EXHIBIT 10.1
================================================================================
$2,090,000,000
CREDIT AGREEMENT
among
CEDAR FAIR, L.P.,
as U.S. Borrower,
3147010 NOVA SCOTIA COMPANY
as Canadian Borrower,
The Several Lenders
from Time to Time Parties Hereto,
BEAR XXXXXXX CORPORATE LENDING INC.,
as Syndication Agent,
WACHOVIA BANK, NATIONAL ASSOCIATION and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Co-Documentation Agents,
GE CANADA FINANCE HOLDING COMPANY,
as Canadian Administrative Agent,
NATIONAL CITY (CANADIAN BRANCH OF NATIONAL CITY BANK),
as Canadian Syndication Agent
FIFTH THIRD BANK,
as Canadian Documentation Agent
and
KEYBANK NATIONAL ASSOCIATION,
as Administrative Agent and Collateral Agent
dated as of June 30, 2006,
as amended and restated as of August 29, 2006
================================================================================
BEAR, XXXXXXX & CO. INC.,
as Sole Bookrunner and Joint Lead Arranger
and
KEYBANK NATIONAL ASSOCIATION,
as Joint Lead Arranger
TABLE OF CONTENTS
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SECTION 1. DEFINITIONS................................................... 2
1.1. Defined Terms.................................................. 2
1.2. Other Definitional Provisions.................................. 41
1.3. Relationship with Original Credit Agreement.................... 41
SECTION 2. AMOUNT AND TERMS OF TERM COMMITMENTS.......................... 42
2.1. Term Commitments............................................... 42
2.2. Procedure for Term Loan Borrowing.............................. 42
2.3. Repayment of Term Loans........................................ 43
SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS..................... 44
3.1. Revolving Commitments.......................................... 44
3.2. Procedure for Revolving Loan Borrowing......................... 45
3.3. Swing Line Sub-Commitment...................................... 50
3.4. Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans.......................................................... 51
3.5. Commitment Fees, etc........................................... 54
3.6. Reduction or Termination of Revolving Commitments.............. 55
3.7. L/C Commitment................................................. 55
3.8. Procedure for Issuance of Letter of Credit..................... 56
3.9. Fees and Other Charges......................................... 57
3.10. L/C Participations............................................. 57
3.11. Reimbursement Obligation of the Borrowers...................... 60
3.12. Obligations Absolute........................................... 61
3.13. Letter of Credit Payments...................................... 61
3.14. Applications................................................... 62
SECTION 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT.. 62
4.1. Optional Prepayments........................................... 62
4.2. Mandatory Prepayments.......................................... 62
4.3. Conversion and Continuation Options............................ 66
4.4. Limitations on Eurodollar Tranches............................. 67
4.5. Interest Rates and Payment Dates............................... 67
4.6. Computation of Interest and Fees............................... 69
4.7. Inability to Determine Interest Rate........................... 70
4.8. Pro Rata Treatment and Payments................................ 70
4.9. Requirements of Law............................................ 72
4.10. Taxes.......................................................... 73
4.11. Indemnity...................................................... 76
4.12. Change of Lending Office....................................... 77
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4.13. Replacement of Lenders......................................... 77
4.14. Evidence of Debt............................................... 77
4.15. Illegality..................................................... 78
SECTION 5. REPRESENTATIONS AND WARRANTIES................................ 78
5.1. Financial Condition............................................ 79
5.2. No Change...................................................... 79
5.3. Corporate Existence; Compliance with Law....................... 80
5.4. Power; Authorization; Enforceable Obligations.................. 80
5.5. No Legal Bar................................................... 80
5.6. Litigation..................................................... 80
5.7. No Default..................................................... 81
5.8. Ownership of Property; Liens................................... 81
5.9. Intellectual Property.......................................... 81
5.10. Taxes.......................................................... 81
5.11. Federal Regulations............................................ 81
5.12. Labor Matters.................................................. 82
5.13. Pension and Benefit Plans...................................... 82
5.14. Investment Company Act; Other Regulations...................... 83
5.15. Subsidiaries................................................... 83
5.16. Use of Proceeds................................................ 83
5.17. Environmental Matters.......................................... 83
