exist any
transaction (including, without limitation, the purchase, sale, lease or
exchange of any property or the rendering of any service) with any Affiliate of
a Company on terms that shall be less favorable to such Company or such
Subsidiary, as the case may be, than those that might be obtained at the time in
a transaction with a non-Affiliate; provided, however, that the foregoing shall
not prohibit (a) the payment of customary and reasonable directors' fees to
directors who are not employees of a Company or any Affiliate of a Company, or
(b) any transaction between a Borrower and an Affiliate (if a Borrower or
Guarantor of Payment) that such Borrower reasonably determines in good faith is
beneficial to such Borrower and its Affiliates as a whole and that shall not be
entered into for the purpose of hindering the exercise by Agent or the Banks of
their rights or remedies under this Agreement.
Section 5.17. Use of Proceeds. Borrowers' use of the proceeds of the Loans
shall be used to refinance the existing revolving credit facility that matures
on March 31, 2007 and for working capital and other general corporate purposes
of Borrowers and their Subsidiaries.
Section 5.18. Corporate Names. No Borrower shall change its corporate name
or its state of organization, unless, in each case, Borrowers shall have
provided Agent and the Banks with at least thirty (30) days prior written notice
thereof.
Section 5.19. Subsidiary Guaranties. Each Subsidiary of a Company created,
acquired or held subsequent to the Closing Date, shall immediately execute and
deliver to Agent a Guaranty of Payment of all of the Debt, such agreement to be
in form and substance acceptable to Agent and the Required Banks, along with
such corporate governance and authorization documents and an opinion of counsel
as may be deemed necessary or advisable by Agent and the
43
Required Banks; provided, however, that (a) a Subsidiary shall not be required
to execute such Guaranty of Payment so long as (i) the total assets of such
Subsidiary shall be less than the amount of One Million Dollars ($1,000,000),
and (ii) the aggregate of the total assets of all such Subsidiaries with total
asset values of less than One Million Dollars ($1,000,000) shall not exceed the
aggregate amount of Three Million Dollars ($3,000,000), and (b) a Foreign
Subsidiary shall not be required to execute a Guaranty of Payment to the extent
that such Guaranty of Payment will result in adverse tax consequences for
Borrowers (provided that Borrowers shall provide to the Banks a pledge of
two-thirds of the stock of such Foreign Subsidiary if required by Agent and the
Required Banks). In the event that the total assets of any Subsidiary that shall
not be a Guarantor of Payment shall be at any time equal to or greater than One
Million Dollars ($1,000,000), Borrowers shall provide Agent and the Banks with
prompt written notice of such asset value.
Section 5.20. Restrictive Agreements. Except as set forth in this
Agreement, Borrowers shall not, and shall not permit any of their Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (a) make, directly or indirectly, any Capital Distribution to Borrowers, (b)
make, directly or indirectly, loans or advances or capital contributions to
Borrowers or (c) transfer, directly or indirectly, any of the properties or
assets of such Subsidiary to Borrowers; except for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) customary
non-assignment provisions in leases or other agreements entered in the ordinary
course of business and consistent with past practices, or (iii) customary
restrictions in security agreements or mortgages securing Indebtedness of a
Company, or capital leases, of a Company to the extent such restrictions shall
only restrict the transfer of the property subject to such security agreement,
mortgage or lease.
Section 5.21. Other Covenants. In the event that any Borrowers shall enter
into, or shall have entered into, any Material Indebtedness Agreement, wherein
the covenants and agreements contained therein shall be more restrictive than
the covenants set forth herein, then Borrowers shall be bound hereunder by such
covenants and agreements with the same force and effect as if such covenants and
agreements were written herein.
Section 5.22. Guaranty Under Material Indebtedness Agreement. No Company
shall be or become a Guarantor of the Indebtedness incurred pursuant to any Note
Agreement or any other Material Indebtedness Agreement unless such Company shall
also be a Guarantor of Payment under this Agreement prior to or concurrently
therewith.
Section 5.23. Pari Passu Ranking. The Debt shall, and Borrowers shall take
all necessary action to ensure that the Debt shall, at all times, rank at least
pari passu in right of payment with all other senior unsecured Indebtedness of
each Borrower.
Section 5.24. Note Agreements. Borrowers shall not, without the prior
written consent of Agent and the Required Banks, amend, restate, supplement or
otherwise modify any Note Agreement to (a) increase the principal amount
outstanding thereunder, unless the amount of such increase shall be permitted
pursuant to Section 5.8 hereof, (b) change the date of any principal or interest
payment to an earlier date, or (c) otherwise modify any provision such that a
Default or Event of Default will exist.
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Section 5.25. Limitations on Funded Debt.
(a) Notwithstanding anything in Section 5.8 to the contrary, no Company
will create, issue, assume, guarantee or otherwise incur or in any manner be or
become liable in respect of any Funded Debt, except:
(i) Funded Debt incurred pursuant to Sections 5.8(a) through 5.8(f)
hereof; and
(ii) additional Funded Debt of any Company; provided, that at the time
of creation, issuance, assumption, guarantee or incurrence thereof and
after giving effect thereto and to the application of the proceeds thereof:
(1) the ratio of (A) Consolidated Funded Debt to (B) Consolidated
Operating Cash Flow for the immediately preceding four fiscal quarter
period shall not exceed 3.25 to 1.00; and
(2) no Default or Event of Default exists or will exist after
giving effect thereto.
(b) The renewal, extension or refunding of any Funded Debt, issued,
incurred or outstanding pursuant to Section 5.25(a) shall constitute the
issuance of additional Funded Debt which is, in turn, subject to the limitations
of the applicable provisions of this Section 5.25.
For purposes of this Section 5.25, the following terms shall have the
meanings specified with respect thereto below.
"Capitalized Lease" means any lease the obligation for Rentals with respect
to which is required to be capitalized on a consolidated balance sheet of the
lessee and its subsidiaries in accordance with GAAP.
"Capitalized Rentals" of any Person means as of the date of any
determination thereof the amount at which the aggregate Rentals due and to
become due under all Capitalized Leases under which such Person is a lessee
would be reflected as a liability on a consolidated balance sheet of such
Person.
"Consolidated Funded Debt" means, without duplication, (a) all Funded Debt
of the Companies, determined on a consolidated basis eliminating intercompany
items and (b) all Current Debt of the Companies, determined on a consolidated
basis eliminating intercompany items measured at the lowest aggregate principal
amount of Current Debt outstanding during any period of 10 consecutive days
within the 365 days immediately preceding the date of any determination
hereunder.
"Consolidated Interest Expense" means all Interest Expense of the Companies
for any period after eliminating intercompany items.
"Consolidated Net Earnings" means, with reference to any period and without
duplication, the net earnings (or loss) of the Companies for such period (taken
as a cumulative
45
whole), as determined in accordance with GAAP, after eliminating (a)
extraordinary gains and losses and (b) net earnings of any business entity
(other than a Company) in which the Companies have an ownership interest unless
such net earnings shall have actually been received by the Companies in the form
of cash distributions.
"Consolidated Operating Cash Flow" for any period means the total of (a)
(i) Consolidated Net Earnings during such period, plus (to the extent deducted
in determining Consolidated Net Earnings), (ii) all provisions for any federal,
state or local income taxes made by the Companies during such period, plus all
provisions for depreciation and amortization (other than amortization of debt
discount) made by the Companies during such period, plus Consolidated Interest
Expense during such period, plus other non-recurring (with the understanding
that unit option expense shall not constitute a recurring event) non-cash losses
and charges minus (b)(i) gains on sales of assets (excluding sales in the
ordinary course of business) and (ii) other non-recurring (with the
understanding that unit option credits shall not constitute a recurring event)
non-cash gains. For purposes of any determination of Consolidated Operating Cash
Flow pursuant to Section 5.25(a), the Companies may include "consolidated
operating cash flow" (determined in a manner consistent with the definition of
"Consolidated Operating Cash Flow" contained in this Agreement), on a pro forma
basis, which were earned in the immediately preceding four fiscal quarter period
by any business entity actually acquired by the Companies during such period,
provided that concurrently with such determination, the Companies shall have
furnished to Agent audited financial statements (if the Companies are required
pursuant to Regulation S-X to prepare audited financial statements in connection
with such acquisition) and other financial information with respect to such
business entity demonstrating to the reasonable satisfaction of Agent the basis
for the inclusion and computations of such "consolidated operating cash flow".
"Current Debt" of any Person means as of the date of any determination
thereof (a) all Indebtedness of such Person for borrowed money other than Funded
Debt of such Person, including all Revolver Debt of such Person, and (b)
Guaranties by such Person of Current Debt of others.
"Funded Debt" of any Person means, without limitation, (a) all Indebtedness
of such Person for borrowed money or which has been incurred in connection with
the acquisition of assets in each case having a final maturity of one or more
than one year from the date of origin thereof (or which is renewable or
extendible at the option of the obligor for a period or periods more than one
year from the date of origin), including all payments in respect thereof that
are required to be made within one year from the date of any determination of
Funded Debt, whether or not the obligation to make such payments shall
constitute a current liability of the obligor under GAAP, (b) all Capitalized
Rentals of such Person, and (c) all Guaranties by such Person of Funded Debt of
others; provided that, notwithstanding the maturity of such Indebtedness,
"Funded Debt" shall not include Revolver Debt of such Person but shall include
any term debt having a final maturity of one or more than one year regardless of
whether such term debt originally constituted, or was converted from, Revolver
Debt.
"Guaranty" means, with respect to any Person, any obligation (except the
endorsement in the ordinary course of business of negotiable instruments for
deposit or collection) of such
46
Person guaranteeing or in effect guaranteeing any Indebtedness, dividend or
other obligation of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations incurred through an
agreement, contingent or otherwise, by such Person:
(a) to purchase such Indebtedness or obligation or any property
constituting security therefor;
(b) to advance or supply funds (i) for the purchase or payment of such
Indebtedness or obligation, or (ii) to maintain any working capital or
other balance sheet condition or any income statement condition of any
other Person or otherwise to advance or make available funds for the
purchase or payment of such Indebtedness or obligations;
(c) to lease properties or to purchase properties or services
primarily for the purpose of assuring the owner of such Indebtedness or
obligation of the ability of any other Person to make payment of the
Indebtedness or obligation; or
(d) otherwise to assure the owner of such Indebtedness or obligation
against loss in respect thereof.
In any computation of Indebtedness or other liabilities of the obligor under any
Guaranty, the Indebtedness or other obligations that are the subject of such
Guaranty shall be assumed to be direct obligations of such obligor.
"Interest Expense" of the Companies for any period means all interest
(including the interest component on Rentals on Capitalized Leases) and all
amortization of debt discount and expense on any particular Indebtedness
(including, without limitation, payment-in-kind, zero coupon and other like
Securities) for which such calculations are being made. Computations of Interest
Expense on a pro forma basis for Indebtedness having a variable interest rate
shall be calculated at the rate in effect on the date of any determination.
"Rentals" means and include as of the date of any determination thereof all
fixed payments (including as such all payments which the lessee is obligated to
make to the lessor on termination of the lease or surrender of the property)
payable by any Company, as lessee or sublessee under a lease of real or personal
property, but shall be exclusive of any amounts required to be paid by any
Company (whether or not designated as rents or additional rents) on account of
maintenance, repairs, insurance, taxes and similar charges. Fixed rents under
any so-called "percentage leases" shall be computed solely on the basis of the
minimum rents, if any, required to be paid by the lessee regardless of sales
volume or gross revenues.
"Revolver Debt" means as of the date of any determination thereof all
Indebtedness of a Person under a revolving credit agreement which, by its terms,
permits the re-borrowing of amounts re-paid under such agreement, subject to
customary requirements.
"Security" has the meaning set forth in Section 2(1) of the Securities Act
of 1933.
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Section 5.26. Amendment of Organizational Documents. No Borrower shall
amend its Organizational Documents to change its state of organization or
formation or to otherwise make an amendment or other modification to its
Organizational Documents if such amendment or other modification would have a
material adverse effect on the rights and remedies of Agent and the Banks
hereunder.
Section 5.27. Anti-Terrorism Laws. No Company, or Affiliate of any Company
or agent of any Company, shall: (i) conduct any business or engage in any
transaction or dealing with any Blocked Person (as defined in Section 6.19
hereof), including the making or receiving of any contribution of funds, goods
or services to or for the benefit of any Blocked Person; (ii) deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to Executive Order No. 13224; or (iii) engage in on
conspire to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, any of the prohibitions set
forth in Executive Order No. 13224 or the USA Patriot Act. The Borrowers shall
deliver to Agent and Banks any certification or other evidence requested from
time to time by Agent or any Bank, in Agent's sole discretion, confirming
Borrowers' compliance with this Section 5.27.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants that the statements set forth in this
Article VI are true, correct and complete.
Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification.
(a) Each Company is an entity duly organized, validly existing, and in good
standing under the laws of its state or jurisdiction of incorporation or
organization and is duly qualified and authorized to do business and is in good
standing as a foreign entity in each jurisdiction where the character of its
property or its business activities makes such qualification necessary, except
where the failure to so qualify will not cause or result in a Material Adverse
Effect.
(b) Schedule 6.1 hereto sets forth (i) each Company, (ii) each Company's
state or jurisdiction of organization, (iii) each state or other jurisdiction in
which each Company is qualified to do business as a foreign entity, and (iv)
except with respect to Cedar Fair LP, each Person that owns the stock or other
equity interest of each Company.
Section 6.2. Corporate Authority. Each Borrower has the right and power and
is duly authorized and empowered to enter into, execute and deliver the Loan
Documents to which it is a party and to perform and observe the provisions of
the Loan Documents. The Loan Documents to which each Borrower is a party have
been duly authorized and approved by such Borrower's Board of Directors (or
partners or equivalent governing body) and are the valid and binding obligations
of such Borrower, enforceable against such Borrower in accordance with their
respective terms, except as may be limited by applicable bankruptcy, insolvency,
moratorium, reorganization or similar laws from time to time in effect that
affect creditors' rights generally and legal and equitable limitations on the
availability of specific remedies. The execution, delivery and performance of
the Loan Documents will not conflict with nor result in any breach in any of the
provisions of, or constitute a default under, any laws or regulations or under
the
48
provisions of such Company's Organizational Documents or any agreement or result
in the creation of any Lien (other than Liens permitted under Section 5.9 of
this Agreement) upon any assets or property of any Company.
Section 6.3. Compliance With Laws. Each Company:
(a) holds permits, certificates, licenses, orders, registrations,
franchises, authorizations, and other approvals from federal, state, local, and
foreign governmental and regulatory bodies necessary for the conduct of its
business and is in compliance with all applicable laws relating thereto, except
where the failure to do so would not have a Material Adverse Effect;
(b) is in compliance with all federal, state, local, or foreign applicable
statutes, rules, regulations, and orders including, without limitation, those
relating to environmental protection, occupational safety and health, and equal
employment practices, except where the failure to do so would not have a
Material Adverse Effect; and
(c) is not in violation of or in default under any agreement to which it is
a party or by which its assets are subject or bound, except to the extent that
any such violation or default would not have a Material Adverse Effect.
Section 6.4. Litigation and Administrative Proceedings. Except as disclosed
on Schedule 6.4 hereto, there are (a) no lawsuits, actions, investigations, or
other proceedings pending or, to the knowledge of each Company, threatened
against any Company, or in respect of which any Company may have any liability,
in any court or before any governmental authority, arbitration board, or other
tribunal, (b) no orders, writs, injunctions, judgments, or decrees of any court
or government agency or instrumentality to which any Company is a party or by
which the property or assets of any Company are bound, or (c) no grievances,
disputes, or controversies outstanding with any union or other organization of
the employees of any Company, or threats of work stoppage, strike, or pending
demands for collective bargaining, that, as to (a) through (c) above, if
violated or determined adversely, would have a Material Adverse Effect.
Section 6.5. Title to Assets. Each Company has good title to and ownership
of all property it purports to own, which property is free and clear of all
Liens, except those permitted under Section 5.9 hereof.
Section 6.6. Liens and Security Interests. On and after the Closing Date,
except for Liens permitted pursuant to Section 5.9 hereof, (a) there is no
financing statement outstanding covering any personal property of any Company;
(b) there is no mortgage outstanding covering any real property of any Company;
and (c) no real or personal property of any Company is subject to any security
interest or Lien of any kind other than any security interest or Lien which may
be granted to Agent on behalf of the Banks. No Company has entered into any
contract or agreement (other than the Note Agreements) which exists on or after
the Closing Date that would prohibit Agent or the Banks from acquiring a
security interest, mortgage or other Lien on, or a collateral assignment of, any
of the property or assets of any Company.
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Section 6.7. Tax Returns. All federal, state and local tax returns and
other reports required by law to be filed in respect of the income, business,
properties and employees of each Company have been filed and all taxes,
assessments, fees and other governmental charges which are due and payable have
been paid, except as otherwise permitted herein or the failure to do so does not
and will not cause or result in a Material Adverse Effect. The provision for
taxes on the books of each Company is adequate for all years not closed by
applicable statutes and for the current fiscal year.
Section 6.8. Environmental Laws. Each Company is in material compliance
with any and all Environmental Laws, including, without limitation, all
Environmental Laws in all jurisdictions in which any Company owns or operates,
or has owned or operated, a facility or site, arranges or has arranged for
disposal or treatment of hazardous substances, solid waste or other wastes,
accepts or has accepted for transport any hazardous substances, solid waste or
other wastes or holds or has held any interest in real property or otherwise. No
litigation or proceeding arising under, relating to or in connection with any
Environmental Law is pending or, to the knowledge of each Company, threatened,
against any Company, any real property in which any Company holds or has held an
interest or any past or present operation of any Company that, if determined
adversely, would have a Material Adverse Effect. No material release, threatened
release or disposal of hazardous waste, solid waste or other wastes is
occurring, or has occurred (other than those that are currently being cleaned up
in accordance with Environmental Laws), on, under or to any real property in
which any Company holds any interest or performs any of its operations, in
violation of any Environmental Law. As used in this Section, "litigation or
proceeding" means any demand, claim, notice, suit, suit in equity, action,
administrative action, investigation or inquiry whether brought by any
governmental authority or private Person or otherwise.
Section 6.9. Continued Business. There exists no actual, pending, or, to
each Borrower's knowledge, any threatened termination, cancellation or
limitation of, or any modification or change in the business relationship of any
Company and any customer or supplier, or any group of customers or suppliers,
whose purchases or supplies, individually or in the aggregate, are material to
the business of any Company, and there exists no present condition or state of
facts or circumstances that would have a Material Adverse Effect or prevent a
Company from conducting such business or the transactions contemplated by this
Agreement in substantially the same manner in which it was previously conducted.
Section 6.10. Employee Benefits Plans. Schedule 6.10 hereto identifies each
ERISA Plan. No ERISA Event has occurred or is expected to occur with respect to
an ERISA Plan. Full payment has been made of all amounts which a Controlled
Group member is required, under applicable law or under the governing documents,
to have been paid as a contribution to or a benefit under each ERISA Plan. The
liability of each Controlled Group member with respect to each ERISA Plan has
been fully funded based upon reasonable and proper actuarial assumptions, has
been fully insured, or has been fully reserved for on its financial statements.
No changes have occurred or are expected to occur that would cause a material
increase in the cost of providing benefits under the ERISA Plan. With respect to
each ERISA Plan that is intended to be qualified under Code Section 401(a), (a)
the ERISA Plan and any associated trust operationally comply with the applicable
requirements of Code Section 401(a); (b) the ERISA Plan and any associated trust
have been amended to comply with all such requirements as
50
currently in effect, other than those requirements for which a retroactive
amendment can be made within the "remedial amendment period" available under
Code Section 401(b) (as extended under Treasury Regulations and other Treasury
pronouncements upon which taxpayers may rely); (c) other than the ERISA Plan
identified as item 1 on Schedule 6.10, the ERISA Plan and any associated trust
have received a favorable determination letter from the Internal Revenue Service
stating that the ERISA Plan qualifies under Code Section 401(a), that the
associated trust qualifies under Code Section 501(a) and, if applicable, that
any cash or deferred arrangement under the ERISA Plan qualifies under Code
Section 401(k), unless the ERISA Plan was first adopted at a time for which the
above-described "remedial amendment period" has not yet expired; (d) the ERISA
Plan currently satisfies the requirements of Code Section 410(b), without regard
to any retroactive amendment that may be made within the above-described
"remedial amendment period"; and (e) no contribution made to the ERISA Plan is
subject to an excise tax under Code Section 4972. With respect to any Pension
Plan, the "accumulated benefit obligation" of Controlled Group members with
respect to the Pension Plan (as determined in accordance with Statement of
Accounting Standards No. 87, "Employers' Accounting for Pensions") does not
exceed the fair market value of Pension Plan assets.
Section 6.11. Consents or Approvals. No consent, approval or authorization
of, or filing, registration or qualification with, any governmental authority or
any other Person is required to be obtained or completed by any Borrower in
connection with the execution, delivery or performance of any of the Loan
Documents, that has not already been obtained or completed.
Section 6.12. Solvency. Each Borrower has received consideration that is
the reasonable equivalent value of the obligations and liabilities that such
Borrower has incurred to Agent and the Banks. No Borrower is insolvent as
defined in any applicable state or federal statute, nor will any Borrower be
rendered insolvent by the execution and delivery of the Loan Documents to Agent
and the Banks. No Borrower is engaged or about to engage in any business or
transaction for which the assets retained by it are or will be an unreasonably
small amount of capital, taking into consideration the obligations to Agent and
the Banks incurred hereunder. No Borrower intends to, nor does it believe that
it will, incur debts beyond its ability to pay such debts as they mature.
Section 6.13. Financial Statements. The Consolidated financial statements
of Borrowers for the fiscal year ended December 31, 2004 and the unaudited
Consolidated financial statements of Borrowers for the fiscal quarter ended
September 25, 2005, furnished to Agent and the Banks, are true and complete in
all material respects, have been prepared in accordance with GAAP, and fairly
present the financial condition of the Companies as of the dates of such
financial statements and the results of their operations for the periods then
ending. Since the dates of such statements, there has been no material adverse
change in any Company's financial condition, properties or business nor any
change in any Company's accounting procedures.
Section 6.14. Regulations. No Borrower is engaged principally or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying any "margin stock" (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System of the United States of
America). Neither the granting of any Loan (or any conversion thereof) or Letter
of Credit nor the use of the proceeds of any Loan or Letter of
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Credit will violate, or be inconsistent with, the provisions of Regulation U or
X or any other Regulation of such Board of Governors.
Section 6.15. Intellectual Property. Each Company owns, possesses, or has
the right to use all of the patents, patent applications, trademarks, service
marks, copyrights, licenses, and rights with respect to the foregoing necessary
for the conduct of its business without any known conflict with the rights of
others, except where the failure to do so would not have a Material Adverse
Effect.
Section 6.16. Insurance. Each Company maintains with financially sound and
reputable insurers insurance with coverage and limits as required by law and as
is customary with Persons engaged in the same businesses as the Companies.
Section 6.17. Accurate and Complete Statements. Neither the Loan Documents
nor any written statement made by any Company in connection with any of the Loan
Documents contains any untrue statement of a material fact or omits a material
fact necessary to make the statements contained therein or in the Loan Documents
not misleading. After due inquiry by Borrowers, there is no known fact that any
Company has not disclosed to Agent and the Banks that has or would have a
Material Adverse Effect.
Section 6.18. Investment Company; Holding Company. No Company is (a) an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (b) subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, each as amended, or any foreign, federal, state or local statute or
regulation limiting its ability to incur Indebtedness.
Section 6.19. Anti-Terrorism Laws. No Company or any Affiliate of any
Company is in violation of any Anti-Terrorism Law or has engaged in or conspired
to engage in any transaction that evades or avoids, or has the purpose of
evading or avoiding, or has attempted to violate, any of the prohibitions set
forth in any Anti-Terrorism Law. No Company or Affiliate of any Company is any
of the following (each a "Blocked Person"):
(a) a Person that is listed in the annex to, or is otherwise subject to the
provisions of, Executive Order No. 13224;
(b) a Person owned or controlled by, or acting for or on behalf of, any
Person that is listed in the annex to, or is otherwise subject to the provisions
of, Executive Order No. 13224;
(c) a Person or entity with which any bank or other financial institution
is prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law;
(d) a Person or entity that commits, threatens or conspires to commit or
supports "terrorism" as defined in Executive Order No. 13224;
(e) a Person or entity that is named as a "specially designated national"
on the most current list published by the U.S. Treasury Department Office of
Foreign Asset Control at its official website or any replacement website or
other replacement official publication of such list; or
52
(f) a Person or entity who is affiliated with a Person or entity listed
above.
No Company knowingly (i) conducts any business or engages in making or
receiving any contribution of funds, goods or services to or for the benefit of
any Blocked Person or (ii) deals in, or otherwise engages in any transaction
relating to, any property or interests in property blocked pursuant to Executive
Order No. 13224.
Section 6.20. Reportable Transactions. The Borrowers do not intend to treat
the Loans and related transactions as being "reportable transactions" (within
the meaning of Treasury Regulation section 1.6011-4). In the event any Borrower
determines to take any action inconsistent with such intention, it will promptly
notify Agent thereof.
Section 6.21. Defaults. No Default or Event of Default exists hereunder,
nor will any begin to exist immediately after the execution and delivery hereof.
ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default hereunder:
Section 7.1. Payments. If (a) the interest on any Loan or any facility or
other fee shall not be paid in full punctually when due and payable or within
five days thereafter, or (b) the principal of any Loan shall not be paid in full
punctually when due and payable.
Section 7.2. Special Covenants. If any Company or any Obligor shall fail or
omit to perform and observe Sections 5.7, 5.8, 5.9, 5.11, 5.12, 5.13, 5.14,
5.22, 5.24 or 5.25 hereof.
Section 7.3. Other Covenants. If any Company or Obligor shall fail or omit
to perform and observe any agreement or other provision (other than those
referred to in Sections 7.1 or 7.2 hereof) contained or referred to in this
Agreement or any Related Writing that is on such Company's or Obligor's part, as
the case may be, to be complied with, and that Default shall not have been fully
corrected within thirty (30) days after the giving of written notice thereof to
a Borrower by Agent or any Bank that the specified Default is to be remedied.
Section 7.4. Representations and Warranties. If any representation,
warranty or statement made in or pursuant to this Agreement or any Related
Writing or any other material information furnished by any Company or Obligor to
the Banks or any thereof or any other holder of any Note, shall be false or
erroneous in any material respect.
Section 7.5. Cross Default. If any Company or Obligor shall default in (a)
the payment of principal or interest due and owing upon any other obligation for
borrowed money in excess of the aggregate, for all such obligations for all such
Companies and Obligors, of Fifteen Million Dollars ($15,000,0000) beyond any
period of grace provided with respect thereto, or (b) the performance or
observance of any other agreement, term or condition contained in any agreement
under which such obligation is created, if the effect of such default is to
allow the acceleration of the maturity of such Indebtedness or to permit the
holder thereof to cause such Indebtedness to become due prior to its stated
maturity.
53
Section 7.6. ERISA Default. The occurrence of one or more ERISA Events that
(a) the Required Banks determine could have a Material Adverse Effect, or (b)
results in a Lien on any of the assets of any Company.
Section 7.7. Change in Control; Determination of Taxability. If (a) a
Change in Control shall occur, or (b) a Determination of Taxability shall occur.
Section 7.8. Money Judgment. A final judgment or order for the payment of
money shall be rendered against any Company or any Obligor by a court of
competent jurisdiction, which remains unpaid or unstayed and undischarged for a
period (during which execution shall not be effectively stayed) of thirty (30)
days after the date on which the right to appeal has expired, provided that the
aggregate of all such judgments, for all such Companies and Obligors, shall
exceed Ten Million Dollars ($10,000,000).
Section 7.9. Validity of Loan Documents. (a) The validity, binding effect
or enforceability of any Loan Document against any Borrower or Guarantor of
Payment shall be contested by any Company or any other Obligor; (b) any Borrower
or Guarantor of Payment shall deny that it has any or further liability or
obligation thereunder; or (c) any Loan Document shall be terminated, invalidated
or set aside, or be declared ineffective or inoperative or in any way cease to
give or provide to Agent and the Banks the material benefits purported to be
created thereby.
Section 7.10. Solvency. If any Borrower, or any other Company with assets
in excess of One Million Dollars ($1,000,000), shall (a) except as permitted
pursuant to Section 5.12 hereof, discontinue business, (b) generally not pay its
debts as such debts become due, (c) make a general assignment for the benefit of
creditors, (d) apply for or consent to the appointment of a receiver, a
custodian, a trustee, an interim trustee or liquidator of all or a substantial
part of its assets, (e) be adjudicated a debtor or have entered against it an
order for relief under Title 11 of the United States Code, as the same may be
amended from time to time, (f) file a voluntary petition in bankruptcy, or have
an involuntary proceeding filed against it and the same shall continue
undismissed for a period of sixty (60) days from commencement of such proceeding
or case, or file a petition or an answer seeking reorganization or an
arrangement with creditors or seeking to take advantage of any other law
(whether federal or state) relating to relief of debtors, or admit (by answer,
by default or otherwise) the material allegations of a petition filed against it
in any bankruptcy, reorganization, insolvency or other proceeding (whether
federal or state) relating to relief of debtors, (g) suffer or permit to
continue unstayed and in effect for thirty (30) consecutive days any judgment,
decree or order entered by a court of competent jurisdiction, which approves a
petition seeking its reorganization or appoints a receiver, custodian, trustee,
interim trustee or liquidator of all or a substantial part of its assets, or (h)
take, or omit to take, any action in order thereby to effect any of the
foregoing.
ARTICLE VIII. REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or elsewhere,
54
Section 8.1. Optional Defaults. If any Event of Default referred to in
Section 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8 or 7.9 hereof shall occur, Agent
may, and shall, at the request of the Required Banks, give written notice to
Borrowers, to:
(a) terminate the Commitment and the credits hereby established, if not
previously terminated, and, immediately upon such election, the obligations of
Banks, and each thereof, to make any further Loan and the obligation of the
Fronting Bank to issue any Letter of Credit hereunder immediately shall be
terminated, and/or
(b) accelerate the maturity of all of the Debt (if the Debt is not already
due and payable), whereupon all of the Debt shall become and thereafter be
immediately due and payable in full without any presentment or demand and
without any further or other notice of any kind, all of which are hereby waived
by Borrowers.
Section 8.2. Automatic Defaults. If any Event of Default referred to in
Section 7.10 hereof shall occur:
(a) all of the Commitment and the credits hereby established shall
automatically and immediately terminate, if not previously terminated, and no
Bank thereafter shall be under any obligation to grant any further Loan, nor
shall Agent be obligated to issue any Letter of Credit hereunder, and
(b) the principal of and interest then outstanding on all of the Notes, and
all of the other Debt, shall thereupon become and thereafter be immediately due
and payable in full (if the Debt is not already due and payable), all without
any presentment, demand or notice of any kind, which are hereby waived by each
Borrower.
Section 8.3. Letters of Credit. If the maturity of the Debt shall be
accelerated pursuant to Sections 8.1 or 8.2 hereof, Borrowers shall immediately
deposit with Agent, as security for the obligations of Borrowers and any
Guarantor of Payment to reimburse Agent and the Banks for any then outstanding
Letters of Credit, cash equal to the sum of the aggregate undrawn balance of any
then outstanding Letters of Credit. Agent and the Banks are hereby authorized,
at their option, to deduct any and all such amounts from any deposit balances
then owing by any Bank to or for the credit or account of any Company, as
security for the obligations of Borrowers and any Guarantor of Payment to
reimburse Agent and the Banks for any then outstanding Letters of Credit.
Section 8.4. Offsets. If there shall occur or exist any Event of Default
referred to in Section 7.10 hereof or if the maturity of the Debt is accelerated
pursuant to Section 8.1 or 8.2 hereof, each Bank shall have the right at any
time to set off against, and to appropriate and apply toward the payment of, any
and all Debt then owing by Borrowers to that Bank (including, without
limitation, any participation purchased or to be purchased pursuant to Section
2.1B, 2.1C or 8.5 hereof), whether or not the same shall then have matured, any
and all deposit balances and all other indebtedness then held or owing by that
Bank to or for the credit or account of any Borrower of Guarantor of Payment,
all without notice to or demand upon any Borrower or any other Person, all such
notices and demands being hereby expressly waived by each Borrower.
55
Section 8.5. Equalization Provision. Each Bank agrees with the other Banks
that if it, at any time, shall obtain any Advantage over the other Banks or any
thereof in respect of the Debt (except as to Swing Loans prior to Agent's giving
of a notice to participate and except under Article III hereof), it shall
purchase from the other Banks, for cash and at par, such additional
participation in the Debt as shall be necessary to nullify the Advantage. If any
such Advantage resulting in the purchase of an additional participation as
aforesaid shall be recovered in whole or in part from the Bank receiving the
Advantage, each such purchase shall be rescinded, and the purchase price
restored (but without interest unless the Bank receiving the Advantage is
required to pay interest on the Advantage to the Person recovering the Advantage
from such Bank) ratably to the extent of the recovery. Each Bank further agrees
with the other Banks that if it at any time shall receive any payment for or on
behalf of any Borrower on any indebtedness owing by Borrowers to that Bank by
reason of offset of any deposit or other indebtedness, it will apply such
payment first to any and all Debt owing by such Borrower to that Bank
(including, without limitation, any participation purchased or to be purchased
pursuant to this Section or any other Section of this Agreement). Each Borrower
agrees that any Bank so purchasing a participation from the other Banks or any
thereof pursuant to this Section may exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Bank was a direct creditor of such Borrower in the amount of such
participation.
ARTICLE IX. THE AGENT
The Banks authorize KeyBank National Association and KeyBank National
Association hereby agrees to act as agent for the Banks in respect of this
Agreement upon the terms and conditions set forth elsewhere in this Agreement,
and upon the following terms and conditions:
Section 9.1. Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes Agent to take such action as agent on its behalf and to
exercise such powers hereunder as are delegated to Agent by the terms hereof,
together with such powers as are reasonably incidental thereto, including,
without limitation, to execute and deliver the Intercreditor Agreement on behalf
of the Banks. Neither Agent nor any of its affiliates, directors, officers,
attorneys or employees shall be liable for any action taken or omitted to be
taken by it or them hereunder or in connection herewith, except for its or their
own gross negligence or willful misconduct. Each Bank, by becoming a party to
this Agreement, agrees to be bound by and subject to the terms and conditions of
the Intercreditor Agreement as if it were an original party thereto.
Section 9.2. Note Holders. Agent may treat the payee of any Note as the
holder thereof until written notice of transfer shall have been filed with it,
signed by such payee and in form satisfactory to Agent.
Section 9.3. Consultation With Counsel. Agent may consult with legal
counsel selected by it and shall not be liable for any action taken or suffered
in good faith by it in accordance with the opinion of such counsel.
56
Section 9.4. Documents. Agent shall not be under any duty to examine into
or pass upon the validity, effectiveness, genuineness or value of any Loan
Documents or any other Related Writing furnished pursuant hereto or in
connection herewith or the value of any collateral obtained hereunder, and Agent
shall be entitled to assume that the same are valid, effective and genuine and
what they purport to be.
Section 9.5. Agent and Affiliates. With respect to the Loans, Agent shall
have the same rights and powers hereunder as any other Bank and may exercise the
same as though it were not Agent, and Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of business with
any Company or any affiliate thereof.
Section 9.6. Knowledge of Default. It is expressly understood and agreed
that Agent shall be entitled to assume that no Default or Event of Default has
occurred, unless Agent shall have been notified by a Borrower or a Bank in
writing that such Borrower or Bank believes that a Default or Event of Default
has occurred and is continuing and specifying the nature thereof.
Section 9.7. Action by Agent. Subject to the other terms and conditions
hereof, so long as Agent shall be entitled, pursuant to Section 9.6 hereof, to
assume that no Default or Event of Default shall have occurred and be
continuing, Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights that may be vested in it by,
or with respect to taking or refraining from taking any action or actions that
it may be able to take under or in respect of, this Agreement. Agent shall incur
no liability under or in respect of this Agreement by acting upon any notice,
certificate, warranty or other paper or instrument believed by it to be genuine
or authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its
judgment, or that may seem to it to be necessary or desirable in the premises.
Section 9.8. Notices, Default. In the event that Agent shall have acquired
actual knowledge of any Default or Event of Default, Agent shall promptly notify
the Banks and shall take such action and assert such rights under this Agreement
as the Required Banks shall direct and Agent shall inform the other Banks in
writing of the action taken. Subject to the other terms and conditions hereof,
Agent may take such action and assert such rights as it deems to be advisable,
in its discretion, for the protection of the interests of the holders of the
Debt.
Section 9.9. Indemnification of Agent. The Banks agree to indemnify Agent
(to the extent not reimbursed by Borrowers) ratably, according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever that may be imposed
on, incurred by or asserted against Agent in its capacity as agent in any way
relating to or arising out of this Agreement or any Loan Document or any action
taken or omitted by Agent with respect to this Agreement or any Loan Document,
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees) or disbursements resulting from Agent's
gross negligence, willful misconduct as determined by a court of competent
jurisdiction, or from any action taken or omitted by Agent in any capacity other
than as agent under this Agreement, the Intercreditor Agreement or any other
Loan Document.
57
Section 9.10. Successor Agent. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days prior written notice to Borrowers and the
Banks. If Agent shall resign under this Agreement, then either (a) the Required
Banks shall appoint from among the Banks a successor agent for the Banks (with
the consent of Borrowers so long as an Event of Default has not occurred and
which consent shall not be unreasonably withheld), or (b) if a successor agent
shall not be so appointed and approved within the thirty (30) day period
following Agent's notice to the Banks of its resignation, then Agent shall
appoint a successor agent that shall serve as agent until such time as the
Required Banks appoint a successor agent. Any such successor Agent shall be a
commercial bank organized under the laws of the United States of America or any
state thereof and having a combined capital and surplus of at least Five Hundred
Million Dollars ($500,000,000). Upon its appointment, such successor agent shall
succeed to the rights, powers and duties as agent, and the term "Agent" shall
mean such successor effective upon its appointment, and the former agent's
rights, powers and duties as agent shall be terminated without any other or
further act or deed on the part of such former agent or any of the parties to
this Agreement.
Section 9.11. Other Agents. Any Bank identified herein as a Co-Agent,
Syndication Agent, Documentation Agent, Managing Agent, Manager, Lead Arranger,
Arranger or any other corresponding title, other than "Agent," shall have no
right, power, obligation, liability, responsibility or duty under this Agreement
or any other Loan Document except those applicable to all Banks as such. Each
Bank acknowledges that it has not relied, and will not rely, on any Bank so
identified in deciding to enter into this Agreement or in taking or not taking
any action hereunder.
Section 9.12. No Reliance on Agent's Customer Identification Program. Each
Bank acknowledges and agrees that neither such Bank, nor any of its Affiliates,
participants or assignees, may rely on Agent to carry out such Bank's,
Affiliate's, participant's or assignee's customer identification program, or
other obligations required or imposed under or pursuant to the USA Patriot Act
or the regulations thereunder, including the regulations contained in 31 CFR
103.121 (as hereafter amended or replaced, the "CIP Regulations"), or any other
Anti-Terrorism Law, including any programs involving any of the following items
relating to or in connection with Borrowers, their Affiliates or agents, the
Loan Documents or the transactions hereunder: (1) any identity verification
procedures, (2) any record keeping, (3) any comparisons with government lists,
(4) any customer notices or (5) any other procedures required under the CIP
Regulations or such other laws.