5.18. Accuracy of Information, etc................................... 84
5.19. Security Documents............................................. 85
5.20. Solvency....................................................... 85
5.21. Regulation H................................................... 85
5.22. Certain Documents.............................................. 85
5.23. Condition of the Property...................................... 86
5.24. No Condemnation................................................ 86
5.25. Operating Permits.............................................. 86
5.26. Adequate Utilities............................................. 86
5.27. Public Access.................................................. 86
5.28. Boundaries..................................................... 86
5.29. Assessments.................................................... 87
5.30. Leases......................................................... 87
5.31. Anti-Terrorism Laws............................................ 87
SECTION 6. CONDITIONS PRECEDENT.......................................... 88
6.1. Conditions to Initial Extension of Credit...................... 88
6.2. Conditions to Each Extension of Credit......................... 92
SECTION 7. AFFIRMATIVE COVENANTS......................................... 92
7.1. Financial Statements........................................... 92
7.2. Certificates; Other Information................................ 93
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7.3. Payment of Obligations......................................... 95
7.4. Maintenance of Existence; Compliance........................... 95
7.5. Maintenance of Property; Insurance............................. 95
7.6. Inspection of Property; Books and Records; Discussions......... 95
7.7. Notices........................................................ 96
7.8. Environmental Laws............................................. 96
7.9. Interest Rate Protection....................................... 97
7.10. Additional Collateral, etc..................................... 97
7.11. Further Assurances............................................. 99
7.12. Clean Down..................................................... 99
7.13. Surveys........................................................ 100
7.14. Ground Lease................................................... 100
7.15. Acquisition Agreement Representations.......................... 101
7.16. Tax Status..................................................... 101
7.17. Restriction Agreement.......................................... 101
7.18. Post-Closing Covenant.......................................... 102
SECTION 8. NEGATIVE COVENANTS............................................ 102
8.1. Financial Condition Covenants.................................. 102
8.2. Indebtedness................................................... 103
8.3. Liens.......................................................... 104
8.4. Fundamental Changes............................................ 105
8.5. Disposition of Property........................................ 106
8.6. Restricted Payments............................................ 107
8.7. Investments.................................................... 107
8.8. Optional Payments of Certain Debt.............................. 108
8.9. Transactions with Affiliates................................... 109
8.10. Sales and Leasebacks........................................... 109
8.11. Hedge Agreements............................................... 109
8.12. Changes in Fiscal Periods...................................... 109
8.13. Negative Pledge Clauses........................................ 109
8.14. Clauses Restricting Subsidiary Distributions................... 110
8.15. Lines of Business.............................................. 110
8.16. Amendments to Acquisition Documentation........................ 110
8.17. Amendment to Ground Lease...................................... 110
SECTION 9. EVENTS OF DEFAULT............................................. 110
SECTION 10. THE AGENTS................................................... 114
10.1. Appointment.................................................... 114
10.2. Delegation of Duties........................................... 114
10.3. Exculpatory Provisions......................................... 115
10.4. Reliance by Agents............................................. 115
10.5. Notice of Default.............................................. 115
10.6. Non-Reliance on Agents and Other Lenders....................... 116
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10.7. Indemnification................................................ 116
10.8. Agent in Its Individual Capacity............................... 117
10.9. Successor Administrative Agent................................. 117
10.10. Successor Canadian Administrative Agent........................ 118
10.11. Agents Generally............................................... 118
10.12. The Lead Arrangers and Co-Documentation Agents................. 118
10.13. No Reliance on Administrative Agent's, Canadian Administrative
Agent's and Syndication Agent's Customer Identification
Program........................................................ 118
10.14. USA Patriot Act................................................ 119