Section 9.13. USA Patriot Act. Each Bank or assignee or participant of a
Bank that is not incorporated under the laws of the United States of America or
a state thereof (and is not excepted from the certification requirement
contained in Section 313 of the USA Patriot Act and the applicable regulations
because it is both (i) an affiliate of a depository institution or foreign bank
that maintains a physical presence in the United States or foreign country, and
(ii) subject to supervision by a banking authority regulating such affiliated
depository institution or foreign bank) shall deliver to Agent the
certification, or, if applicable, recertification, certifying that such Bank is
not a "shell" and certifying to other matters as required by Section 313 of the
USA Patriot Act and the applicable regulations: (1) within ten (10) days after
the Closing Date and (2) at such other times as are required under the USA
Patriot Act.
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ARTICLE X. MISCELLANEOUS
Section 10.1. Banks' Independent Investigation. Each Bank, by its signature
to this Agreement, acknowledges and agrees that Agent has made no representation
or warranty, express or implied, with respect to the creditworthiness, financial
condition, or any other condition of any Company or with respect to the
statements contained in any information memorandum furnished in connection
herewith or in any other oral or written communication between Agent and such
Bank. Each Bank represents that it has made and shall continue to make its own
independent investigation of the creditworthiness, financial condition and
affairs of the Companies in connection with the extension of credit hereunder,
and agrees that Agent has no duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other information with
respect thereto (other than such notices as may be expressly required to be
given by Agent to the Banks hereunder), whether coming into its possession
before the granting of the first Loans hereunder or at any time or times
thereafter. Each Bank further represents that it has reviewed each of the Loan
Documents, including, but not limited to, the Intercreditor Agreement.
Section 10.2. No Waiver; Cumulative Remedies. No omission or course of
dealing on the part of Agent, any Bank or the holder of any Note in exercising
any right, power or remedy hereunder or under any of the Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy hereunder or under any of the
Loan Documents. The remedies herein provided are cumulative and in addition to
any other rights, powers or privileges held by operation of law, by contract or
otherwise.
Section 10.3. Amendments; Consents. No amendment, modification,
termination, or waiver of any provision of any Loan Document nor consent to any
variance therefrom, shall be effective unless the same shall be in writing and
signed by the Required Banks and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
Anything herein to the contrary notwithstanding, unanimous consent of the Banks
shall be required with respect to (a) any increase in the Commitment hereunder,
except pursuant to Section 2.8(c) hereof, (b) the extension of maturity of any
Loan, the payment date of interest or principal thereunder, or the payment of
facility or other fees or amounts payable hereunder or the extension of the
expiry date of any Letter of Credit beyond the last day of the Commitment
Period, (c) any reduction in the rate of interest on any Loan, or in any amount
of principal or interest due with respect to any Loan, or the payment of
commitment or other fees hereunder or any change in the manner of pro rata
application of any payments made by Borrowers to the Banks hereunder, (d) any
change in any percentage voting requirement, voting rights, or the Required
Banks definition in this Agreement, (e) the release of any Borrower or Guarantor
of Payment, or (f) any amendment to this Section 10.3 or Section 8.5 hereof.
Notice of amendments or consents ratified by the Banks hereunder shall
immediately be forwarded by Borrowers to all Banks. Each Bank or other holder of
a Note shall be bound by any amendment, waiver or consent obtained as authorized
by this Section, regardless of its failure to agree thereto.
Section 10.4. Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to a Borrower,
mailed or delivered to it, addressed to it at the address specified on the
signature pages of this Agreement, if to a Bank,
59
mailed or delivered to it, addressed to the address of such Bank specified on
the signature pages of this Agreement, or, as to each party, at such other
address as shall be designated by such party in a written notice to each of the
other parties. All notices, statements, requests, demands and other
communications provided for hereunder shall be given by overnight delivery or
first class mail with postage prepaid by registered or certified mail, addressed
as aforesaid, or sent by facsimile with telephonic confirmation of receipt,
except that all notices hereunder shall not be effective until received.
Section 10.5. Costs, Expenses and Taxes. Borrowers agree to pay on demand
(a) all reasonable costs and expenses of Agent, including all syndication and
administration, travel and all attorneys' fees and expenses of Agent in
connection with the preparation, negotiation and closing of the Loan Documents
and the administration of the Loan Documents and the other documents to be
delivered hereunder, (b) extraordinary expenses of Agent in connection with the
administration of the Loan Documents and the other instruments and documents to
be delivered hereunder, and (c) the reasonable fees and out-of-pocket expenses
of special counsel for Agent, with respect to the foregoing, and of local
counsel, if any, who may be retained by said special counsel with respect
thereto. Borrowers also agree to pay on demand all costs and expenses of Agent
and the Banks, including reasonable attorneys' fees, in connection with the
restructuring or enforcement of the Debt, this Agreement or any Related Writing.
In addition, Borrowers shall pay any and all stamp and other taxes and fees
payable or determined to be payable in connection with the execution and
delivery of the Loan Documents, and the other instruments and documents to be
delivered hereunder, and agree to hold Agent and each Bank harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes or fees.
Section 10.6. Indemnification. Each Borrower agrees to defend, indemnify
and hold harmless Agent and the Banks (and their respective affiliates,
officers, directors, attorneys, agents and employees) from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including attorneys' fees) or disbursements of any kind
or nature whatsoever that may be imposed on, incurred by or asserted against
Agent or any Bank in connection with any investigative, administrative or
judicial proceeding (whether or not such Bank or Agent shall be designated a
party thereto) or any other claim by any Person relating to or arising out of
any Loan Document or any actual or proposed use of proceeds of the Loans or any
of the Debt, or any activities of any Company or any Obligor or any of their
respective Affiliates; provided that no Bank nor Agent shall have the right to
be indemnified under this Section for its own gross negligence or willful
misconduct as determined by a court of competent jurisdiction. All obligations
provided for in this Section 10.6 shall survive any termination of this
Agreement.
Section 10.7. Obligations Several; No Fiduciary Obligations. The
obligations of the Banks hereunder are several and not joint. Nothing contained
in this Agreement and no action taken by Agent or the Banks pursuant hereto
shall be deemed to constitute the Banks a partnership, association, joint
venture or other entity. No default by any Bank hereunder shall excuse the other
Banks from any obligation under this Agreement; but no Bank shall have or
acquire any additional obligation of any kind by reason of such default. The
relationship among Borrowers and the Banks with respect to the Loan Documents
and the Related Writings is and shall be solely that of debtors and creditors,
respectively, and neither Agent nor any Bank shall
60
have any fiduciary obligation toward any Borrower with respect to any such
documents or the transactions contemplated thereby.
Section 10.8. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement.
Section 10.9. Binding Effect; Borrowers' Assignment. This Agreement shall
become effective when it shall have been executed by each Borrower, Agent and
each Bank and thereafter shall be binding upon and inure to the benefit of each
Borrower, Agent and each of the Banks and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of Agent and
all of the Banks.
Section 10.10. Bank Assignments; Participations.
A. Assignments of Commitments. Each Bank shall have the right at any time
or times to assign to another financial institution, without recourse, all or a
percentage of all of the following: (a) that Bank's Commitment, (b) all Loans
made by that Bank, (c) that Bank's Notes, and (d) that Bank's interest in any
Letter of Credit and any participation purchased pursuant to Section 2.1B, 2.1C
or 8.5 hereof; provided, however, in each such case, that the assignor and the
assignee shall have complied with the following requirements:
(i) Prior Consent. No assignment may be consummated pursuant to this
Section 10.10 without the prior written consent of Cedar Fair LP and Agent
(other than an assignment by any Bank to another Bank or to any affiliate
of such Bank which affiliate is either wholly-owned by such Bank or is
wholly-owned by a Person that wholly owns, either directly or indirectly,
such Bank), which consent of Borrowers and Agent shall not be unreasonably
withheld; provided, however, that, Borrowers' consent shall not be required
if, at the time of the proposed assignment, any Default or Event of Default
shall then exist. Anything herein to the contrary notwithstanding, any Bank
may at any time make a collateral assignment of all or any portion of its
rights under the Loan Documents to a Federal Reserve Bank, and no such
assignment shall release such assigning Bank from its obligations
hereunder;
(ii) Minimum Amount. Each such assignment shall be in a minimum amount
of the lesser of Five Million Dollars ($5,000,000) of the assignor's
Commitment and interest herein or the entire amount of the assignor's
Commitment and interest herein;
(iii) Assignment Fee; Assignment Agreement. Unless the assignment
shall be to an affiliate of the assignor or the assignment shall be due to
merger of the assignor or for regulatory purposes, either the assignor or
the assignee shall remit to Agent, for its own account, an administrative
fee of Three Thousand Dollars ($3,000). Unless the assignment shall be due
to merger of the assignor or a collateral assignment for regulatory
purposes, the assignor shall (A) cause the assignee to execute and deliver
to Borrowers and Agent an Assignment Agreement, and (B) execute and
deliver, or cause
61
the assignee to execute and deliver, as the case may be, to Agent such
additional amendments, assurances and other writings as Agent may
reasonably require;
(iv) Intercreditor Agreement. The assignee shall have executed a
joinder agreement in form and substance satisfactory to Agent pursuant to
which such assignee shall have become a party to the Intercreditor
Agreement. The assignee shall also have provided notice (prior to the
effective date of the assignment) in accordance with Section 13 of the
Intercreditor Agreement that the assignee is to become a Bank under this
Agreement; and
(v) Non-U.S. Assignee. If the assignment is to be made to an assignee
which is organized under the laws of any jurisdiction other than the United
States or any state thereof, the assignor Bank shall cause such assignee,
at least five Business Days prior to the effective date of such assignment,
(A) to represent to the assignor Bank (for the benefit of the assignor
Bank, Agent and Borrowers) that under applicable law and treaties no taxes
will be required to be withheld by Agent, Borrowers or the assignor with
respect to any payments to be made to such assignee in respect of the Loans
hereunder, (B) to furnish to the assignor (and, in the case of any assignee
registered in the Register (as defined below), Agent and Borrowers) either
(1) U.S. Internal Revenue Service Form W-8ECI or U.S. Internal Revenue
Service Form W-8BEN or (2) United States Internal Revenue Service Form W-8
or W-9, as applicable (wherein such assignee claims entitlement to complete
exemption from U.S. federal withholding tax on all interest payments
hereunder), and (C) to agree (for the benefit of the assignor, Agent and
Borrowers) to provide the assignor Bank (and, in the case of any assignee
registered in the Register, Agent and Borrowers) a new Form W-8ECI or Form
W-8BEN or Form W-8 or W-9, as applicable, upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such assignee, and to comply from time to time
with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
Upon satisfaction of the requirements specified in clauses (i) through (v)
above, Borrowers shall execute and deliver (A) to Agent, the assignor and the
assignee, any consent or release (of all or a portion of the obligations of the
assignor) required to be delivered by Borrowers in connection with the
Assignment Agreement, and (B) to the assignee, an appropriate Note or Notes.
After delivery of the new Note or Notes, the assignor's Note or Notes being
replaced shall be returned to Borrowers marked "replaced".
Upon satisfaction of the requirements of set forth in (i) through (v), and
any other condition contained in this Section 10.10A, (A) the assignee shall
become and thereafter be deemed to be a "Bank" for the purposes of this
Agreement, (B) in the event that the assignor's entire interest has been
assigned, the assignor shall cease to be and thereafter shall no longer be
deemed to be a "Bank" and (C) the signature pages hereto and Schedule 1 hereto
shall be automatically amended, without further action, to reflect the result of
any such assignment.
Agent shall maintain at its address referred to in Section 10.4 hereof a
copy of each Assignment Agreement delivered to it and a register (the
"Register") for the recordation of the
62
names and addresses of the Banks and the Commitment of, and principal amount of
the Loans owing to, each Bank from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and Borrowers, Agent and
the Banks may treat each financial institution whose name is recorded in the
Register as the owner of the Loan recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by Borrowers or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
B. Sale of Participations. Each Bank shall have the right at any time or
times, without the consent of Agent or Borrowers, to sell one or more
participations or sub-participations to a financial institution, as the case may
be, in all or any part of (a) that Bank's Commitment, (b) that Bank's Commitment
Percentage, (c) any Loan made by that Bank, (d) any Note delivered to that Bank
pursuant to this Agreement, and (e) that Bank's interest in any Letter of Credit
and any participation, if any, purchased pursuant to Section 2.1B, 2.1C or 8.5
hereof or this Section 10.10B.
The provisions of Article III and Section 10.6 shall inure to the benefit
of each purchaser of a participation or sub-participation; provided that Agent
shall continue to distribute payments pursuant to this Agreement as if no
participation has been sold.
If any Bank shall sell any participation or sub-participation, that Bank
shall, as between itself and the purchaser, retain all of its rights (including,
without limitation, rights to enforce against Borrowers the Loan Documents and
the Related Writings) and duties pursuant to the Loan Documents and the Related
Writings, including, without limitation, that Bank's right to approve any
waiver, consent or amendment pursuant to Section 10.3, except if and to the
extent that any such waiver, consent or amendment would:
(i) reduce any fee or commission allocated to the participation or
sub-participation, as the case may be,
(ii) reduce the amount of any principal payment on any Loan allocated
to the participation or sub-participation, as the case may be, or reduce
the principal amount of any Loan so allocated or the rate of interest
payable thereon, or
(iii) extend the time for payment of any amount allocated to the
participation or sub-participation, as the case may be.
No participation or sub-participation shall operate as a delegation of any
duty of the seller thereof. Under no circumstance shall any participation or
sub-participation be deemed a novation in respect of all or any part of the
seller's obligations pursuant to this Agreement.
Section 10.11. Severability of Provisions; Captions; Attachments. Any
provision of this Agreement that shall be 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. The several captions to Sections and subsections
herein are inserted for convenience only and shall be ignored in interpreting
the provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein and shall be deemed to be a part hereof.
63
Section 10.12. Entire Agreement. This Agreement, any Note and any other
Loan Document or other agreement, document or instrument attached hereto or
executed on or as of the Closing Date integrate all the terms and conditions
mentioned herein or incidental hereto and supersede all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
Section 10.13. Governing Law; Submission to Jurisdiction. Except with
respect to any Letter of Credit to be governed by the laws of the State of New
York in accordance with Section 2.1.C hereof, this Agreement, each of the Notes
and any Related Writing shall be governed by and construed in accordance with
the laws of the State of Ohio and the respective rights and obligations of
Borrowers and the Banks shall be governed by Ohio law, without regard to
principles of conflict of laws. Each Borrower hereby irrevocably submits to the
non-exclusive jurisdiction of any Ohio state or federal court sitting in
Cleveland, Ohio, over any action or proceeding arising out of or relating to
this Agreement, the Debt or any Related Writing, and each Borrower hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Ohio state or federal court. Each Borrower, on
behalf of itself and its Subsidiaries, hereby irrevocably waives, to the fullest
extent permitted by law, any objection it may now or hereafter have to the
laying of venue in any action or proceeding in any such court as well as any
right it may now or hereafter have to remove such action or proceeding, once
commenced, to another court on the grounds of FORUM NON CONVENIENS or otherwise.
Each Borrower agrees that a final, nonappealable judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
Section 10.14. Legal Representation of Parties. The Loan Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Agreement or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.
Section 10.15. Confidentiality. Agent and each Bank shall hold all
Confidential Information in accordance with the customary procedures of Agent or
such Bank for handling confidential information of this nature, and in
accordance with safe and sound banking practices. Notwithstanding the foregoing,
Agent or any Bank may in any event make disclosures of, and furnish copies of
Confidential Information (a) to another agent under this Agreement or another
Bank; (b) when reasonably required by any bona fide transferee or participant in
connection with the contemplated transfer of any Loans or Commitment or
participation therein (provided that each such prospective transferee or
participant shall execute an agreement for the benefit of Borrowers with such
prospective transferor Bank or participant containing provisions substantially
identical to those contained in this Section 10.15); (c) to the parent
corporation or corporations of Agent or such Bank, and to their respective
auditors and attorneys; and (d) as required or requested by any governmental
agency or representative thereof, or pursuant to legal process, provided, that,
unless specifically prohibited by applicable law or court order, Agent or such
Bank, as applicable, shall notify the Treasury Manager of any request by any
governmental agency or representative thereof (other than any such request in
connection with an examination of the financial condition of Agent or such Bank
by such governmental agency), and of any other request pursuant to legal
process, for disclosure of any such non-public information prior to
64
disclosure of such Confidential Information. In no event shall Agent or any Bank
be obligated or required to return any materials furnished by or on behalf of
any Company. Each Borrower hereby agrees that the failure of Agent or any Bank
to comply with the provisions of this Section 10.15 shall not relieve any
Borrower of any of the obligations to Agent and the Banks under this Agreement
and the other Loan Documents. Notwithstanding anything herein to the contrary,
"Confidential Information" shall not include, and the Borrowers, Agent, each
Bank and the respective Affiliates of each of the foregoing (and the respective
partners, directors, officers, employees, agents, advisors and other
representatives of each of the foregoing and their Affiliates) may disclose to
any and all Persons, without limitation of any kind (a) any information with
respect to the U.S. federal and state income tax treatment of the transactions
contemplated hereby and any facts that may be relevant to understanding such tax
treatment, which facts shall not include for this purpose the names of the
parties or any other Person named herein, or information that would permit
identification of the parties or such other Persons, or any pricing terms or
other nonpublic business or financial information that is unrelated to such tax
treatment or facts, and (b) all materials of any kind (including opinions or
other tax analyses) relating to such tax treatment or facts that are provided to
any of the Persons referred to above.
Section 10.16. Treasury Regulations. The Borrowers acknowledge that the
Agent and/or one or more of the Banks may treat the Loans as part of a
transaction that is subject to Treasury Regulation section 1.6011-4 or section
301.6112-1, and the Agent and such Bank or Banks, as applicable, may file such
IRS forms or maintain such lists and other records as they may determine is
required by such Treasury Regulations.
Section 10.17. Limited Liability of Partners. Anything in this Agreement or
any other Loan Document to the contrary notwithstanding, Agent and the Banks
agree that no recourse under this Agreement, any Note or any other Loan Document
shall be had against the general partner of Cedar Fair LP, or any other partner
of Cedar Fair LP, or any partner of any such partner, as such (all of the
foregoing, collectively, the "Exempted Persons"), whether based on agency,
deputization or otherwise, by the enforcement of any assessment or by legal or
equitable proceeding, by virtue of statute or otherwise, it being expressly
agreed that no personal liability whatsoever shall attach to or be incurred by
any Exempted Person under this Agreement, the Notes or any other Loan Document;
provided, however, that the foregoing limitation of liability shall in no way
constitute a limitation on the right of Agent or any Bank to enforce their
remedies against any Borrower or any other Company, or their respective
properties and assets, or any other Person (other than an Exempted Person, as
such), for the collection of amounts due and owing under the Loan Documents or
any other obligations under any of the Loan Documents.
[Remainder of page left intentionally blank.]
65
Section 10.18. Jury Trial Waiver. EACH BORROWER, AGENT AND EACH OF THE
BANKS WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, AGENT AND THE
BANKS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS
AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR
DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial By: Cedar Fair Management Inc.,
Officer its Managing General Partner
CEDAR FAIR
By: Magnum Management Corporation,
its Managing General Partner
MAGNUM MANAGEMENT CORPORATION
▇▇▇▇▇'▇ ▇▇▇▇▇ FARM
By: Cedar Fair, L.P.,
its Managing General Partner
By: Cedar Fair Management Inc.,
its Managing General Partner
By
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
As Corporate Vice President, Finance
& Chief Financial Officer of Cedar
Fair Management Inc.
As Vice President, Finance & Chief
Financial Officer of Magnum
Management Corporation
S-1
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ NATIONAL ASSOCIATION,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ as Agent and as a Bank
Attention: Large Corporate
Banking
By:
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CHASE BANK, N.A.
Mail Code IL1-0364
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By:
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ WACHOVIA BANK, NATIONAL ASSOCIATION
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By:
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ FIFTH THIRD BANK
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
S-2
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ NATIONAL CITY BANK
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By:
------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ FARGO BANK,
Suite 2900 NATIONAL ASSOCIATION
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇. UMB BANK, N.A.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ By:
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
S-3
Schedule 1
Banks and Commitments
MAXIMUM AMOUNT MAXIMUM AMOUNT
DURING ANY OTHER THAN
COMMITMENT SEASONAL COMMITMENT DURING ANY SEASONAL
BANKING INSTITUTION PERCENTAGE DECREASE PERIOD COMMITMENT DECREASE PERIOD
------------------- ---------- ------------------- --------------------------
KeyBank National Association 24.0% $ 42,000,000 $ 60,000,000
JPMorgan Chase Bank, N.A. 14.0% $ 24,500,000 $ 35,000,000
Wachovia Bank, National Association 14.0% $ 24,500,000 $ 35,000,000
Fifth Third Bank 12.0% $ 21,000,000 $ 30,000,000
Comerica Bank 12.0% $ 21,000,000 $ 30,000,000
National City Bank 12.0% $ 21,000,000 $ 30,000,000
▇▇▇▇▇ Fargo Bank, National Association 8.0% $ 14,000,000 $ 20,000,000
UMB Bank, n.a. 4.0% $ 7,000,000 $ 10,000,000
--------- --------------- ---------------
Total Commitment Amount 100.00000% $175,000,000.00 $250,000,000.00
========= =============== ===============
Schedule 2
Guarantors of Payment
Michigan's Adventure, Inc.
Schedule 3
Letters of Credit
1. KeyBank Standby Letter of Credit, #S304499000
Amount: $1,900,000.00
Beneficiary: Hartford Fire Insurance Company
Expires: October 31, 2006
2. KeyBank Standby Letter of Credit, #S304173000
Amount: $8,796,000.00
Beneficiary: Pacific Employers Insurance Company and/or ACE American
Insurance Company
Expires: October 31, 2006
EXHIBIT A
REVOLVING CREDIT NOTE
$ ____________ Cleveland, Ohio
March ___, 2006
FOR VALUE RECEIVED, the undersigned, CEDAR FAIR, L.P., a Delaware limited
partnership, CEDAR FAIR, an Ohio general partnership, MAGNUM MANAGEMENT
CORPORATION, an Ohio corporation, and ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a California general
partnership (collectively, "Borrowers", and individually, each a "Borrower"),
jointly and severally, promise to pay on the last day of the Commitment Period,
as defined in the Credit Agreement (as hereinafter defined), to the order of
____________________ ("Bank") at the Main Office of KEYBANK NATIONAL
ASSOCIATION, as Agent, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ the
principal sum of ________________________________ AND NO/100 DOLLARS
or the aggregate unpaid principal amount of all Revolving Loans made by Bank to
Borrowers pursuant to Section 2.1A of the Credit Agreement, whichever is less,
in lawful money of the United States of America. As used herein, "Credit
Agreement" means the Credit Agreement dated as of March 14, 2006, among
Borrowers, the banks named therein and KeyBank National Association, as Agent,
as the same may from time to time be amended, restated or otherwise modified.
Capitalized terms used herein shall have the meanings ascribed to them in the
Credit Agreement.
Borrowers also promise to pay interest on the unpaid principal amount of
each Revolving Loan from time to time outstanding, from the date of such
Revolving Loan until the payment in full thereof, at the rates per annum that
shall be determined in accordance with the provisions of Section 2.1A of the
Credit Agreement. Such interest shall be payable on each date provided for in
such Section 2.1A; provided, however, that interest on any principal portion
that is not paid when due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Base Rate Loans and LIBOR Loans, and payments of principal of any thereof, shall
be shown on the records of Bank by such method as Bank may generally employ;
provided, however, that failure to make any such entry shall in no way detract
from Borrowers' obligations under this Note.
If this Note shall not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit Agreement, the principal hereof and the unpaid
interest thereon shall bear interest, until paid, at a rate per annum equal to
the Default Rate. All payments of principal of and interest on this Note shall
be made in immediately available funds.
This Note is one of the Revolving Credit Notes referred to in the Credit
Agreement. Reference is made to the Credit Agreement for a description of the
right of the undersigned to
A-1
anticipate payments hereof, the right of the holder hereof to declare this Note
due prior to its stated maturity, and other terms and conditions upon which this
Note is issued.
Except as expressly provided in the Credit Agreement, Borrowers expressly
waive presentment, demand, protest and notice of any kind.
This Note is subject to the terms and conditions of the Intercreditor
Agreement and each holder hereof agrees to be bound thereby.
[Remainder of page intentionally left blank.]
A-2
JURY TRIAL WAIVER. EACH BORROWER, AGENT AND EACH BANK WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, AMONG BORROWERS, AGENT AND THE BANKS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS NOTE OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED THERETO.
CEDAR FAIR, L.P.
By: Cedar Fair Management Inc.,
its Managing General Partner
CEDAR FAIR
By: Magnum Management Corporation,
its Managing General Partner
MAGNUM MANAGEMENT CORPORATION
▇▇▇▇▇'▇ ▇▇▇▇▇ FARM
By: Cedar Fair, L.P.,
its Managing General Partner
By: Cedar Fair Management Inc.,
its Managing General Partner
By
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
As Corporate Vice President, Finance &
Chief Financial Officer of Cedar Fair
Management Inc.
As Vice President, Finance & Chief
Financial Officer of Magnum Management
Corporation
A-3
EXHIBIT B
SWING LINE NOTE
$25,000,000 Cleveland, Ohio
March ___, 2006
FOR VALUE RECEIVED, the undersigned, CEDAR FAIR, L.P., a Delaware limited
partnership, CEDAR FAIR, an Ohio general partnership, MAGNUM MANAGEMENT
CORPORATION, an Ohio corporation, and ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a California general
partnership (collectively, "Borrowers", and individually, "Borrower"), jointly
and severally, promise to pay to the order of KEYBANK NATIONAL ASSOCIATION
("Bank") at the Main Office of KEYBANK NATIONAL ASSOCIATION, Agent, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ the principal sum of TWENTY-FIVE MILLION AND
NO/100 DOLLARS
or, if less, the aggregate unpaid principal amount of all Swing Loans, as
defined in the Credit Agreement (as hereinafter defined) made by Bank to
Borrowers pursuant to Section 2.1B of the Credit Agreement, in lawful money of
the United States of America on the earlier of the last day of the Commitment
Period, as defined in the Credit Agreement, or, with respect to each Swing Loan,
the Swing Loan Maturity Date applicable thereto. As used herein, "Credit
Agreement" means the Credit Agreement dated as of March 14, 2006, among
Borrowers, the banks named therein and KeyBank National Association, as Agent,
as the same may from time to time be amended, restated or otherwise modified.
Capitalized terms used herein shall have the meanings ascribed to them in the
Credit Agreement.
Borrowers also promise to pay interest on the unpaid principal amount of
each Swing Loan from time to time outstanding, from the date of such Swing Loan
until the payment in full thereof, at the rates per annum that shall be
determined in accordance with the provisions of Section 2.1B of the Credit
Agreement. Such interest shall be payable on each date provided for in such
Section 2.1B; provided, however, that interest on any principal portion that is
not paid when due shall be payable on demand.
The principal sum hereof from time to time and the payments of principal
and interest thereon of either hereof, shall be shown on the records of Bank by
such method as Bank may generally employ; provided, however, that failure to
make any such entry shall in no way detract from Borrowers' obligations under
this Note.
If this Note shall not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit Agreement, the principal hereof and the unpaid
interest thereon shall bear interest, until paid, at a rate per annum equal to
the Default Rate. All payments of principal of and interest on this Note shall
be made in immediately available funds.
This Note is the Swing Line Note referred to in the Credit Agreement.
Reference is made to the Credit Agreement for a description of the right of the
undersigned to anticipate payments
B-1
hereof, the right of the holder hereof to declare this Note due prior to its
stated maturity, and other terms and conditions upon which this Note is issued.
Except as expressly provided in the Credit Agreement, Borrowers expressly
waive presentment, demand, protest and notice of any kind.
This Note is subject to the terms and conditions of the Intercreditor
Agreement and each holder hereof agrees to be bound thereby.
[Remainder of page intentionally left blank.]
B-2
JURY TRIAL WAIVER. EACH BORROWER, AGENT AND EACH BANK WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT OR OTHERWISE, AMONG BORROWERS, AGENT AND THE BANKS, OR ANY THEREOF, ARISING
OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH THIS NOTE OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE
TRANSACTIONS RELATED THERETO.
CEDAR FAIR, L.P.
By: Cedar Fair Management Inc.,
its Managing General Partner
CEDAR FAIR
By: Magnum Management Corporation,
its Managing General Partner
MAGNUM MANAGEMENT CORPORATION
▇▇▇▇▇'▇ ▇▇▇▇▇ FARM
By: Cedar Fair, L.P.,
its Managing General Partner
By: Cedar Fair Management Inc.,
its Managing General Partner
By
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
As Corporate Vice President, Finance &
Chief Financial Officer of Cedar Fair
Management Inc.
As Vice President, Finance & Chief
Financial Officer of Magnum Management
Corporation
B-3
EXHIBIT C
NOTICE OF LOAN
[Date]_______________________, 20____
KeyBank National Association, as Agent
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: __________________
Ladies and Gentlemen:
The undersigned, MAGNUM MANAGEMENT CORPORATION, an Ohio Corporation
("Treasury Manager"), refers to the Credit Agreement, dated as of March 14, 2006
("Credit Agreement", the terms defined therein being used herein as therein
defined), among CEDAR FAIR, L.P., a Delaware limited partnership, CEDAR FAIR, an
Ohio general partnership, MAGNUM MANAGEMENT CORPORATION, an Ohio corporation,
and ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a California general partnership (collectively,
"Borrowers", and, individually, each a "Borrower"), the Banks, as defined in the
Credit Agreement, and KeyBank National Association, as Agent, and hereby gives
you notice, pursuant to Section 2.2 of the Credit Agreement that Borrowers
hereby request a Loan under the Credit Agreement, and in connection therewith
sets forth below the information relating to the Loan (the "Proposed Loan") as
required by Section 2.2 of the Credit Agreement:
(a) The Borrower requesting the Loan is __________________________.
(b) The Business Day of the Proposed Loan is __________, 20__.
(c) The amount of the Proposed Loan is $_______________.
(d) The Proposed Loan is to be a Base Rate Loan ____ /LIBOR Loan ___/
Swing Loan ____. (Check one.)
(e) If the Proposed Loan is a LIBOR Loan, the Interest Period
requested is one month ___, two months ___, three months ___, six
months ____. (Check one.)
C-1
The undersigned hereby certifies on behalf of Borrowers that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Loan:
(i) the representations and warranties contained in each Loan Document are
correct, before and after giving effect to the Proposed Loan and the application
of the proceeds therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from such
Proposed Loan, or the application of proceeds therefrom, that constitutes a
Default or Event of Default; and
(iii) the conditions set forth in Section 2.2 and Article IV of the Credit
Agreement have been satisfied.
Very truly yours,
MAGNUM MANAGEMENT CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
C-2
EXHIBIT D
COMPLIANCE CERTIFICATE
For Fiscal Quarter ended ____________________
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(1) I am a duly elected Financial Officer of CEDAR FAIR, L.P., a Delaware
limited partnership ("Cedar Fair LP");
(2) I am familiar with the terms of that certain Credit Agreement, dated as
of March 14, 2006, among CEDAR FAIR LP, CEDAR FAIR, an Ohio general partnership,
MAGNUM MANAGEMENT CORPORATION, an Ohio corporation, and ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a
California general partnership (collectively, "Borrowers", and, individually,
each a "Borrower"), the Banks, as defined in the Credit Agreement, and KEYBANK
NATIONAL ASSOCIATION, as Agent (as the same may from time to time be amended,
restated or otherwise modified, the "Credit Agreement", the terms defined
therein being used herein as therein defined), and the terms of the other Loan
Documents, and I have made, or have caused to be made under my supervision, a
review in reasonable detail of the transactions and condition of Cedar Fair LP
and its Subsidiaries during the accounting period covered by the attached
financial statements;
(3) The review described in paragraph (2) above did not disclose, and I
have no knowledge of, the existence of any condition or event that constitutes
or constituted a Default or Event of Default, at the end of the accounting
period covered by the attached financial statements or as of the date of this
Certificate;
(4) The representations and warranties made by Borrowers contained in each
Loan Document are true and correct as though made on and as of the date hereof;
and
(5) Set forth on Attachment I hereto are calculations of the financial
covenants set forth in Section 5.7 of the Credit Agreement, which calculations
show compliance with the terms thereof.
D-1
IN WITNESS WHEREOF, I have signed this certificate the ____ day of _______,
20___.
CEDAR FAIR, L.P.
By: Cedar Fair Management Inc.
its Managing General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
D-2
EXHIBIT E
FORM OF GUARANTY OF PAYMENT OF DEBT
1. Recitals.
CEDAR FAIR, L.P., a Delaware limited partnership ("Cedar Fair LP"), CEDAR
FAIR, an Ohio general partnership, MAGNUM MANAGEMENT CORPORATION, an Ohio
corporation and ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a California general partnership (together
with their respective successors and assigns, collectively, "Borrowers" and,
individually, each a "Borrower"), are entering into the Credit Agreement, as
hereinafter defined, with the financial institutions listed on Schedule 1 to the
Credit Agreement (together with their respective successors and assigns,
collectively, "Banks" and, individually, each a "Bank") and KEYBANK NATIONAL
ASSOCIATION, as agent for the Banks ("Agent"). [______________________________],
a [_________] [corporation] [limited partnership] ("Guarantor"), desires that
the ▇▇▇▇▇ ▇▇▇▇▇ the financial accommodations to Borrowers as described in the
Credit Agreement.
Guarantor, a subsidiary of Cedar Fair LP whose financing is provided by the
Loans and Letters of Credit, as hereinafter defined, deems it to be in the
direct pecuniary and business interests of Guarantor that Borrowers obtain from
the Agent and the Banks the Commitment, as defined in the Credit Agreement, and
the Loans and Letters of Credit provided for in the Credit Agreement.
Guarantor understands that Agent and the Banks are willing to enter into
the Credit Agreement only upon certain terms and conditions, one of which is
that Guarantor guarantee the payment of the Debt (as hereinafter defined), and
this Guaranty of Payment of Debt (as the same may from time to time be amended,
restated or otherwise modified, this "Agreement") is being executed and
delivered in consideration of Agent and the Banks entering into the Credit
Agreement and for other valuable considerations.
2. Definitions. Except as specifically defined herein, capitalized terms
used herein that are defined in the Credit Agreement shall have their respective
meanings ascribed to them in the Credit Agreement. As used herein, the following
terms shall have the following meanings:
2.1. "Collateral" shall mean, collectively, all property, if any, securing
the Debt or any part thereof at the time in question.
2.2. "Credit Agreement" shall mean the Credit Agreement executed by and
among Borrowers, Agent and the Banks, dated as of March 14, 2006, as the same
may from time to time be amended, restated or otherwise modified.
2.3. "Debt" shall mean, collectively, (a) all Loans and Letters of Credit;
(b) all other indebtedness now owing or hereafter incurred by any Borrower to
Agent and the Banks pursuant to the Credit Agreement and the Notes executed in
connection therewith; (c) each renewal, extension, consolidation or refinancing
of any of the foregoing, in whole or in part; (d) all interest from time to time
accruing on any of the foregoing, and all fees and other amounts
E-1
payable to Agent or any of the Banks pursuant to the Credit Agreement or any
other Loan Document; and (e) all Related Expenses.
2.4. "Letter of Credit" shall mean any Letter of Credit, as defined in the
Credit Agreement, issued pursuant to the Credit Agreement.
2.5. "Loan" shall mean any Loan, as defined in the Credit Agreement,
granted pursuant to the Credit Agreement.
2.6. "Obligor" shall mean any Person that, or any of whose property, is or
shall be obligated on the Debt or any part thereof in any manner and includes,
without limiting the generality of the foregoing, any Borrower or Guarantor, and
any other co-maker, endorser, guarantor of payment, subordinating creditor,
assignor, grantor of a security interest, pledgor, mortgagor or any hypothecator
of property, if any.
2.7. "Person" shall mean any individual, sole proprietorship, partnership,
joint venture, unincorporated organization, corporation, limited liability
company, institution, trust, estate, government or other agency or political
subdivision thereof or any other entity.
2.8. "Related Expenses" shall mean any and all costs, liabilities and
expenses (including, without limitation, losses, damages, penalties, claims,
actions, reasonable attorneys' fees, legal expenses, judgments, suits and
disbursements) (a) incurred by Agent or any Bank, or imposed upon or asserted
against Agent or any Bank, in any attempt by Agent and the Banks to (i) obtain,
preserve, perfect or enforce this Agreement, the Credit Agreement or any Related
Writing, as defined in the Credit Agreement; (ii) obtain payment, performance or
observance of any and all of the Debt; or (iii) maintain, insure, audit,
collect, preserve, repossess or dispose of any of the Collateral or any other
collateral securing the Debt, including, without limitation, costs and expenses
for appraisals, assessments and audits of Borrower or any such collateral; or
(b) incidental or related to (a) above, including, without limitation, interest
thereupon from the date incurred, imposed or asserted until paid at the Default
Rate, as defined in the Credit Agreement.
3. Guaranty of Debt. Guarantor hereby absolutely and unconditionally
guarantees the prompt payment in full of all of the Debt as and when the
respective parts thereof become due and payable. If the Debt, or any part
thereof, shall not be paid in full when due and payable, Agent, on behalf of the
Banks, in each case, shall have the right to proceed directly against Guarantor
under this Agreement to collect the payment in full of the Debt, regardless of
whether or not Agent, on behalf of the Banks, shall have theretofore proceeded
or shall then be proceeding against any Borrower or any other Obligor or
Collateral, if any, or any of the foregoing, it being understood that Agent and
the Banks, in their sole discretion may proceed against any Obligor and any
Collateral, and may exercise each right, power or privilege that Agent or the
Banks may then have, either simultaneously or separately, and, in any event, at
such time or times and as often and in such order as Agent and the Required
Banks, in their sole discretion, may from time to time deem expedient to collect
the payment in full of the Debt.
4. Payments Conditional. Whenever Agent or any Bank shall credit any
payment to the Debt or any part thereof, whatever the source or form of payment,
the credit shall be
E-2
conditional as to Guarantor unless and until the payment shall be final and
valid as to all the world. Without limiting the generality of the foregoing,
Guarantor agrees that if any check or other instrument so applied shall be
dishonored by the drawer or any party thereto, or if any proceeds of Collateral
or payment so applied shall thereafter be recovered by any trustee in bankruptcy
or any other Person, each Bank, in each case, may reverse any entry relating
thereto on its books and Guarantor shall remain liable therefor, even if such
Bank may no longer have in its possession any evidence of the Debt to which the
payment in question was applied.