SECTION 11. MISCELLANEOUS................................................ 119
11.1. Amendments and Waivers......................................... 119
11.2. Notices........................................................ 121
11.3. No Waiver; Cumulative Remedies................................. 123
11.4. Survival of Representations and Warranties..................... 123
11.5. Payment of Expenses and Taxes.................................. 123
11.6. Successors and Assigns; Participations and Assignments......... 124
11.7. Adjustments; Set-off........................................... 128
11.8. Counterparts................................................... 129
11.9. Severability................................................... 129
11.10. Integration.................................................... 129
11.11. GOVERNING LAW.................................................. 129
11.12. Submission To Jurisdiction; Waivers............................ 129
11.13. Acknowledgments................................................ 130
11.14. Releases of Guarantees and Liens............................... 130
11.15. Confidentiality................................................ 131
11.16. WAIVERS OF JURY TRIAL.......................................... 131
11.17. Delivery of Addenda............................................ 131
11.18. Interest Rate Limitation....................................... 131
11.19. Canadian Borrower.............................................. 132
11.20. Judgment Currency.............................................. 132
11.21. Facility Allocation Mechanism.................................. 132
ANNEX:
A Pricing Grid
B Minimum LTM EBITDA
SCHEDULES:
1.1 Mortgaged Property
3.7 Existing Letters of Credit
5.4 Consents, Authorizations, Filings and Notices
5.15 Subsidiaries
5.19(a) UCC Filing Jurisdictions
5.19(b) Mortgage Filing Jurisdictions
8.2(d) Existing Indebtedness
8.3(f) Existing Liens
EXHIBITS:
A-1 Form of Addendum
A-2 Form of Conversion and Repayment Notice
B Form of Assignment and Assumption
C Form of Compliance Certificate
D Form of Guarantee and Collateral Agreement
E Form of Mortgage
F Form of Exemption Certificate
G-1 Form of U.S. Term Note
G-2 Form of Canadian Term Note
G-3 Form of U.S. Revolving Note
G-4 Form of Canadian Revolving Note
G-5 Form of U.S. Swing Line Note
G-6 Form of Canadian Swing Line Note
H Form of Closing Certificate
I-1 Form of Legal Opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P.
I-2 Form of Legal Opinion of Fasken Xxxxxxxxx DuMoulin LLP
I-3 Form of Legal Opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P. (California)
I-4 Form of Legal Opinion of Xxxxxx Xxxxxxxx & Xxxx LLP (Michigan)
I-5 Form of Legal Opinion of Xxxxxxxxx & Xxxxxx, P.L.L.P. (Minnesota)
I-6 Form of Legal Opinion of Xxxxx Xxxx LLP (Missouri)
I-7 Form of Legal Opinion of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A. (North
Carolina)
I-8 Form of Legal Opinion of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A. (South
Carolina)
I-9 Form of Legal Opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P. (Ohio)
I-10 Form of Legal Opinion of Xxxxxxxxxxx Xxxxx & Bubba, P.C.
(Pennsylvania)
I-11 Form of Legal Opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P. (Virginia)
I-12 Form of Legal Opinion of XxXxxxx Xxxxxx (Nova Scotia)
I-13 Form of Legal Opinion of Xxxxxx & Silver, Ltd. (Nevada)
J Form of Borrowing Notice
K Form of Discount Note
L Form of Debenture (Canada)
M Form of Security Agreement (Canada)
N Form of Notice of Security Interest in IP (Canada)
O Form of Canadian Guarantee Agreement
P Form of Quarterly Distribution Certificate
CREDIT AGREEMENT, dated as of June 30, 2006 (the "Original Credit
Agreement"), as amended and restated as of August 29, 2006 (this "Agreement"),
among CEDAR FAIR, L.P., a Delaware limited partnership (the "U.S. Borrower" or
"Cedar Fair LP") and 3147010 NOVA SCOTIA COMPANY, a Nova Scotia unlimited
liability company (the "Canadian Borrower") (collectively, the "Borrowers" and,
individually, a "Borrower"), the several banks and other financial institutions
or entities from time to time parties to this Agreement (the "Lenders"), BEAR,
XXXXXXX & CO. INC. ("Bear Xxxxxxx") and KEYBANK NATIONAL ASSOCIATION, as joint
lead arrangers (collectively, in such capacity, the "Lead Arrangers"), BEAR
XXXXXXX, as sole bookrunner (in such capacity, the "Sole Bookrunner"), BEAR
XXXXXXX CORPORATE LENDING INC., as syndication agent (in such capacity, and
together with its successors, the "Syndication Agent"), WACHOVIA BANK, NATIONAL
ASSOCIATION and GENERAL ELECTRIC CAPITAL CORPORATION, as co-documentation agents
(collectively, in such capacity, the "Co-Documentation Agents"), GE CANADA
FINANCE HOLDING COMPANY, as Canadian administrative agent (in such capacity, and
together with its successors, the "Canadian Administrative Agent"), NATIONAL
CITY (CANADIAN BRANCH OF NATIONAL CITY BANK), as Canadian syndication agent (in
such capacity, the "Canadian Syndication Agent"), FIFTH THIRD BANK, as Canadian
documentation agent (in such capacity, the "Canadian Documentation Agent"), and
KEYBANK NATIONAL ASSOCIATION, as administrative agent (in such capacity, and
together with its successors, the "Administrative Agent") and as collateral
agent (in such capacity, and together with its successors, the "Collateral
Agent").