5. Guarantor's Obligations Absolute and Unconditional. Regardless of the
duration of time, regardless of whether any Borrower may from time to time cease
to be indebted to Agent or the Banks and irrespective of any act, omission or
course of dealing whatever on the part of Agent or any of the Banks, Guarantor's
liabilities and other obligations under this Agreement shall remain in full
effect until the payment in full of the Debt. Without limiting the generality of
the foregoing:
5.1. Banks Have No Duty To Make Advances. No Bank shall at any time be
under any duty to Guarantor to grant any financial accommodation to any
Borrower, irrespective of any duty or commitment of any of the Banks to such
Borrower, or to follow or direct the application of the proceeds of any such
financial accommodation;
5.2. Guarantor's Waiver of Notice, Presentment, etc. Guarantor waives (a)
notice of the granting of any Loan to any Borrower, the issuance of any Letter
of Credit or the incurring of any other indebtedness by any Borrower or the
terms and conditions thereof, (b) presentment, demand for payment and notice of
dishonor of the Debt or any part thereof, or any other indebtedness incurred by
any Borrower to any of the Banks, (c) notice of any indulgence granted to any
Obligor and (d) any other notice to which Guarantor might, but for this waiver,
be entitled;
5.3. Banks' Rights Not Prejudiced by Action or Omission. Agent and the
Banks, in their sole discretion, may, without any prejudice to their rights
under this Agreement, at any time or times, without notice to or the consent of
Guarantor, (a) grant any Borrower whatever financial accommodations that Agent
and the Banks may from time to time deem advisable, even if such Borrower might
be in default in any respect and even if those financial accommodations might
not constitute indebtedness the payment of which is guaranteed hereunder, (b)
assent to any renewal, extension, consolidation or refinancing of the Debt, or
any part thereof, (c) forbear from demanding security, if Agent and the Banks
shall have the right to do so, (d) release any Obligor or Collateral or assent
to any exchange of Collateral, if any, irrespective of the consideration, if
any, received therefor, (e) grant any waiver or consent or forbear from
exercising any right, power or privilege that Agent and the Banks may have or
acquire, (f) assent to any amendment, deletion, addition, supplement or other
modification in, to or of any writing evidencing or securing any Debt or
pursuant to which any Debt is created, (g) grant any other indulgence to any
Obligor, (h) accept any Collateral for, or any other Obligor upon, the Debt or
any part thereof, and (i) fail, neglect or omit in any way to realize upon any
Collateral or to protect the Debt or any part thereof or any Collateral
therefor;
5.4. Liabilities Survive Guarantor's Dissolution. Guarantor's liabilities
and other obligations under this Agreement shall survive any dissolution of
Guarantor; and
E-3
5.5. Liabilities Absolute and Unconditional. Guarantor's liabilities and
other obligations under this Agreement shall be absolute and unconditional
irrespective of any lack of validity or enforceability of the Credit Agreement,
the Notes, any Loan Document or any other Related Writing, or any other defense
available to Guarantor in respect of this Agreement.
6. Representations and Warranties. Guarantor represents and warrants to
Agent and each of the Banks that (a) Guarantor is a duly [organized] [formed]
and validly existing [corporation] [limited partnership], in [good standing]
[full force and effect] under the laws of the state of its [incorporation]
[formation] (as referenced in the first paragraph of this Agreement), and is
qualified to do business in each state where a failure to so qualify would have
a material adverse effect on Guarantor; (b) Guarantor has legal power and right
to execute and deliver this Agreement and to perform and observe the provisions
hereof; (c) the [officers] [general partner[s]] [members] executing and
delivering this Agreement on behalf of Guarantor have been duly authorized to do
so, and this Agreement, when executed, is legal and binding upon Guarantor in
every respect; (d) except for matters described or referenced in the Credit
Agreement or any Schedule thereto, no litigation or proceeding is pending or
threatened against Guarantor before any court or any administrative agency that,
in Guarantor's opinion, after consultation with Guarantor's counsel, is
reasonably expected to have a material adverse effect on Guarantor; (e)
Guarantor has received consideration that is the reasonable equivalent value of
the obligations and liabilities that Guarantor has incurred to Agent, for the
benefit of the Banks; (f) Guarantor is not insolvent, as defined in any
applicable state or federal statute, nor will Guarantor be rendered insolvent by
the execution and delivery of this Agreement to Agent and the Banks; (g)
Guarantor is not engaged or about to engage in any business or transaction for
which the assets retained by Guarantor are or will be an unreasonably small
amount of capital, taking into consideration the obligations to the Banks
incurred hereunder; and (h) Guarantor does not intend to, nor does Guarantor
believe that Guarantor will, incur debts beyond Guarantor's ability to pay such
debts as they mature.
7. Disability of Obligor. Without limiting the generality of any of the
other provisions hereof, Guarantor specifically agrees that upon the dissolution
of any Obligor and/or the filing or other commencement of any bankruptcy or
insolvency proceedings by, for or against any Obligor, including without
limitation, any assignment for the benefit of creditors or other proceedings
intended to liquidate or rehabilitate any Obligor, Agent and the Required Banks,
in their sole discretion, may declare the unpaid principal balance of and
accrued interest on the Debt to be forthwith due and payable in full without
notice. Upon the occurrence of any of the events enumerated in the immediately
preceding sentence, Guarantor shall, upon demand of Agent, on behalf of the
Banks, whenever made, pay to Agent, for the benefit of the Banks, an amount
equal to the then unpaid principal balance of and accrued interest on the Debt.
8. Waiver of Guarantor's Rights Against Borrowers and Collateral. To the
extent permitted by law, Guarantor waives any claim or other right that
Guarantor might now have or hereafter acquire against any Borrower or any other
Obligor that arises from the existence or performance of Guarantor's liabilities
or other obligations under this Agreement, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of Agent or any Bank against
any Borrower or any Collateral that Agent or any Bank now has or hereafter
acquires,
E-4
whether or not such claim, remedy or right arises in equity, or under contract,
statute or common law.
9. Maximum Liability of Guarantor. Anything in this Agreement to the
contrary notwithstanding, in no event shall the amount of Guarantor's liability
hereunder exceed the maximum amount that (after giving effect to the incurring
of the obligations hereunder and to any rights to contribution of Guarantor from
other affiliates of Borrowers) would not render the rights to payment of Agent
and the Banks hereunder void, voidable or avoidable under any applicable
fraudulent transfer law.
10. Notice. All notices, requests, demands and other communications
provided for hereunder shall be in writing and, if to Guarantor, mailed or
delivered to it, addressed to it at the address specified on the signature page
of this Agreement, if to Agent or any Bank, mailed or delivered to it, addressed
to the address of such Agent or such Bank specified on the signature pages of
the Credit Agreement. All notices, statements, requests, demands and other
communications provided for hereunder shall be deemed to be given or made when
delivered or forty-eight (48) hours after being deposited in the mails with
postage prepaid by registered or certified mail, addressed as aforesaid, or sent
by facsimile with telephonic confirmation of receipt, except that notices shall
not be effective until received.
11. Miscellaneous. This Agreement shall bind Guarantor and Guarantor's
successors and assigns and shall inure to the benefit of Agent and each Bank and
their respective successors and assigns, including (without limitation) each
holder of any Note evidencing any Debt. If, at any time, one or more provisions
of this Agreement is or becomes invalid, illegal or unenforceable in whole or in
part, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby. This Agreement constitutes
a final written expression of all of the terms of this Agreement, is a complete
and exclusive statement of those terms and supersedes all oral representations,
negotiations and prior writings, if any, with respect to the subject matter
hereof. The relationship between (a) Guarantor and (b) Agent and the Banks with
respect to this Agreement is and shall be solely that of debtor and creditors,
respectively, and Agent and the Banks shall have no fiduciary obligation toward
Guarantor with respect to this Agreement or the transactions contemplated
hereby. The captions herein are for convenience of reference only and shall be
ignored in interpreting the provisions of this Agreement.
12. Governing Law; Submission to Jurisdiction. The provisions of this
Agreement and the respective rights and duties of Guarantor, Agent and the Banks
hereunder shall be governed by and construed in accordance with Ohio law,
without regard to principles of conflict of laws. Guarantor hereby irrevocably
submits to the non-exclusive jurisdiction of any Ohio state or federal court
sitting in Cleveland, Ohio, over any action or proceeding arising out of or
relating to this Agreement, any Loan Document or any Related Writing, and
Guarantor hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such Ohio state or federal court.
Guarantor, on behalf of itself and its Subsidiaries, hereby irrevocably waives,
to the fullest extent permitted by law, any objection it may now or hereafter
have to the laying of venue in any action or proceeding in any such court as
well as any right it may now or hereafter have to remove such action or
proceeding, once commenced, to another court on the grounds of FORUM NON
CONVENIENS or otherwise.
E-5
Guarantor agrees that a final, nonappealable judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
[Remainder of page intentionally left blank.]
▇-▇
▇▇. JURY TRIAL WAIVER. Guarantor, Agent and the Banks, to the extent
permitted by law, each waives any right to have a jury participate in resolving
any dispute, whether sounding in contract, tort, or otherwise, among Agent, any
of the Banks, any Borrower and/or Guarantor arising out of, in connection with,
related to, or incidental to the relationship established between each of them
and Guarantor in connection with this Agreement or any note or other agreement,
instrument or document executed or delivered in connection therewith or the
transactions related thereto.
Signed as of the ____ day of _____________, 20__, at Cleveland, Ohio.
Address: ▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ [__________________________________]
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial
Officer
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-7
EXHIBIT F
INTERCREDITOR AGREEMENT
THIS INTERCREDITOR AGREEMENT, dated as of March 14, 2006 (herein, as
amended, restated or otherwise modified from time to time in accordance with the
terms hereof, referred to as this "Agreement"), among:
(i) KEYBANK NATIONAL ASSOCIATION, a national banking association, in
its capacity as administrative agent under the Credit Agreement, as
hereinafter defined (herein in such capacity, together with its successors
and assigns in such capacity, "Agent"), for itself and on behalf of and for
the benefit of the financial institutions that are the Banks under the
Credit Agreement (herein, together with their respective successors and
assigns, individually a "Bank" and collectively, the "Banks");
(ii) the institutional investors signatory hereto that are the holders
of the Senior Prudential Notes issued under the Prudential Note Agreements,
as hereinafter defined (herein, together with each additional Prudential
Noteholder that shall become a party to this Agreement pursuant to SECTION
13 hereof, together with their respective successors and assigns,
individually a "Prudential Noteholder" and collectively, the "Prudential
Noteholders");
(iii) the institutional investors signatory hereto that are the
holders of the Senior 2002 Notes issued under the 2002 Note Agreements, as
hereinafter defined (herein, together with each additional 2002 Noteholder
that shall become a party to this Agreement pursuant to SECTION 13 hereof,
together with their respective successors and assigns, individually a "2002
Noteholder" and collectively, the "2002 Noteholders"); and
(iv) the institutional investors signatory hereto that are the holders
of the Senior 2003 Notes issued under the 2003 Note Agreements, as
hereinafter defined (herein, together with each additional 2003 Noteholder
that shall become a party to this Agreement pursuant to SECTION 13 hereof,
together with their respective successors and assigns, individually a "2003
Noteholder" and collectively, the "2003 Noteholders").
PRELIMINARY STATEMENTS:
(1) All terms used herein that are defined in SECTION 1 hereof or in the
text of any other section hereof shall have the meanings given therein.
(2) Pursuant to the Credit Agreement, Agent and the Banks have made and
expect hereafter to make Loans to Borrowers and participate in the issuance of
Letters of Credit for the account of Borrowers and certain Subsidiaries of
Borrowers.
(3) Pursuant to the Prudential Note Agreements, the Prudential Noteholders
have purchased the Senior Prudential Notes.
F-1
(4) Pursuant to the 2002 Note Agreements, the 2002 Noteholders have
purchased the Senior 2002 Notes.
(5) Pursuant to the 2003 Note Agreements, the 2003 Noteholders have
purchased or expect to purchase the Senior 2003 Notes.
(6) Pursuant to the Credit Agreement Guaranties, the Credit Agreement
Guarantors have or will guarantee the Senior Indebtedness owed to Agent and the
Banks under the Credit Agreement.
(7) Pursuant to the Prudential Note Guaranties, the Prudential Note
Guarantors have or will guarantee the Senior Indebtedness owed to the Prudential
Noteholders under the Prudential Note Agreements.
(8) Pursuant to the 2002 Note Guaranties, the 2002 Note Guarantors have or
will guarantee the Senior Indebtedness owed to the 2002 Noteholders under the
2002 Note Agreements.
(9) Pursuant to the 2003 Note Guaranties, the 2003 Note Guarantors have or
will guarantee the Senior Indebtedness owed to the 2003 Noteholders under the
2003 Note Agreements.
(10) The willingness of the Prudential Noteholders, the 2002 Noteholders
and the 2003 Noteholders to consent to the execution and delivery of the Credit
Agreement and the Credit Agreement Guaranties and the incurrence by Borrowers of
the Credit Agreement Notes and other obligations under the Credit Agreement is
conditioned upon, among other things, the execution and delivery of this
Agreement.
(11) Each of the Senior Creditors, solely for the benefit of one another
and without creating any rights in Borrowers, any Guarantor or any other Person,
desires to enter into this Agreement for the purpose, and pursuant to the terms
and provisions hereinafter set forth, of sharing certain payments received by
such Senior Creditor with respect to the Senior Indebtedness, and for the
purpose of governing the relationships among themselves with respect thereto.
NOW, THEREFORE, for the above reasons, in consideration of the mutual
covenants herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS.
For the purposes of this Agreement, the following terms shall have the
meanings specified with respect thereto below. Any plural term that is used
herein in the singular shall be taken to mean each entity or item of the defined
class and any singular term that is used herein in the plural shall be taken to
mean all of the entities or items of the defined class, collectively.
F-2
"Agent" shall have the meaning given in the introductory paragraph hereof.
"Bank" or "Banks" shall have the meaning given in the introductory
paragraph hereof.
"Borrower" shall mean Cedar Fair LP, Cedar Fair, Magnum Management, ▇▇▇▇▇'▇
▇▇▇▇▇ Farm or any other Subsidiary of Cedar Fair LP that shall become a Borrower
under the Credit Agreement, in each case together with their respective
successors and assigns.
"Borrowers" shall mean, collectively, Cedar Fair LP, Cedar Fair, Magnum
Management, ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm and each other Subsidiary of Cedar Fair LP that
shall become a Borrower under the Credit Agreement, in each case together with
their respective successors and assigns.
"Business Day" shall mean any day on which banking institutions in the
cities of Cleveland, Ohio, Chicago, Illinois and New York, New York are
authorized to do business, excluding Saturdays, Sundays and legal holidays on
which banking institutions are authorized by law or other governmental actions
to be closed.
"Cedar Fair" shall mean Cedar Fair, an Ohio general partnership, together
with its successors and assigns.
"Cedar Fair LP" shall mean Cedar Fair L.P., a Delaware limited partnership,
together with its successors and assigns.
"Credit Agreement" shall mean the Credit Agreement, dated as of March 14,
2006, among Borrowers, the Banks and Agent, as such agreement may from time to
time be amended, restated or otherwise modified.
"Credit Agreement Guarantor" shall mean each Subsidiary that is a guarantor
under a Credit Agreement Guaranty, and each other Subsidiary that hereafter
shall execute a Credit Agreement Guaranty pursuant to the Credit Agreement, in
each case together with such Subsidiary's respective successors and assigns.
"Credit Agreement Guaranty" shall mean a Guaranty of Payment, as defined in
the Credit Agreement, executed and delivered by any Credit Agreement Guarantor
in connection with the Credit Agreement, as the same may from time to time be
amended, restated or otherwise modified, including any instrument hereafter
delivered by a Subsidiary pursuant to Section 5.19 of the Credit Agreement
wherein a Subsidiary shall become a Credit Agreement Guarantor.
"Credit Agreement Note" shall mean a Note, as defined in the Credit
Agreement or any other promissory note issued pursuant to the Credit Agreement.
"Credit Party" shall mean a Borrower or a Guarantor.
"Declared Sharing Period" shall mean a period of time subsequent to the
execution and delivery of this Agreement during which at all times an Event of
Default shall have occurred and
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be continuing under either a Note Agreement or the Credit Agreement, or both,
and as to which either:
(a) the Required Prudential Noteholders, in the case of an Event of
Default under a Prudential Note Agreement, shall have notified Agent (a
copy of which notice shall be promptly given by Agent to the Banks), the
2002 Noteholders and the 2003 Noteholders in writing that a Declared
Sharing Period has commenced, specifying the event or events giving rise to
the Declared Sharing Period and the date of commencement of the Declared
Sharing Period (which shall not be more than forty-five (45) days prior to,
or later than five Business Days following, the receipt by Agent, the 2002
Noteholders and the 2003 Noteholders of any such notice); or
(b) the Required 2002 Noteholders, in the case of an Event of Default
under a 2002 Note Agreement, shall have notified Agent (a copy of which
notice shall be promptly given by Agent to the Banks), the Prudential
Noteholders and the 2003 Noteholders in writing that a Declared Sharing
Period has commenced, specifying the event or events giving rise to the
Declared Sharing Period and the date of commencement of the Declared
Sharing Period (which shall not be more than forty-five (45) days prior to,
or later than five Business Days following, the receipt by Agent, the
Prudential Noteholders and the 2003 Noteholders of any such notice); or
(c) the Required 2003 Noteholders, in the case of an Event of Default
under a 2003 Note Agreement, shall have notified Agent (a copy of which
notice shall be promptly given by Agent to the Banks), the Prudential
Noteholders and the 2002 Noteholders in writing that a Declared Sharing
Period has commenced, specifying the event or events giving rise to the
Declared Sharing Period and the date of commencement of the Declared
Sharing Period (which shall not be more than forty-five (45) days prior to,
or later than five Business Days following, the receipt by Agent, the
Prudential Noteholders and the 2002 Noteholders of any such notice); or
(d) Agent (acting only on instructions from the Required Banks), in
the case of an Event of Default under the Credit Agreement, shall have
notified the Noteholders in writing that a Declared Sharing Period has
commenced, specifying the event or events giving rise to the Declared
Sharing Period and the date of commencement of the Declared Sharing Period
(which shall not be more than forty-five (45) days prior to, or later than
five (5) Business Days following, the receipt by the Noteholders of any
such notice).
A Declared Sharing Period may be rescinded or terminated at any time pursuant to
the written consent or instructions of (i) the Required Prudential Noteholders,
in the case of a Declared Sharing Period commenced under clause (A) above, (ii)
the Required 2002 Noteholders, in the case of a Declared Sharing Period
commenced under clause (B) above, (iii) the Required 2003 Noteholders, in the
case of a Declared Sharing Period commenced under clause (C) above, or (iv) the
Required Banks, in the case of a Declared Sharing Period commenced under clause
(D) above, in each case delivered to Agent (a copy of which consent or
instructions shall promptly be furnished by Agent to all Senior Creditors).
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"Enforcement" shall mean (a) for one or more Senior Creditors to make
demand for payment of, or accelerate the time for payment prior to the scheduled
payment date of, any Senior Indebtedness; (b) for one or more Senior Creditors
to commence the judicial enforcement of any rights or remedies under or with
respect to the Credit Agreement, any Note Agreement, any Credit Agreement
Guaranty, any Note Guaranty or any other evidence of any Senior Indebtedness, or
to setoff or appropriate any balances held by it for the account of any Credit
Party or any other property at any time held or owing by it to or for the credit
of, or otherwise for the account of, any Credit Party; or (c) if the Commitment,
as defined in the Credit Agreement, is terminated by the Required Banks.
"Event of Default" shall mean an "Event of Default," as defined in the
Credit Agreement, or an "Event of Default," as defined in any Note Agreement, in
either case that has not been waived in writing by the appropriate parties.
"Guarantor" shall mean a Credit Agreement Guarantor or Note Guarantor.
"Guaranty" shall mean a Credit Agreement Guaranty or a Note Guaranty.
"Insolvency Event" shall mean and include:
(a) the pendency of any case against any Credit Party arising under
the Bankruptcy Code of 1978, as amended, or any successor statute;
(b) the pendency of any case against any Credit Party arising under
any other bankruptcy, reorganization, compromise, arrangement, insolvency,
readjustment of debt, dissolution, liquidation or other similar law of any
jurisdiction;
(c) the appointment of, or taking possession by, a trustee, receiver,
custodian, liquidator or similar official of any Credit Party or any
substantial assets of any of them;
(d) any assignment for the benefit of creditors of any Credit Party;
and
(e) the failure of any Credit Party generally to pay its debts as they
become due.