WHEREAS, on June 30, 2006 (the "Original Closing Date"), Cedar Fair
LP, certain of the Lenders, the Syndication Agent, Bear Xxxxxxx Corporate
Lending Inc., as administrative agent, and the Collateral Agent, among others,
entered into the Original Credit Agreement pursuant to which (a) certain of the
Lenders thereunder (the "Original Revolving Lenders") agreed to extend credit to
the U.S. Borrower on a revolving credit basis, in an aggregate principal amount
of up to One Hundred Fifty Million Dollars ($150,000,000) (the "Original
Revolving Commitment") and (b) certain of the Lenders thereunder (the "Original
Term Lenders") agreed to make term loans to the U.S. Borrower in an aggregate
principal amount of One Billion Seven Hundred Forty Five Million Dollars
($1,745,000,000) (the "Original Term Loan").
WHEREAS, the U.S. Borrower has requested that the Lenders agree (i) to
increase the Original Revolving Commitment by an amount equal to One Hundred
Sixty Million Dollars ($160,000,000), such that, after giving effect to such
increase, the aggregate Revolving Commitments available to be drawn by the U.S.
Borrower are equal to Three Hundred Ten Million Dollars ($310,000,000), (ii) to
permit the Canadian Borrower to become a party hereto as an additional borrower,
(iii) to permit the U.S. Borrower to repay a portion of the Original Term Loan
in an aggregate principal amount of Two Hundred Seventy Million Dollars
($270,000,000) and to permit the Canadian Borrower to borrow such principal
amount from the Canadian Term Lenders, such that the aggregate principal amount
of Term Loans owing by the U.S. Borrower shall be equal to One Billion Four
Hundred Seventy Five Million Dollars ($1,475,000,000) and the aggregate
principal amount of Term Loans owing by the Canadian Borrower shall be equal to
Two Hundred Seventy Million Dollars ($270,000,000), and (iv) to provide
additional Revolving Commitments to the Canadian Borrower, such amounts to be
available in U.S. Dollars or Canadian Dollars, in an aggregate amount of up to
Thirty Five
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Million Dollars ($35,000,000) or, in the case of any Revolving Loans to be made
or Letters of Credit to be issued in Canadian Dollars, such amount represented
as the Dollar Equivalent of such amount in Canadian Dollars.
WHEREAS, it is the intent of the parties hereto that this Agreement
not constitute a novation of the obligations and liabilities of the parties
under the Original Credit Agreement and that this Agreement amend and restate in
its entirety the Original Credit Agreement.
NOW THEREFORE, in consideration of the foregoing, and for other
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. Defined Terms. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Acceptance Fee": a fee payable by the Canadian Borrower with respect
to the acceptance of a Bankers' Acceptance by a Canadian Revolving Lender under
this Agreement, as set forth in Section 4.5(e) and as such fee is set forth in
the definition of "Applicable Margin".
"Acquisition": Cedar Fair LP's acquisition of 100% of the outstanding
Capital Stock of the Target in accordance with the terms of the Acquisition
Documentation.
"Acquisition Agreement": the Purchase Agreement, dated as of May 22,
2006, among Bombay Hook LLC, CBS Corporation and Cedar Fair LP.
"Acquisition Documentation": collectively, the Acquisition Agreement
and all schedules, exhibits and annexes thereto and all side letters and
agreements affecting the terms thereof or entered into in connection therewith.
"Addendum": an instrument, substantially in the form of Exhibit A-1,
by which a Lender becomes a party to this Agreement as of the Closing Date.
"Adjustment Date": as defined in the Pricing Grid.
"Administrative Agent": as defined in the preamble to this Agreement.