"▇▇▇▇▇'▇ ▇▇▇▇▇ Farm" shall mean ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm, a California general
partnership, together with its successors and assigns.
"Letter of Credit" shall mean any letter of credit issued by Agent or a
Fronting Bank, as defined in the Credit Agreement, for the account of a Borrower
or any Subsidiary, including any Letter of Credit, as defined in the Credit
Agreement, issued under the Credit Agreement.
"Letter of Credit Exposure" shall mean, at any time, the sum of (a) the
aggregate undrawn face amount of all issued and outstanding Letters of Credit,
and (b) the aggregate draws made on Letters of Credit that are not yet
reimbursed by Borrowers or converted to a Revolving Loan, as defined in the
Credit Agreement, pursuant to Section 2.1C of the Credit Agreement.
F-5
"Loan" shall mean any loan made by Agent or the Banks to a Borrower under
the Credit Agreement, including, but not limited to, any Revolving Loan or Swing
Loan, as defined in the Credit Agreement.
"Loan and Reimbursement Obligations" shall mean, at any time, the sum of
(a) the aggregate outstanding principal amount of the Loans and (b) the Letter
of Credit Exposure.
"Magnum Management" shall mean Magnum Management Corporation, an Ohio
corporation, together with its successors and assigns.
"Note Agreements" shall mean collectively the Prudential Note Agreements,
the 2002 Note Agreements and the 2003 Note Agreements.
"Note Guarantor" shall mean collectively the Prudential Note Guarantors,
the 2002 Note Guarantors and the 2003 Note Guarantors.
"Note Guaranty" shall mean collectively the Prudential Note Guaranty, the
2002 Note Guaranty and the 2003 Note Guaranty.
"Noteholder" or "Noteholders" shall mean a Prudential Noteholder, a 2002
Noteholder or a 2003 Noteholder or collectively the Prudential Noteholders, the
2002 Noteholders and the 2003 Noteholders.
"Payment to be Shared" shall have the meaning given in SECTION 3(B).
"Person" shall mean any individual, sole proprietorship, partnership, joint
venture, trust, unincorporated organization, corporation, limited liability
company, institution, estate, government or other agency or political
subdivision thereof or any other entity.
"Prudential Note Agreements" shall mean, collectively, (a) the Private
Shelf Agreement, dated as of August 24, 1994, as amended and as the same may
from time to time be amended, restated or otherwise modified, among Cedar Fair
LP and the Prudential Noteholders named therein, and (b) the Amended and
Restated Note Purchase and Private Shelf Agreements, dated as of April 7, 2004,
among Cedar Fair LP, ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm and the Prudential Noteholders named
therein, as amended and as the same may from time to time be amended, restated
or otherwise modified.
"Prudential Note Guarantor" shall mean each Subsidiary that is a guarantor
under the Prudential Note Guaranty, and each other Subsidiary that hereafter
executes a Prudential Note Guaranty pursuant to the Prudential Note Agreements,
in each case together with such Subsidiary's respective successors and assigns.
"Prudential Note Guaranty" shall mean a guaranty of payment made by each
existing or future Prudential Note Guarantor in favor of the Prudential
Noteholders, as the same may from time to time be amended, restated or otherwise
modified, including any instrument hereafter
F-6
delivered by a Subsidiary pursuant to the Prudential Note Agreements wherein a
Subsidiary shall become a Prudential Note Guarantor.
"Prudential Noteholder" or "Prudential Noteholders" shall have the meaning
given in the introductory paragraph hereof.
"Required Banks" shall have the meaning ascribed to such term in the Credit
Agreement.
"Required Prudential Noteholders" shall mean, at any time, the holders of
at least a majority in aggregate principal amount of the Senior Prudential Notes
outstanding at such time.
"Required 2002 Noteholders" shall mean, at any time, the holders of at
least a majority in aggregate principal amount of the Senior 2002 Notes
outstanding at such time.
"Required 2003 Noteholders" shall mean, at any time, the holders of at
least a majority in aggregate principal amount of the Senior 2003 Notes
outstanding at such time.
"Senior Creditor" shall mean Agent, a Bank or a Noteholder.
"Senior Indebtedness" shall mean (a) the Loan and Reimbursement
Obligations; (b) the principal amount of the Senior Notes; and (c) all of the
other present or future indebtedness, liabilities and obligations of any Credit
Party now or hereafter owed to Agent or the Banks by virtue of or pursuant to
the Credit Agreement or any Credit Agreement Notes or the Noteholders by virtue
of or pursuant to any Note Agreement or the Senior Notes, or any guaranty
executed in connection with any of the foregoing, including, without limitation,
all interest on the Loans and the Senior Notes, all fees, costs, expenses,
indemnities, any Yield-Maintenance Amounts, any 2002 Make Whole Amount and any
2003 Make Whole Amount.
"Senior Notes" shall mean collectively the Senior Prudential Notes, the
Senior 2002 Notes and the Senior 2003 Notes.
"Senior Prudential Notes" shall mean each of the Senior Notes issued
pursuant to the Prudential Note Agreements.
"Senior 2002 Notes" shall mean each of the Senior Notes issued pursuant to
the 2002 Note Agreements.
"Senior 2003 Notes" shall mean each of the Senior Notes issued pursuant to
the 2003 Note Agreements.
"Shared Proceeds" shall have the meaning given in SECTION 3(A).
"Subsidiary" shall mean a subsidiary, whether direct or indirect, of a
Borrower.
"2002 Make Whole Amount" shall mean the "Make-Whole Amount", as defined in
the 2002 Note Agreements.
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"2002 Note Agreements" shall mean, collectively, the separate and several
Note Purchase Agreements, each dated as of February 8, 2002, among Cedar Fair
LP, ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm, Cedar Fair, Magnum Management and the 2002 Noteholders
named therein, and as the same may from time to time be amended, restated or
otherwise modified.
"2002 Note Guarantor" shall mean each Subsidiary that is a guarantor under
the 2002 Note Guaranty, and each other Subsidiary that hereafter executes a 2002
Note Guaranty pursuant to the 2002 Note Agreements, in each case together with
such Subsidiary's respective successors and assigns.
"2002 Note Guaranty" shall mean a guaranty of payment made by each existing
or future 2002 Note Guarantor in favor of the 2002 Noteholders, as the same may
from time to time be amended, restated or otherwise modified, including any
instrument hereafter delivered by a Subsidiary pursuant to the 2002 Note
Agreements wherein a Subsidiary shall become a 2002 Note Guarantor.
"2002 Noteholder" or "2002 Noteholders" shall have the meaning given in the
introductory paragraph hereof.
"2003 Make Whole Amount" shall mean the "Make-Whole Amount", as defined in
the 2003 Note Agreements.
"2003 Note Agreements" shall mean, collectively, the separate and several
Note Purchase Agreements, each dated as of December 22, 2003, among Cedar Fair
LP, ▇▇▇▇▇'▇ ▇▇▇▇▇ Farm, Cedar Fair, Magnum Management and the 2003 Noteholders
named therein, and as the same may from time to time be amended, restated or
otherwise modified.
"2003 Note Guarantor" shall mean each Subsidiary that is a guarantor under
the 2003 Note Guaranty, and each other Subsidiary that hereafter executes a 2003
Note Guaranty pursuant to the 2003 Note Agreements, in each case together with
such Subsidiary's respective successors and assigns.
"2003 Note Guaranty" shall mean a guaranty of payment made by each existing
or future 2003 Note Guarantor in favor of the 2003 Noteholders, as the same may
from time to time be amended, restated or otherwise modified, including any
instrument hereafter delivered by a Subsidiary pursuant to the 2003 Note
Agreements wherein a Subsidiary shall become a 2003 Note Guarantor.
"2003 Noteholder" or "2003 Noteholders" shall have the meaning given in the
introductory paragraph hereof.
"Yield-Maintenance Amount" shall mean the "Yield-Maintenance Amount," as
defined in any Prudential Note Agreement.
F-8
SECTION 2. CERTAIN NOTICES.
Each Senior Creditor agrees to use its best efforts to give to the other
Senior Creditors,
(a) copies of any notice of the occurrence or existence of an Event of
Default sent to any Credit Party, simultaneously with the sending of such
notice to such Credit Party,
(b) notice of the occurrence or existence of an Event of Default of
which such Senior Creditor has knowledge, promptly after obtaining
knowledge thereof, and
(c) notice of an Enforcement by such Senior Creditor prior to
commencing such Enforcement,
provided that the failure to give any of the foregoing notices shall not affect
the validity of such notice of an Event of Default given to Agent or a Credit
Party or create a cause of action against or cause a forfeiture of any rights of
the party failing to give such notice or create any claim or right on behalf of
any third party.
SECTION 3. SHARING OF CERTAIN PAYMENTS.
(a) Certain Payments to Be Shared. Each Senior Creditor shall share with
the other Senior Creditors, in accordance with SECTION 3(B) hereof, the
following (such items specified in the following clauses (I) through (III) being
hereinafter referred to collectively as the "Shared Proceeds"):
(i) Payments During Declared Sharing Period or after an Enforcement or
an Insolvency Event. During a Declared Sharing Period, and at all times
after the occurrence of an Enforcement or an Insolvency Event, all payments
and prepayments received by such Senior Creditor (or received by Agent for
the benefit of any of the Senior Creditors and actually distributed to such
Senior Creditor) from any Borrower in respect of any Senior Indebtedness,
including, without limitation, any amounts or other property or securities
collected by or distributed to or otherwise received by such Senior
Creditor (or received and actually distributed by Agent as aforesaid) from
or in respect of any Borrower as a result of (A) any Enforcement of any
Senior Indebtedness, (B) the exercise of any remedy or counterclaim in
connection therewith, or (C) any purchases or acquisitions for value by
Borrowers of any Senior Indebtedness or interests or participations
therein;
(ii) Payments under Any Guaranty. All payments or prepayments received
by such Senior Creditor (or received by Agent for the benefit of any of the
Senior Creditors and actually distributed to such Senior Creditor) from any
Guarantor in respect of any obligation of such Guarantor under any
Guaranty, including, without limitation, any amounts or other property or
securities collected by or distributed to or otherwise received by such
Senior Creditor (or received and actually distributed by Agent as
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aforesaid) from or in respect of a Guarantor as a result of any Enforcement
of any Guaranty, or the exercise of any remedy or counterclaim in
connection therewith; and
(iii) Setoffs, Et Cetera. Without limitation of the foregoing, any and
all amounts received from any Credit Party pursuant to the exercise of any
right of setoff, offset or banker's lien.
(b) Distribution of Payments to Be Shared. If any Senior Creditor shall
receive any Shared Proceeds (any such Shared Proceeds, less any costs and
expenses, including, without limitation, attorneys' fees and expenses, incurred
by any Senior Creditor in recovering such Shared Proceeds, is herein referred to
as a "Payment to be Shared"), such Senior Creditor shall distribute the Payment
to be Shared to the other Senior Creditors in the priority set forth in SECTION
3(C) hereof.
If any Payment to be Shared received by any Senior Creditor is required to
be repaid or returned, in whole or in part, by such Senior Creditor to the payor
thereof or such Payment to be Shared is otherwise rescinded, in whole or in
part, pursuant to applicable law, each other Senior Creditor that shall have
received all or part of such Payment to be Shared pursuant to this SECTION 3(B)
shall promptly, upon written demand, return all or the ratable part, as the case
may be, of the portion of the Payment to be Shared so received by such other
Senior Creditor (and any interest thereof to the extent the same is required to
be paid by the Senior Creditor originally receiving such Payment to be Shared in
respect of the return of such Payment to be Shared) in order to equitably adjust
for the return of all or part of such Payment to be Shared.
(c) Priority of Distributions. The distribution of a Payment to be Shared
shall be made in the following order of priority:
(i) First, to the Senior Creditors in the amount of any unpaid accrued
interest on the Senior Indebtedness, pro rata in proportion to the
respective amounts of such unpaid accrued interest owed to each Senior
Creditor;
(ii) Next, to the extent proceeds remain, to the Senior Creditors
(without priority to any of the following items over the other) in the
amount of (A) the outstanding principal amount of the Senior Indebtedness,
(B) the amount of the Letter of Credit Exposure, (C) the Yield-Maintenance
Amount, up to not more than Four Hundred Thousand Dollars ($400,000)
thereof, (D) any unpaid accrued facility or commitment fees payable under
the Credit Agreement, up to not more than Four Hundred Thousand Dollars
($400,000) thereof, (E) the 2002 Make Whole Amount, up to not more than
Four Hundred Thousand Dollars ($400,000) thereof, and (F) the 2003 Make
Whole Amount, up to not more than Four Hundred Thousand Dollars ($400,000)
thereof, pro rata in proportion to the respective amounts thereof owed to
each Senior Creditor, subject, in the case of the Letter of Credit
Exposure, to the provisions of SECTION 3(D) hereof;
(iii) Next, to the extent proceeds remain, to the Senior Creditors
(without priority to any of the following items over the other) in the
amount of (A) any excess of the Yield-Maintenance Amount over Four Hundred
Thousand Dollars ($400,000),
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(B) any excess of unpaid accrued facility fees under the Credit Agreement
over Four Hundred Thousand Dollars ($400,000), (C) any excess of the 2002
Make Whole Amount over Four Hundred Thousand Dollars ($400,000), (D) any
excess of the 2003 Make Whole Amount over Four Hundred Thousand Dollars
($400,000), and (E) any other unpaid amounts owing under the Credit
Agreement or any Note Agreement or any agreement or instrument related
thereto, or otherwise with respect to any Senior Indebtedness, pro rata in
proportion to the respective amounts thereof owed to each Senior Creditor;
and
(iv) Finally, to the extent proceeds remain after all Senior
Indebtedness owed to the Senior Creditors has been paid in full and all
other obligations of any Credit Party to any of the Senior Creditors that
have been incurred in connection therewith have been fully satisfied, to
Borrowers or such other Person or Persons as shall be lawfully entitled
thereto.
(d) Special Provisions Regarding Letters of Credit. If, at any time, Agent
or any Bank is entitled pursuant to CLAUSE (II) of SECTION 3(C) hereof to have
any amount (a "Distributable Amount") distributed to it as a consequence of the
inclusion in Letter of Credit Exposure of the aggregate amount available for
drawing under any Letter of Credit issued by Agent (or any other Bank) or
participated in by such Bank, such Distributable Amount shall not be so
distributed to Agent or such Bank but shall instead be distributed to Agent and
deposited by Agent in a special interest bearing account (the "Letter of Credit
Reserve Account") under the sole dominion and control of Agent, and shall be
applied and distributed to Agent or such Bank, as the case may be, if and to the
extent that such Letter of Credit is honored. If such Letter of Credit is not
honored (or is not honored in the full amount thereof) the balance of the funds
in the Letter of Credit Reserve Account in respect of such Letter of Credit and
not distributed pursuant to the immediately preceding sentence shall, upon
expiry of such Letter of Credit, be distributed to the Senior Creditors pursuant
to SECTION 3(C) hereof, or in the event no Senior Indebtedness is outstanding,
to whomsoever shall be lawfully entitled thereto. For purposes of determining
the amount of the Letter of Credit Exposure under clause (II) of SECTION 3(C)
hereof with respect to any Letter of Credit, the undrawn face amount of such
Letter of Credit shall be reduced by the then amount, if any, held in the Letter
of Credit Reserve Account with respect to such Letter of Credit.
(e) Application of Payments to Be Shared by Senior Creditors. The
distribution provisions of this SECTION 3 are for the purpose of determining the
relative amounts of Shared Proceeds to be distributed to the Senior Creditors in
respect of the Senior Indebtedness and not for the purpose of creating an
agreement among the parties as to the manner in which any proceeds or payments
distributed to them are actually to be applied to pay the Senior Indebtedness of
any Credit Party. Each Senior Creditor shall be free, each in its own
discretion, to apply any Payment to be Shared distributed to it hereunder to the
Senior Indebtedness of any Credit Party, held by it in such order and manner as
it may determine, subject to any applicable provisions of the agreements and
instruments evidencing or governing the Senior Indebtedness as to which the
payment is to be applied. The Credit Parties, by their consent hereto, agree
that in the event any payment is made with respect to any Senior Indebtedness,
as between the Credit Parties and each Senior Creditor, the Senior Indebtedness
discharged by such payment shall be
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the amount or amounts of the Senior Indebtedness to which such Senior Creditor
applies the portion of such Payment to be Shared distributed to it under this
SECTION 3 as provided in the preceding sentence. Notwithstanding the foregoing,
for all purposes of this Agreement, Senior Indebtedness shall be deemed paid to
the same extent and purpose that Payments to be Shared are distributed with
respect to it pursuant to Section 3(b), notwithstanding the actual application
thereof.
(f) Other Payments and Proceeds Not to Be Shared. No Senior Creditor shall,
by virtue of this Agreement, be required to share with any other Senior Creditor
any payments, prepayments or other amounts received from any Credit Party in
respect of the Senior Indebtedness owed to such Senior Creditor, except for the
sharing of Shared Proceeds in accordance with the provisions of this SECTION 3.
In addition, no Senior Creditor shall, by virtue of this Agreement, be required
to share with any other Senior Creditor any payments or other amounts received
from any Credit Party in respect of any indebtedness, liability or obligation of
such Credit Party that (i) does not constitute Senior Indebtedness, (ii) does
not arise under any agreement or instrument evidencing, governing or
guaranteeing any Senior Indebtedness, and (iii) is not included within the
definition of Shared Proceeds.
SECTION 4. ADDITIONAL GUARANTIES; LIENS AND SECURITY INTERESTS; OTHER
TRANSACTIONS.
(a) Agent and each Bank agrees that, without the consent in writing by the
Required Prudential Noteholders, the Required 2002 Noteholders and the Required
2003 Noteholders, it will not (i) take or receive a security interest in or lien
upon any of the property or assets (other than any (x) lien in connection with
outstanding Letters of Credit pursuant to Section 8.3 of the Credit Agreement or
any lien in the goods relating to any documentary Letter of Credit or (y) any
Banker's lien or right of setoff that exists pursuant to the Credit Agreement or
by operation of law) of any Credit Party as security for the payment of any
Senior Indebtedness or any Credit Agreement Guaranty, or (ii) except for the
obligations of any Borrower or any Credit Agreement Guarantor, retain or obtain
the primary or secondary obligations of any other obligor or obligors with
respect to all or any part of the Senior Indebtedness.
(b) Each Prudential Noteholder that is a Senior Creditor agrees that,
without the consent in writing by Agent, the Required Banks, the Required 2002
Noteholders and the Required 2003 Noteholders, it will not (i) take or receive a
security interest in or lien upon any of the property or assets of any Credit
Party as security for the payment of any Senior Indebtedness or Note Guaranty,
or (ii) except for the obligations of any Borrower or Note Guarantor, retain or
obtain the primary or secondary obligations of any other obligor or obligors
with respect to all or any part of the Senior Indebtedness.
(c) Each 2002 Noteholder that is a Senior Creditor agrees that, without the
consent in writing by Agent, the Required Banks, the Required Prudential
Noteholders and the Required 2003 Noteholders, it will not (i) take or receive a
security interest in or lien upon any of the property or assets of any Credit
Party as security for the payment of any Senior Indebtedness or Note Guaranty,
or (ii) except for the obligations of any Borrower or Note Guarantor, retain or
F-12
obtain the primary or secondary obligations of any other obligor or obligors
with respect to all or any part of the Senior Indebtedness.