"Affiliate": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"Agents": the collective reference to the Syndication Agent, the
Co-Documentation Agents, the Lead Arrangers, the Collateral Agent, the Canadian
Syndication Agent, the Canadian Documentation Agent, the Canadian Administrative
Agent and the
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Administrative Agent, which term shall include, for purposes of Section 10 only,
the Issuing Lender and the Swing Line Lender.
"Aggregate Exposure": with respect to any Lender at any time, an
amount equal to the sum of (a) the amount of such Lender's Term Commitments then
in effect or, if the Term Commitments have terminated, the aggregate then unpaid
principal amount of such Lender's Term Loans and (b) the amount of such Lender's
Revolving Commitment then in effect or, if the Revolving Commitments have
terminated, the amount of such Lender's Revolving Extensions of Credit then
outstanding, in the case of any Revolving Loans made or Letters of Credit issued
in Canadian Dollars, based on the Dollar Equivalent of such Revolving Loans or
Letters of Credit.
"Aggregate Exposure Percentage": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
"Agreement": this Credit Agreement.
"Anti-Terrorism Law": means 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.
"Applicable Margin": for each Type of Loan, the rate per annum set
forth under the relevant column heading below:
Canadian
Eurodollar Base Rate Prime Rate Acceptance
Loans Loans Loans Fee
---------- --------- ---------- ----------
U.S. Revolving Loans 2.50% 1.50% N.A. N.A.
Canadian Revolving Loans 2.50% 1.50% 1.50% 2.50%
Canadian Swing Line Loans N.A. 1.50% 1.50% X.X.
X.X. Term Loans 2.50% 1.50% N.A. N.A.
Canadian Term Loans 2.50% 1.50% N.A. N.A.
; provided, that, on and after the first Adjustment Date (as defined in the
Pricing Grid) occurring after the completion of two full fiscal quarters of
Cedar Fair LP after the Closing Date, the Applicable Margin with respect to U.S.
Revolving Loans, U.S. Swing Line Loans, Canadian Revolving Loans, Canadian Swing
Line Loans and the Acceptance Fee will be determined pursuant to the Pricing
Grid.
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter of
Credit.
"Approved Fund": as defined in Section 11.6.
"Asset Sale": any Disposition of (a) Property or series of related
Dispositions of Property (excluding any such Disposition permitted by clause
(a), (b), (c) or (d) of Section 8.5) that yields gross proceeds to any Group
Member (valued at the initial principal amount thereof in the case of non-cash
proceeds consisting of notes or other debt securities and valued at fair
4
market value in the case of other non-cash proceeds) in excess of $3,000,000 or
(b) any Capital Stock of any Subsidiary or series of related Dispositions of
Capital Stock of any Subsidiary (in either case, whether through the sale or
issuance thereof or otherwise), excluding any such Disposition permitted by
clause (d) of Section 8.5, that yields gross proceeds to any Group Member
(valued at the initial principal amount thereof in the case of non-cash proceeds
consisting of notes or other debt securities and valued at fair market value in
the case of other non-cash proceeds) in excess of $3,000,000.
"Assignee": as defined in Section 11.6(b).
"Assignment and Assumption": an Assignment and Assumption,
substantially in the form of Exhibit B.
"Available Canadian Revolving Commitment": as to any Canadian
Revolving Lender at any time, an amount equal to the excess, if any, of (a) such
Lender's Canadian Revolving Commitment then in effect over (b) such Lender's
Canadian Revolving Extensions of Credit then outstanding; provided that, in
calculating any Lender's Canadian Revolving Extensions of Credit for the purpose
of determining such Lender's Available Canadian Revolving Commitment pursuant to
Section 3.5, the aggregate principal amount of Canadian Swing Line Loans then
outstanding shall be deemed to be zero.
"Available Cash Flow": for any fiscal quarter of Cedar Fair LP, the
amount (which may be negative), of the following, without duplication, (a) (i)
Consolidated EBITDA for such fiscal quarter plus (ii) any decrease in
Consolidated Working Capital for such fiscal quarter minus (b) the sum, without
duplication, of (i) taxes paid in cash during such fiscal quarter, (ii) cash
interest expense and debt issuance costs and commissions, discounts and other
fees and charges associated with Indebtedness (including the Loans) to the
extent paid in cash during such fiscal quarter (other than in respect of closing
fees and expenses paid in connection with the Facilities on or about the Closing
Date and/or the Original Closing Date), (iii) the aggregate amount actually paid
by Cedar Fair LP and its Subsidiaries in cash during such fiscal quarter on
account of Capital Expenditures and, other than for purposes of calculating
Available Cash Flow under Section 4.2(d), Permitted Acquisitions or Investments
permitted under Section 8.7(k) (excluding the principal amount of Indebtedness
(other than Revolving Loans and Swing Line Loans) incurred to finance such
expenditures (but including repayments of any such Indebtedness made in cash
during such fiscal quarter, other than any such repayments made with the
proceeds of other Indebtedness) and any such expenditures financed with the
proceeds of any Reinvestment Deferred Amount or issuance of Capital Stock of
Cedar Fair LP), (iv) the aggregate amount of all prepayments of Revolving Loans
and Swing Line Loans during such fiscal quarter to the extent accompanied by
permanent reductions of the Revolving Commitments and all optional prepayments
of the Term Loans (and, other than for purposes of calculating Available Cash
Flow under Section 4.2(d), prepayments of other Indebtedness permitted
hereunder, unless such repayment is made from the proceeds of other Indebtedness
permitted hereunder or from the proceeds of any issuance of Capital Stock of
Cedar Fair LP (or other capital contribution to Cedar Fair LP) to (or by)
entities other than Loan Parties if such issuance or contribution is otherwise
permitted hereunder; provided that any such repayment of a revolving loan shall
be deducted pursuant to this clause (b) only to the extent accompanied by a
corresponding permanent reduction in the commitments applicable to such
revolving loans)
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during such fiscal quarter, (v) the aggregate amount of all regularly scheduled
principal payments of Funded Debt (including the Term Loans) of Cedar Fair LP
and its Subsidiaries made during such fiscal quarter (other than in respect of
any revolving credit facility to the extent there is not an equivalent permanent
reduction in commitments thereunder), (vi) any increase in Consolidated Working
Capital for such fiscal quarter, and (vii) transaction costs and other
non-recurring expenses paid in cash by Cedar Fair LP and its Subsidiaries during
such fiscal quarter, to the extent excluded in calculating such Consolidated
EBITDA, other than in respect of fees paid and expenses incurred in connection
with the Transaction.
"Available Cash Flow Application Date": as defined in Section 4.2(d).
"Available Distributable Cash": for any Quarterly Distribution Date,
without duplication, an amount equal to, for the period commencing on the
Original Closing Date and ending on the Reference Date for such Quarterly
Distribution Date,
(a) the aggregate cumulative amount of (i) without duplication, all
Available Cash Flow for all fiscal quarters ending during such period plus
(ii) Net Cash Proceeds from the issuance of Capital Stock of Cedar Fair LP
or any capital contributions to Cedar Fair LP received during such period
that have not been used to fund Capital Expenditures, Permitted
Acquisitions, Investments pursuant to Section 8.7(k), or to repay the Term
Loans, the Revolving Loans (to the extent that the Revolving Commitments
are permanently reduced by a corresponding amount), or any other
Indebtedness (to the extent such prepayment is otherwise permitted
hereunder),
minus
(b) the aggregate cumulative amount of (i) any and all Restricted
Payments made during such period pursuant to Section 8.6(c), plus (ii) any
and all prepayments of the Loans made or, without duplication, required to
be made during such period pursuant to Section 4.2(d);
provided, Available Distributable Cash, shall be adjusted as
necessary, upon the delivery of financial statements in accordance with
Section 7.1(a) or (b), in order to give effect to any variation in the
amounts set forth in such financial statements as compared to the
corresponding amounts in any previously delivered Quarterly Distribution
Certificate pursuant to Section 7.1(c).
"Available U.S. Revolving Commitment": as to any U.S. Revolving Lender
at any time, an amount equal to the excess, if any, of (a) such Lender's U.S.
Revolving Commitment then in effect over (b) such Lender's U.S. Revolving
Extensions of Credit then outstanding; provided that, in calculating any
Lender's U.S. Revolving Extensions of Credit for the purpose of determining such
Lender's Available U.S. Revolving Commitment pursuant to Section 3.5, the
aggregate principal amount of U.S. Swing Line Loans then outstanding shall be
deemed to be zero.
"BA Equivalent Loan": a Canadian Revolving Loan made by a Non BA
Lender evidenced by a Discount Note.