(d) Each 2003 Noteholder that is a Senior Creditor agrees that, without the
consent in writing by Agent, the Required Banks, the Required Prudential
Noteholders and the Required 2002 Noteholders, it will not (i) take or receive a
security interest in or lien upon any of the property or assets of any Credit
Party as security for the payment of any Senior Indebtedness or Note Guaranty,
or (ii) except for the obligations of any Borrower or Note Guarantor, retain or
obtain the primary or secondary obligations of any other obligor or obligors
with respect to all or any part of the Senior Indebtedness.
(e) Nothing contained in this Agreement shall affect or impair the right
any Senior Creditor may have under the terms and conditions governing the Senior
Indebtedness to accelerate and demand repayment of such Senior Indebtedness.
Each Senior Creditor retains the right to freely exercise its rights and
remedies as a general creditor of the Credit Parties in accordance with
applicable law and agreements with the Credit Parties, including, without
limitation, the right to file a lawsuit and obtain a judgment therein against
the Credit Parties and to enforce such judgment against any assets of the Credit
Parties.
(f) Subject to the provisions set forth in this Agreement, each Senior
Creditor and its affiliates may (without having to account therefor to any
Senior Creditor) own, sell, acquire and hold equity and debt securities of the
Credit Parties, lease property and lend money to and generally engage in any
kind of business with the Credit Parties, and, subject to the provisions of this
Agreement, the Senior Creditors and their affiliates may accept dividends,
interest, principal payments, fees and other consideration from the Credit
Parties for services in connection with this Agreement or otherwise without
having to account for the same to the other Senior Creditors.
SECTION 5. ACCOUNTING; ADJUSTMENTS.
(a) Each Senior Creditor agrees to render an accounting to any of the other
Senior Creditors of the amounts of the outstanding Senior Indebtedness, receipts
of payments from the Credit Parties and of other items relevant to the
provisions of this Agreement upon the reasonable request from one of the other
Senior Creditors as soon as reasonably practicable after such request, giving
effect to the application of Payments to be Shared as hereinbefore provided in
this Agreement.
(b) Each Senior Creditor hereto agrees that to the extent any payment in
respect of any Senior Indebtedness made to it hereunder is in excess of the
amount due to be paid to it hereunder, then it shall pay to the other Senior
Creditors such amounts so that, after giving effect to such payments, the
amounts received by all Senior Creditors are equal to the amounts to be paid to
them hereunder. Each Senior Creditor further agrees that, in the event any
payment referred to in SECTION 3 hereof made to any Senior Creditor is
subsequently invalidated, declared fraudulent or preferential, set aside or
required to be paid to a trustee, receiver, or any other Person under any
bankruptcy, reorganization, insolvency, or liquidation statute, state or federal
law, common law or equitable cause ("Avoided Payments"), the other Senior
Creditors shall pay
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to such Senior Creditor such amounts so that after giving effect to such
payments by all such other Senior Creditors, the amounts received by all Senior
Creditors are not in excess of the amounts to be paid to them hereunder as
though such Avoided Payments had not been made.
SECTION 6. NOTICES.
Except as otherwise expressly provided herein, any notice required or
desired to be served, given or delivered hereunder shall be in writing, and
shall be deemed to have been validly served, given or delivered three Business
Days after deposit in the United States mails, with proper postage prepaid, one
Business Day after delivery to a courier for next day delivery, upon delivery by
courier or upon transmission by telecopy or similar electronic medium (provided
that a copy of any such notice sent by such transmission is also sent by one of
the other means provided hereunder within one day after the date sent by such
transmission) to the addresses set forth below the signatures hereto, with a
copy to any Person or Persons set forth below such signature shown as to receive
a copy, or to such other address as any Senior Creditor designates to the others
in the manner herein prescribed; provided that no notice given hereunder shall
be effective until received. Any Senior Creditor giving notice to any other
Senior Creditor hereunder shall also give copies of such notice to all other
Senior Creditors.
SECTION 7. CONTESTING SENIOR INDEBTEDNESS.
No Senior Creditor shall contest the validity or enforceability of or seek
to avoid, have declared fraudulent or have set aside any Senior Indebtedness or
the obligations of any Guarantor under any Guaranty. In the event that any
Senior Indebtedness shall be invalidated, avoided, declared fraudulent or set
aside for the benefit of any Credit Party, the Senior Creditors agree that such
Senior Indebtedness shall nevertheless be considered to be outstanding for all
purposes of this Agreement.
SECTION 8. NO ADDITIONAL RIGHTS FOR CREDIT PARTIES HEREUNDER.
Each Credit Party, by its consent hereto, acknowledges that it shall have
no rights under this Agreement. If any Senior Creditor shall violate the terms
of this Agreement, each Credit Party agrees, by its consent hereto, that it
shall not use such violation as a defense to any enforcement by any Senior
Creditor nor assert such violation as a counterclaim or basis for setoff or
recoupment against any Senior Creditor.
SECTION 9. BANKRUPTCY PROCEEDINGS.
Nothing contained herein shall limit or restrict the independent right of
any Senior Creditor to initiate an action or actions in any bankruptcy,
reorganization, compromise, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar proceeding in its representative or
individual capacity and to appear or be heard on any matter before the
bankruptcy or other applicable court in any such proceeding, including, without
limitation, with respect to any question concerning post-petition financing
arrangements. This Agreement shall
F-14
survive the commencement of any such bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar proceeding.
SECTION 10. INDEPENDENT CREDIT INVESTIGATION.
No Senior Creditor, nor any of their respective directors, trustees,
officers, agents or employees, shall be responsible to any other Senior Creditor
for the solvency or financial condition of any Credit Party or the ability of
any Credit Party to repay any of the Senior Indebtedness or perform any Credit
Party's obligations under any Credit Agreement Guaranty or Note Guaranty, or the
statements of any Credit Party, oral or written, or for the validity,
sufficiency or enforceability of any of the Senior Indebtedness, the Credit
Agreement, any Note Agreement, any Credit Agreement Guaranty or any Note
Guaranty, or any document or agreement executed or delivered in connection with
or pursuant to any of the foregoing. Each Senior Creditor has entered into its
respective financial agreements with the Credit Parties based upon its own
independent investigation, and makes no warranty or representation to the other,
nor does it rely upon any representation by any other Senior Creditor with
respect to the matters identified or referred to in this Section.
SECTION 11. SUPERVISION OF OBLIGATIONS.
Except to the extent otherwise expressly provided herein, each Senior
Creditor shall be entitled to manage and supervise the obligations of the Credit
Parties to it in accordance with applicable law and such Senior Creditor's
practices in effect from time to time without regard to the existence of any
other Senior Creditor.
SECTION 12. AMENDMENT.
This Agreement and the provisions hereof may be amended, modified or waived
only by a writing signed by the Required Prudential Noteholders, the Required
2002 Noteholders, the Required 2003 Noteholders and Agent, acting at the
direction of the Required Banks.
SECTION 13. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of each Senior Creditor, including subsequent
holders of the Senior Indebtedness and Persons subsequently becoming parties to
the Credit Agreement or any Note Agreement as a "Bank" or "Noteholder"
thereunder, provided that neither Agent nor any Senior Creditor shall assign or
transfer any interest in any Senior Indebtedness or permit any such Person to
become such a party to the Credit Agreement or any Note Agreement as a successor
to all or any portion of its interests thereunder or as an additional "Bank" or
"Noteholder" thereunder, unless (a) the assignor (or Agent on behalf of the
assignor) provides each other Senior Creditor with prior written notice of such
transfer or assignment (provided that the failure to give such notice shall not
affect the validity of such assignment or create a cause of action against or
cause a forfeiture of any rights of the party failing to give such notice or
create any claim or right on behalf of any third party), and (b) such transfer
or assignment or such Person so
F-15
becoming a "Bank" or "Noteholder" is made subject to this Agreement by such
transferee, assignee or Person executing an instrument in the form of EXHIBIT A
hereto agreeing to be bound by the obligations of a Bank or a Noteholder, as the
case may be, under this Agreement. Upon an assignment, and after notice has been
given pursuant to the preceding sentence, by any Senior Creditor of all or any
portion of any Credit Agreement Note or Senior Note, as the case may be, and the
assumption by the transferee of such Senior Creditor's obligations hereunder in
respect of such Credit Agreement Note or Senior Note, or portion thereof, so
assigned, such Senior Creditor shall be automatically released from all
obligations thereafter accruing hereunder in respect of such Credit Agreement
Note or Senior Note, or portion thereof, so assigned; provided, however, that
such Senior Creditor shall not be released as to any obligation of such Senior
Creditor that arises pursuant to SECTION 5(B) hereof that pertains to a payment
received prior to such assignment.
SECTION 14. TERMINATION.
(a) In the event (i) the Credit Agreement is terminated and all Credit
Agreement Notes and other obligations of Borrowers under the Credit Agreement
and the Credit Agreement Notes are paid in full or otherwise discharged, and
(ii) the Senior Creditors have no outstanding obligations hereunder with respect
to Payments to be Shared previously received and distributed hereunder, this
Agreement shall terminate as to the Senior Creditors under the Bank Agreement
366 days after the last to occur of any event referred to in the preceding
clauses (I) and (II) unless prior to such 366th day an Insolvency Event shall
have occurred.
(b) In the event (i) the Prudential Note Agreements are terminated and all
Senior Prudential Notes and other obligations of Borrowers under the Prudential
Note Agreements and the Senior Prudential Notes are paid in full or otherwise
discharged, and (ii) the Senior Creditors have no outstanding obligations
hereunder with respect to Payments to be Shared previously received and
distributed hereunder, this Agreement shall terminate as to the Prudential
Noteholders 366 days after the last to occur of any event referred to in the
preceding clauses (I) and (II) unless prior to such 366th day an Insolvency
Event shall have occurred.
(c) In the event (i) the 2002 Note Agreements are terminated and all Senior
2002 Notes and other obligations of Borrowers under the 2002 Note Agreements and
the Senior 2002 Notes are paid in full or otherwise discharged, and (ii) the
Senior Creditors have no outstanding obligations hereunder with respect to
Payments to be Shared previously received and distributed hereunder, this
Agreement shall terminate as to the 2002 Noteholders 366 days after the last to
occur of any event referred to in the preceding clauses (I) and (II) unless
prior to such 366th day an Insolvency Event shall have occurred.
(d) In the event (i) the 2003 Note Agreements are terminated and all Senior
2003 Notes and other obligations of Borrowers under the 2003 Note Agreements and
the Senior 2003 Notes are paid in full or otherwise discharged, and (ii) the
Senior Creditors have no outstanding obligations hereunder with respect to
Payments to be Shared previously received and distributed hereunder, this
Agreement shall terminate as to the 2003 Noteholders 366 days after the last to
occur of any event referred to in the preceding clauses (I) and (II) unless
prior to such 366th day an Insolvency Event shall have occurred.
F-16
SECTION 15. NEW INTERCREDITOR AGREEMENT.
If this Agreement shall be terminated as provided herein and Cedar Fair LP
or any other Borrower has incurred any indebtedness in favor of any bank,
financial institution or institutional investor (each a "New Creditor") in
connection with the refinancing of any of the Senior Indebtedness, Cedar Fair LP
will, at its own expense, upon the request of any Senior Creditor, enter into,
and cause each other Credit Party and New Creditor to enter into, a new
intercreditor agreement, substantially in the form hereof and as otherwise in
all respects satisfactory in form and substance to the Senior Creditors.
SECTION 16. AMENDMENT, SUPPLEMENT OR WAIVER OF AGREEMENTS WITH CREDIT PARTIES,
ETC.
Nothing contained in this Agreement shall limit or restrict the rights:
(i) of Agent and the Banks and the Credit Parties to amend,
supplement, restate or waive any provision of the Credit Agreement, the
Credit Agreement Notes or the Credit Agreement Guaranties or other
agreement or instrument related thereto or executed and delivered in
connection therewith; or
(ii) of the Noteholders and the Credit Parties to amend, supplement,
restate or waive any provision of the Note Agreements, the Senior Notes or
the Note Guaranties or other agreement or instrument related thereto or
executed and delivered in connection therewith.
SECTION 17. COOPERATION.
Each Senior Creditor hereby agrees to fully cooperate with the other Senior
Creditors in order to promptly discharge the terms and provisions of this
Agreement. Each Senior Creditor also hereby agrees, from time to time, to
execute and deliver any and all other agreements, documents or instruments and
to take such actions, all as may be reasonably necessary or desirable to
effectuate the terms, provisions and intent of this Agreement.
SECTION 18. REPRESENTATIONS AND WARRANTIES.
Each Noteholder represents and warrants to Agent and the Banks, and Agent
and each Bank represents and warrants to the Noteholders, that it is a
corporation, insurance company, national banking association, bank or trust
company duly organized, validly existing and in good standing under the laws of
its respective jurisdiction of incorporation or organization, that it has all
necessary corporate power and authority to execute and deliver this Agreement
and to perform its respective obligations hereunder, that this Agreement has
been duly authorized, executed and delivered by it or on its behalf, and that
this Agreement is enforceable against it in accordance with its terms, except as
such enforceability may be limited by applicable bankruptcy, reorganization,
arrangement, insolvency, fraudulent conveyance, moratorium or similar laws
affecting the enforcement of the rights of creditors generally as at the time in
effect,
F-17
by common law or statutory requirements with respect to commercial
reasonableness, and by general principles of equity.
SECTION 19. NO THIRD PARTY BENEFICIARIES.
This Agreement is intended solely to govern the relationship among the
Senior Creditors, and is intended for the sole benefit of the Senior Creditors
and their respective transferees, successors and assigns. This Agreement shall
not benefit or create any right or cause of action in, or on behalf of, any
Credit Party or any other Person, other than the Senior Creditors and their
respective transferees, successors and assigns. Notwithstanding the foregoing,
any Borrower which is a party to a Prudential Note Agreement or the 2002 Note
Agreements may rely on the agreements set forth in Section 23 for the sole and
limited purpose of determining compliance with such Prudential Note Agreement
relating to the execution and delivery of the Credit Agreement, 2002 Note
Agreements and the 2003 Note Agreements and the Credit Agreement Guaranty, 2002
Note Guaranty and the 2003 Note Guaranty.
SECTION 20. LIMITATION RELATIVE TO OTHER AGREEMENTS.
Nothing contained in this Agreement is intended to impair (a) as between
the Noteholders, on the one hand, and the Credit Parties, on the other hand, the
rights of the Noteholders and the obligations of the Credit Parties under the
Note Agreements, the Senior Notes, or any other agreement or instrument related
thereto, or (b) as between Agent and the Banks, on the one hand, and the Credit
Parties, on the other hand, the rights of Agent and the Banks and the
obligations of the Credit Parties under the Credit Agreement, the Credit
Agreement Notes, or any other agreement or instrument relating thereto.
SECTION 21. COUNTERPARTS.
This Agreement may be executed in several counterparts and by each party on
a separate counterpart and by facsimile signature, each of which, when so
executed and delivered, shall be an original, but all of which together shall
constitute but one and the same instrument. In proving this Agreement, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
SECTION 22. GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED AS TO VALIDITY, INTERPRETATION,
ENFORCEMENT EVENT AND EFFECT BY THE INTERNAL LAWS (AS OPPOSED TO CONFLICT OF
LAWS PROVISIONS) OF THE STATE OF ILLINOIS.
SECTION 23. CONSENT TO INTERCREDITOR AGREEMENT.
The Prudential Noteholders hereby agree that, for purposes of the
Prudential Note Agreements, the term "Intercreditor Agreement" shall mean this
Agreement.
F-18
SECTION 24. JURY TRIAL WAIVER.
EACH PARTY HERETO WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING
ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN SUCH PARTY
AND ANY OTHER PARTY HERETO, OR ANY CREDIT PARTY, ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
F-19
Address: Two Prudential Plaza THE PRUDENTIAL INSURANCE COMPANY ▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-20
Address: c/o Prudential Capital Group HARTFORD LIFE INSURANCE COMPANY
Two Prudential Plaza
Suite 5600 By: Prudential Private Placement
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Investors, L.P., as
Attention: Managing Director Investment Advisor
By: Prudential Private Placement
Investors, Inc., as it
General Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-21
Address: c/o Prudential Capital Group MEDICA HEALTH PLAN
Two Prudential Plaza
Suite 5600 By: Prudential Private Placement
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Investors, L.P., as
Attention: Managing Director Investment Advisor
By: Prudential Private Placement
Investors, Inc., as its
General Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-22
Address: Key Center KEYBANK NATIONAL ASSOCIATION,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ for itself as Agent and on behalf of
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and for the benefit of the Banks
Attention: Large Corporate
Banking
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-23
Address: c/o New York Life Insurance NEW YORK LIFE INSURANCE COMPANY
Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ By
Attention: Securities -------------------------------------
Investment Group, Private Name:
Finance, 2nd Floor ----------------------------------
Title:
---------------------------------
F-24
Address: ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ LIFE INSURANCE AND
Management LLC ANNUITY CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ By: New York Life Investment Management
Attention: Securities LLC, Its Investment Adviser
Investment Group, Private
Finance, 2nd Floor
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-25
Address: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ THE TRAVELERS INSURANCE COMPANY
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Private Placement By
Group -------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-26
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇. TEACHERS INSURANCE AND ANNUITY
Charlotte, North Carolina ASSOCIATION OF AMERICA
28262
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-27
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY
By: PPM America, Inc.
as attorney-in-fact, on behalf of
▇▇▇▇▇▇▇ National Life Insurance
Company
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-28
Address: c/o CIGNA Retirement & CONNECTICUT GENERAL LIFE INSURANCE
Investment Services COMPANY
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Private and By
Alternative -------------------------------------
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Name:
----------------------------------
Title: Vice President
F-29
Address: c/o Prudential Private FIRST COLONY LIFE INSURANCE COMPANY
Placement Investors, L.P.
4 Gateway Center By: Prudential Private Placement
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Investors, L.P. (as Investment
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Advisor)
By: Prudential Private Placement
Investors, Inc. (as its General
Partner)
By
-------------------------------------
Name:
----------------------------------
Title: Vice President
F-30
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LIFE INSURANCE COMPANY
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇ By: Advantus Capital Management, Inc.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-31
Address: ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ LIFE INSURANCE AND ANNUITY
Management LLC CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ By: New York Life Investment Management
10010-1603 LLC, Its Investment Adviser
Attention: Securities
Investment Group, Private
Finance, 2nd Floor By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-32
Address: ▇/▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ LIFE INSURANCE COMPANY
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Securities By
Investment -------------------------------------
Group, Private Finance, Name:
2nd Floor ----------------------------------
Title:
---------------------------------
F-33
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ THE NORTHWESTERN MUTUAL LIFE INSURANCE
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ COMPANY
Attention: Securities
Department
By
-------------------------------------
Name:
----------------------------------
Title: Its Authorized Representative
F-34
Address: Two Prudential Plaza PRUCO LIFE INSURANCE COMPANY
Suite 5600
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By
Attention: Managing Director -------------------------------------
Name:
----------------------------------
Title: Vice President
F-35
Address: Two Prudential Plaza PRUCO LIFE INSURANCE COMPANY OF
Suite 5600 NEW JERSEY
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director By
-------------------------------------
Name:
----------------------------------
Title: Vice President
F-36
Address: Two Prudential Plaza THE PRUDENTIAL INSURANCE COMPANY
Suite 5600 OF AMERICA
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director By
-------------------------------------
Name:
----------------------------------
Title: Vice President
F-37
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ TEACHERS INSURANCE AND ANNUITY
New York, New York ASSOCIATION OF AMERICA
10017-3206
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-38
ACKNOWLEDGMENT, CONSENT AND AGREEMENT
The undersigned, the Credit Parties described in the Intercreditor
Agreement set forth above, acknowledge and, to the extent required, consent to
the terms and conditions thereof. The undersigned Credit Parties do hereby
further acknowledge and agree to their joint and several agreements under
SECTIONS 3(E), 8 and, with respect to Cedar Fair LP, SECTION 15 of the
Intercreditor Agreement and acknowledge and agree that no Credit Party is a
third-party beneficiary of, or has any rights under, the Intercreditor
Agreement.