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"BA Loan": a Canadian Revolving Loan made by way of the issuance of
Bankers' Acceptances.
"Bankers' Acceptance" and "B/A": each means a xxxx of exchange,
including a depository xxxx issued in accordance with the Depository Bills and
Notes Act (Canada), denominated in Canadian Dollars, drawn by the Canadian
Borrower and accepted by a Canadian Lender, and includes a Discount Note.
"Base Rate": for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in
effect on such day plus 0.50%. For purposes hereof: "Prime Rate" shall mean the
rate of interest per annum publicly announced from time to time by KeyBank
National Association as its prime rate in effect at its principal office in
Cleveland, Ohio (the Prime Rate not being intended to be the lowest rate of
interest charged by KeyBank National Association in connection with extensions
of credit to debtors). Any change in the Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is
based upon the Base Rate or, with respect to Canadian Revolving Loans, the U.S.
Base Rate in Canada.
"Benefitted Lender": as defined in Section 11.7(a).
"Blocked Person": as defined in Section 5.31.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower" and "Borrowers": as defined in the preamble to this
Agreement.
"Borrower Credit Agreement Obligations": as defined in the Guarantee
and Collateral Agreement.
"Borrowing Date": any Business Day specified by the applicable
Borrower as a date on which the applicable Borrower requests the relevant
Lenders to make Loans hereunder.
"Borrowing Notice": with respect to any request for the borrowing of
Loans hereunder, a notice from the applicable Borrower, substantially in the
form of, and containing the information prescribed by, Exhibit J, delivered to
the Canadian Administrative Agent or the Administrative Agent, as applicable.
"Business": as defined in Section 5.17(b).
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks in New York City or (solely with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Canadian Term Loans or Canadian Revolving Extensions of Credit) Toronto,
Ontario are authorized or required by law to close, provided, that with respect
to notices and determinations in connection with, and payments of
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principal and interest on, Eurodollar Loans, such day is also a day for trading
by and between banks in Dollar deposits in the London interbank eurodollar
market.
"Canadian Administrative Agent": as defined in the preamble hereto.
"Canadian Benefit Plans": all material employee benefit plans
maintained or contributed to by any Group Member formed in Canada that are not
Canadian Pension Plans including, without limitation, all profit sharing,
savings, supplemental retirement, retiring allowance, severance, pension,
deferred compensation, welfare, bonus, incentive compensation, phantom stock,
supplementary unemployment benefit plans or arrangements and all material life,
health, dental and disability plans and arrangements in which the employees or
former employees of any Group Member employed in Canada participate or are
eligible to participate, in each case whether written or oral, funded or
unfunded, insured or self-insured, reported or unreported, but excluding all
stock option or stock purchase plans.
"Canadian Borrower": as defined in the preamble hereto; provided that,
upon the amalgamation of 3147010 Nova Scotia Company and Canada's Wonderland
Company in compliance with Section 8.4(a), the "Canadian Borrower" shall be the
Nova Scotia unlimited liability company resulting from such amalgamation.
"Canadian Documentation Agent": as defined in the preamble hereto.
"Canadian Dollar" and "Cdn. $": lawful currency of Canada.
"Canadian Facilities": collectively, the Canadian Term Facility and
the Canadian Revolving Facility.
"Canadian Guarantee Agreement": the Canadian Guarantee Agreement
executed and delivered by Canada's Wonderland Company, a Nova Scotia unlimited
liability company, substantially in the form of Exhibit O.
"Canadian Guarantor": (i) Canada's Wonderland Company (unless and
until amalgamated with 3147010 Nova Scotia Company), (ii) Cedar Fair LP, (iii)
the Subsidiary Guarantors, and (iv) each other Subsidiary of Cedar Fair LP or
the Canadian Borrower other than (y) any such other Subsidiary that is not a
Material Subsidiary and (z) the Canadian Borrower.
"Canadian Issuing Lender": Royal Bank of Canada, or any other Canadian
Revolving Lender from time to time designated by the Canadian Borrower as the
Canadian Issuing Lender with the consent of such Canadian Revolving Lender and
the Canadian Administrative Agent.
"Canadian L/C Obligations": at any time, an amount equal to the sum of
(a) the then aggregate undrawn and unexpired amount of the then outstanding
Canadian Letters of Credit and (b) the aggregate amount of drawings under the
Canadian Letters of Credit that have not then been reimbursed pursuant to
Section 3.11.