This Acknowledgment, Consent and Agreement to the Intercreditor Agreement
and any amendment hereof may be executed in several counterparts and by each
party on a separate counterpart and by facsimile signature, each of which, when
so executed and delivered, shall be an original, but all of which together shall
constitute but one of the same instrument. In proving this Acknowledgment,
Consent and Agreement to the Intercreditor Agreement it shall not be necessary
to produce or account for more than one such counterpart signed by the party
against whom enforcement is sought.
JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED HEREBY WAIVES ANY RIGHT TO HAVE
A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE, BETWEEN THE UNDERSIGNED, OR ANY OF THEM, AND ANY SENIOR CREDITOR,
ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS ACKNOWLEDGMENT,
CONSENT AND AGREEMENT TO THE INTERCREDITOR AGREEMENT OR ANY NOTE OR OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
OR THE TRANSACTIONS RELATED THERETO.
IN WITNESS WHEREOF, the parties below have caused this Acknowledgment,
Consent and Agreement to the Intercreditor Agreement to be executed by their
respective duly authorized officer as of the date of the Intercreditor
Agreement.
CEDAR FAIR, L.P.
By: Cedar Fair Management Inc.,
its Managing General Partner
CEDAR FAIR
By: Magnum Management Corporation,
its Managing General Partner
1
MAGNUM MANAGEMENT CORPORATION
▇▇▇▇▇'▇ ▇▇▇▇▇ FARM
By: Cedar Fair, L.P.,
its Managing General Partner
By: Cedar Fair Management Inc.,
its Managing General Partner
By
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
As Corporate Vice President, Finance
& Chief Financial Officer of Cedar
Fair Management Inc.
As Vice President, Finance & Chief
Financial Officer of Magnum
Management Corporation
MICHIGAN'S ADVENTURE, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
FORM OF JOINDER TO
INTERCREDITOR AGREEMENT FOR TRANSFEREES
UNDER A [NOTE/CREDIT] AGREEMENT
Reference is hereby made to the Intercreditor Agreement dated as of March
14, 2006 (the "Agreement"), among the Senior Creditors (as defined therein) of
CEDAR FAIR, L.P., a Delaware limited partnership ("Cedar L.P."), CEDAR FAIR, an
Ohio general partnership ("Cedar"), MAGNUM MANAGEMENT CORPORATION, an Ohio
corporation ("Magnum"), and ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a California general partnership
("Knott's"; Knott's together with Cedar L.P., Cedar and Magnum are each
hereinafter individually referred to as an "Obligor" and collectively as the
"Obligors"). Capitalized terms used herein and not otherwise defined shall have
the meanings given to such terms in the Agreement.
The undersigned has entered into the [Note/Credit Agreement] dated as of
_______________ with the [Obligors] and desires to become a Senior Creditor. The
undersigned acknowledges the terms of the Agreement and agrees to be bound
thereby.
,
---------------------------------------
as a Senior Creditor
By
-------------------------------------
Title
----------------------------------
Date
-----------------------------------
Notice Address:
----------------------------------------
----------------------------------------
----------------------------------------
1
EXHIBIT G
FORM OF ASSUMPTION AGREEMENT
This ASSUMPTION AGREEMENT ("Agreement") is made effective as of
____________, 20__, by and among ________________, a _________ (the "Obligor"),
CEDAR FAIR, L.P., a Delaware limited partnership, CEDAR FAIR, an Ohio general
partnership, MAGNUM MANAGEMENT CORPORATION, an Ohio corporation, and ▇▇▇▇▇'▇
▇▇▇▇▇ FARM, a California general partnership (collectively, "Borrowers", and,
individually, each a "Borrower"), and KEYBANK NATIONAL ASSOCIATION, as agent
("Agent") on behalf of and for the benefit of each of the banking institutions
named in Schedule 1 to the Credit Agreement, as hereinafter defined
(collectively, "Banks" and individually, each a "Bank"):
WHEREAS, Borrowers, Agent, and the Banks are parties to the Credit
Agreement, dated as of March 14, 2006 (as the same may from time to time be
amended, restated or otherwise modified, the "Credit Agreement", each
capitalized term not defined herein being used herein as therein defined)
wherein Agent and the Banks have agreed to make Loans to and issue Letters of
Credit for the benefit of Borrowers, all upon certain terms and conditions;
WHEREAS, pursuant to Section 2.5 of the Credit Agreement, Borrowers have
requested that, effective on _____________, 20___ (the "Assumption Effective
Date"), the Obligor shall be designated as a "Borrower" under the Credit
Agreement;
WHEREAS, Agent and the Banks are willing to permit the Obligor to become a
"Borrower" under the Credit Agreement and the Banks are willing to make Loans to
and issue Letters of Credit for the benefit of the Obligor pursuant to the
Commitment, upon certain terms and conditions as set forth in the Credit
Agreement, one of which is that the Obligor shall assume all of the Obligations,
as hereinafter defined, and this Agreement is being executed and delivered in
consideration of each financial accommodation, if any, granted to the Obligor by
Agent and the Banks and for other valuable considerations;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Obligor hereby agrees as follows:
1. Assumption. On and after the Assumption Effective Date, the Obligor
irrevocably and unconditionally assumes and shall be liable for all of the
obligations of a Borrower under the Credit Agreement, the Notes and the Related
Writings (the "Obligations") as fully as if such Obligor had been an original
party to the Credit Agreement, including, but not limited to (a) all Loans and
all Letters of Credit made to or for the benefit of Borrowers, (b) all other
Indebtedness and other obligations incurred by Borrowers to Agent or any Bank
pursuant to the Credit Agreement, including, but not limited to, the principal
of and interest on all Notes and each extension, renewal or refinancing thereof
in whole or in part, the facility fees, other fees and any prepayment fees
payable thereunder.
2. Obligor Party to the Credit Agreement. On and after the Assumption
Effective Date, the Obligor shall (a) be designated a "Borrower" pursuant to the
terms and conditions of
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the Credit Agreement, and (b) become bound by all representations, warranties,
covenants, provisions and conditions of the Credit Agreement and each other Loan
Document applicable to Borrowers as if the Obligor had been the original party
making such representations, warranties and covenants. Obligor acknowledges and
agrees that Agent and the Banks are entering into this Agreement at the request
of Obligor and with the understanding that Obligor is and shall remain fully
liable, jointly and severally, for payment in full of the Obligations. Obligor
agrees that it has received, it is receiving or will receive a direct pecuniary
benefit for each Loan made or Letter of Credit issued under the Credit
Agreement.
3. Representations and Warranties of the Obligor. The Obligor represents
and warrants to Agent and each of the Banks that:
(a) the Obligor is an entity duly organized or formed, validly
existing and in good standing or in full force and effect under the laws of
its jurisdiction of organization or formation, as the case may be, and is
duly qualified or authorized to do business in each jurisdiction in which
the Obligor is doing business;
(b) the Obligor has full power, authority and legal right to execute
and deliver this Agreement, and to perform and observe the provisions
hereof and of the Credit Agreement and the Notes, and the officers acting
on behalf of the Obligor have been duly authorized to execute and deliver
this Agreement;
(c) this Agreement, the Credit Agreement and the Notes are each valid
and binding upon the Obligor and enforceable against the Obligor in
accordance with their respective terms; and
(d) each of the representations and warranties set forth in Article VI
of the Credit Agreement are true and complete with respect to the Obligor
as a Borrower under the Credit Agreement.
4. Representations and Warranties of Borrowers and the Obligor. Borrowers
and the Obligor represent and warrant to Agent and each of the Banks that:
(a) no Default or Event of Default exists under the Credit Agreement,
nor will any occur immediately after the execution and delivery of this
Agreement or by the performance or observance of any provision hereof;
(b) neither any Borrower nor the Obligor has any claim or offset
against, or defense or counterclaim to, any Company's obligations or
liabilities under the Credit Agreement or any Related Writing; and
(c) neither the execution and delivery of this Agreement, nor the
performance and observance of the provisions hereof, by the Obligor will
conflict with, or constitute a violation or default under, any provision of
any applicable law or of any contract (including, without limitation, the
Obligor's Organizational Documents) or of any other writing binding upon
the Obligor in any manner.
G-2
5. Obligations of Borrowers and Each Guarantor Not Affected. Anything
herein to the contrary notwithstanding, Borrowers and each Guarantor of Payment
shall remain bound by the terms and conditions of all of the Loan Documents to
which such Borrower or Guarantor of Payment is a party regardless of the
assumption of the Obligations by the Obligor hereunder or the enforceability
thereof or of the Notes.
6. Waiver of Claims. Each Borrower, each Guarantor of Payment and the
Obligor hereby waive and release Agent and each of the Banks and their
respective directors, officers, employees, attorneys, affiliates and
subsidiaries from any and all claims, offsets, defenses and counterclaims of
which such Borrower, such Guarantor of Payment or the Obligor is aware, such
waiver and release being with full knowledge and understanding of the
circumstances and effect thereof and after having consulted legal counsel with
respect thereto.
7. Conditions Precedent. Concurrently with the execution of this Agreement,
Borrowers and the Obligor, as appropriate, shall:
(a) satisfy each of the conditions set forth in Section 2.5(a) of the
Credit Agreement;
(b) execute and deliver to Agent and each Bank such replacement Notes
as Agent shall deem appropriate;
(c) pay all reasonable legal fees and expenses of Agent incurred in
connection with this Agreement;
(d) cause each Guarantor of Payment to consent and agree to and
acknowledge the terms of this Agreement; and
(e) provide such other items as may be reasonably required by Agent or
the Banks in connection with this Agreement.
8. Binding Nature of Agreement. All provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby. This Agreement
is a Related Writing as defined in the Credit Agreement. This Agreement shall
bind and benefit Borrowers, the Obligor and Agent and the Banks and their
respective successors and assigns.
9. Counterparts. This Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
10. Ohio Law to Govern. The rights and obligations of all parties hereto
shall be governed by the laws of the State of Ohio, without regard to principles
of conflicts of laws.
[Remainder of page intentionally left blank.]
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11. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED BY
LAW, WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, ANY OF THE BANKS,
ANY OBLIGOR AND/OR ANY BORROWER ARISING OUT OF, IN CONNECTION WITH, RELATED TO,
OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN EACH OF THEM IN CONNECTION
WITH THIS INSTRUMENT OR ANY NOTE OR OTHER AGREEMENT, INSTRUMENT OR DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED
HERETO.
OBLIGOR:
[ ]
----------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BORROWERS:
[INSERT BORROWERS' SIGNATURE AND
ACKNOWLEDGEMENT OF GUARANTORS]
AGENT:
KEYBANK NATIONAL ASSOCIATION,
as Agent on behalf of and for the
benefit of the Banks
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
G-4
EXHIBIT H
FORM OF
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment and Acceptance Agreement (this "Assignment Agreement")
between ______________________ (the "Assignor") and ______________________ (the
"Assignee") is dated as of ________, 20_. The parties hereto agree as follows:
1. Preliminary Statement. Assignor is a party to a Credit Agreement, dated
as of March 14, 2006 (which, as it may from time to time be amended, restated or
otherwise modified is herein called the "Credit Agreement"), among CEDAR FAIR,
L.P., a Delaware limited partnership, CEDAR FAIR, an Ohio general partnership,
MAGNUM MANAGEMENT CORPORATION, an Ohio corporation, and ▇▇▇▇▇'▇ ▇▇▇▇▇ FARM, a
California general partnership (collectively, "Borrowers", and, individually,
each a "Borrower"), the banking institutions named on Schedule 1 thereto
(collectively, "Banks" and, individually, each a "Bank"), and KEYBANK NATIONAL
ASSOCIATION, as agent for the Banks ("Agent"). Capitalized terms used herein and
not otherwise defined herein shall have the meanings attributed to them in the
Credit Agreement.
2. Assignment and Assumption. Assignor hereby sells and assigns to
Assignee, and Assignee hereby purchases and assumes from Assignor, an interest
in and to Assignor's rights and obligations under the Credit Agreement,
effective as of the Assignment Effective Date (as hereinafter defined), equal to
the percentage interest specified on Annex 1 hereto (hereinafter, "Assignee's
Percentage") of Assignor's right, title and interest in and to (a) the
Commitment of Assignor as set forth on Annex 1 (hereinafter, "Assigned Amount"),
(b) any Loan made by Assignor which is outstanding on the Assignment Effective
Date, (c) any Note delivered to Assignor pursuant to the Credit Agreement, and
(d) the Credit Agreement and the other Related Writings. After giving effect to
such sale and assignment and on and after the Assignment Effective Date,
Assignee shall be deemed to have a "Commitment Percentage" under the Credit
Agreement equal to the Commitment Percentage set forth in subparts I.C on Annex
1 hereto.
3. Assignment Effective Date. The Assignment Effective Date (the
"Assignment Effective Date") shall be two Business Days (or such other time
agreed to by Agent) after the following conditions precedent have been
satisfied:
(a) receipt by Agent of this Assignment Agreement, including Annex 1
hereto, properly executed by Assignor and Assignee and accepted and consented to
by Agent and, if necessary pursuant to the provisions of Section 10.10(A)(i) of
the Credit Agreement, by Borrowers;
(b) receipt by Agent from Assignor of a fee of Three Thousand Dollars
($3,000), in accordance with Section 10.10A of the Credit Agreement;
(c) receipt by Agent from Assignee of an administrative questionnaire, or
other similar document, which shall include (i) the address for notices under
the Credit Agreement,
H-1
(ii) the address of its lending office, (iii) wire transfer instructions for
delivery of funds by Agent, (iv) and such other information as Agent shall
request;
(d) receipt by Agent from Assignee of the joinder agreement to the
Intercreditor Agreement required pursuant to Section 10.10A(iv) of the Credit
Agreement and evidence that assignee has provided the notice required pursuant
to such Section 10.10A(iv); and
(e) receipt by Agent from Assignor or Assignee of any other information
required pursuant to Section 10.10 of the Credit Agreement or otherwise
necessary to complete the transaction contemplated hereby.
4. Payment Obligations. In consideration for the sale and assignment of
Loans hereunder, Assignee shall pay Assignor, on the Assignment Effective Date,
an amount in Dollars equal to Assignee's Percentage. Any interest, fees and
other payments accrued prior to the Assignment Effective Date with respect to
the Assigned Amount shall be for the account of Assignor. Any interest, fees and
other payments accrued on and after the Assignment Effective Date with respect
to the Assigned Amount shall be for the account of Assignee. Each of Assignor
and Assignee agrees that it will hold in trust for the other part any interest,
fees or other amounts which it may receive to which the other party is entitled
pursuant to the preceding sentence and to pay the other party any such amounts
which it may receive promptly upon receipt thereof.
5. Credit Determination; Limitations on Assignor's Liability. Assignee
represents and warrants to Assignor, Borrowers, Agent and the other Banks (a)
that it is capable of making and has made and shall continue to make its own
credit determinations and analysis based upon such information as Assignee
deemed sufficient to enter into the transaction contemplated hereby and not
based on any statements or representations by Assignor, (b) Assignee confirms
that it meets the requirements to be an assignee as set forth in Section 10.10
of the Credit Agreement; (c) Assignee confirms that it is able to fund the Loans
as required by the Credit Agreement; (d) Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement and the Related Writings are required to be performed by it as
a Bank thereunder; and (e) Assignee represents that it has reviewed each of the
Loan Documents, including, but not limited to the Intercreditor Agreement and
agrees to be bound by the terms and conditions thereof. It is understood and
agreed that the assignment and assumption hereunder are made without recourse to
Assignor and that Assignor makes no representation or warranty of any kind to
Assignee and shall not be responsible for (i) the due execution, legality,
validity, enforceability, genuineness, sufficiency or collectability of the
Credit Agreement or any Related Writings, (ii) any representation, warranty or
statement made in or in connection with the Credit Agreement or any of the
Related Writings, (iii) the financial condition or creditworthiness of Borrowers
or any Guarantor of Payment, (iv) the performance of or compliance with any of
the terms or provisions of the Credit Agreement or any of the Related Writings,
(v) inspecting any of the property, books or records of Borrowers, or (vi) the
validity, enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans. Neither Assignor
nor any of its officers, directors, employees, agents or attorneys shall be
liable for any mistake, error of judgment, or action taken or omitted to be
taken in connection with the Loans, the Credit Agreement or the Related
Writings, except for its or their own bad faith or willful misconduct. Assignee
appoints Agent to take such action
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as agent on its behalf and to exercise such powers under the Credit Agreement as
are delegated to Agent by the terms thereof.
6. Indemnity. Assignee agrees to indemnify and hold Assignor harmless
against any and all losses, cost and expenses (including, without limitation,
attorneys' fees) and liabilities incurred by Assignor in connection with or
arising in any manner from Assignee's performance or non-performance of
obligations assumed under this Assignment Agreement.
7. Subsequent Assignments. After the Assignment Effective Date, Assignee
shall have the right pursuant to Section 10.10 of the Credit Agreement to assign
the rights which are assigned to Assignee hereunder, provided that (a) any such
subsequent assignment does not violate any of the terms and conditions of the
Credit Agreement, any of the Related Writings, or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Credit Agreement or any of the Related Writings has been
obtained, (b) the assignee under such assignment from Assignee shall agree to
assume all of Assignee's obligations hereunder in a manner satisfactory to
Assignor and (c) Assignee is not thereby released from any of its obligations to
Assignor hereunder.
8. Reductions of Aggregate Amount of Commitments. If any reduction in the
Total Commitment Amount occurs between the date of this Assignment Agreement and
the Assignment Effective Date, the percentage of the Total Commitment Amount
assigned to Assignee shall remain the percentage specified in Annex 1 hereto and
the dollar amount of the Commitment of Assignee shall be recalculated based on
the reduced Total Commitment Amount.
9. Acceptance of Agent; Notice by Assignor. This Assignment Agreement is
conditioned upon the acceptance and consent of Agent and, if necessary pursuant
to Section 10.10A of the Credit Agreement, upon the acceptance and consent of
Borrowers; provided, that the execution of this Assignment Agreement by Agent
and, if necessary, by Borrowers is evidence of such acceptance and consent.
10. Entire Agreement. This Assignment Agreement embodies the entire
agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings between the parties hereto relating to the subject
matter hereof.
11. Governing Law. This Assignment Agreement shall be governed by the
internal law, and not the law of conflicts, of the State of Ohio.
12. Notices. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth under each party's name on the signature pages hereof.
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
ASSIGNOR:
Address:
---------------------------- ----------------------------------------
----------------------------
Attn: By:
---------------------- ------------------------------------
Phone: Name:
--------------------- ----------------------------------
Fax: Title:
----------------------- ---------------------------------
ASSIGNEE:
Address:
---------------------------- ----------------------------------------
----------------------------
Attn: By:
---------------------- ------------------------------------
Phone: Name:
--------------------- ----------------------------------
Fax: Title:
----------------------- ---------------------------------
Accepted and Consented to this ___ day of ___, 20_:
KEYBANK NATIONAL ASSOCIATION,
as Agent
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Accepted and Consented to this ___ day of _______, 20__:
[INSERT SIGNATURE OF BORROWERS IF REQUIRED]
H-4
ANNEX 1
TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
On and after ___________, 20__ (the "Assignment Effective Date"), the
Commitment of Assignee, and, if this is less than an assignment of all of
Assignor's interest, Assignor, shall be as follows:
I. ASSIGNEE'S COMMITMENT
A. Assignee's Percentage __________%
B. Assigned Amount $__________
C. Assignee's Commitment Percentage
under the Credit Agreement __________%
II. ASSIGNOR'S COMMITMENT
A. Assignor's Commitment Percentage
under the Credit Agreement __________%
B. Assignor's Commitment Amount
under the Credit Agreement $__________
1