8
"Canadian L/C Participants": with respect to any Canadian Letter of
Credit, the collective reference to the Canadian Revolving Lenders other than
the Canadian Issuing Lender that issued such Canadian Letter of Credit.
"Canadian L/C Sub-Commitment": Five Million Dollars ($5,000,000).
"Canadian Lenders": each of the Canadian Revolving Lenders and the
Canadian Term Lenders, collectively.
"Canadian Letters of Credit": as defined in Section 3.7(b).
"Canadian Loans": each of the Canadian Revolving Loans and the
Canadian Term Loans, collectively.
"Canadian Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the
Canadian Loans and Canadian Reimbursement Obligations and interest accruing
after the filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or like proceeding, relating to the Canadian
Borrower, whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding) the Canadian Loans, the Canadian Reimbursement
Obligations and all other obligations and liabilities of the Canadian Borrower
to the Canadian Secured Parties, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under, out of, or in connection with, this Agreement, any other Loan
Document, the Canadian Letters of Credit or any other document made, delivered
or given in connection herewith or therewith, whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all fees, charges and disbursements of counsel
to the Lead Arrangers, to the Agents or to any Lender that are required to be
paid by the Canadian Borrower pursuant hereto or thereto) or otherwise.
"Canadian Payment Office": the office specified from time to time by
the Canadian Administrative Agent as its payment office by notice to Cedar Fair
LP, the Canadian Borrower and the Canadian Lenders.
"Canadian Pension Plans": any plan, program or arrangement which is
considered to be a pension plan for the purposes of any applicable pension
benefits standards, or tax, statute and/or regulation in Canada or any province
or territory thereof established, maintained or contributed to by, or to which
there is or may be an obligation to contribute by, any Group Member, their
respective employees or former employees, in each case whether written or oral,
funded or unfunded, insured or self-insured, reported or unreported.
"Canadian Prime Rate": on any day the greater of:
(a) the annual rate of interest quoted from time to time in the
"Report on Business" section of The Globe and Mail as being "Canadian Prime
Rate", "chartered bank prime rate" or words of similar description; and
(b) the CDOR Rate in effect from time to time plus 100 basis points
per annum.
9
Any change in the Canadian Prime Rate shall be effective as of the
opening of business on the date the change becomes effective generally.
"Canadian Prime Rate Loans": Canadian Loans which are denominated in
Canadian Dollars and in respect of which the Canadian Borrower is obligated to
pay interest in accordance with Section 4.5 at the Canadian Prime Rate plus the
Applicable Margin.
"Canadian Property" any right or interest in or to property of any
kind whatsoever, whether real, personal or mixed and whether tangible or
intangible, in each case as and while located in Canada, including, without
limitation, the Capital Stock of any Person formed and existing under the laws
of Canada or any territory, province or subdivision thereof.
"Canadian Refunded Swing Line Loans": as defined in Section 3.4(g).
"Canadian Refunding Date": as defined in Section 3.4(h).
"Canadian Reimbursement Obligations": the Reimbursement Obligations
owing by the Canadian Borrower.
"Canadian Revolving Commitment": as to any Canadian Revolving Lender,
the obligation of such Lender, if any, to make Canadian Revolving Loans and
participate in Canadian Swing Line Loans and Canadian Letters of Credit, in an
aggregate principal and/or face amount not to exceed the amount set forth under
the heading "Canadian Revolving Commitment" under such Lender's name on such
Lender's Addendum or in the Assignment and Assumption pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof. The aggregate amount of Canadian Revolving
Commitments as of the Closing Date is Thirty Five Million Dollars ($35,000,000).
"Canadian Revolving Credit Percentage": as to any Canadian Revolving
Lender at any time, the percentage which such Lender's Canadian Revolving
Commitment then constitutes of the aggregate Canadian Revolving Commitments (or,
at any time after the Canadian Revolving Commitments shall have expired or
terminated, the percentage which the aggregate amount of such Lender's Canadian
Revolving Extensions of Credit then outstanding constitutes of the amount of the
aggregate Canadian Revolving Extensions of Credit then outstanding).
"Canadian Revolving Extensions of Credit": as to any Canadian
Revolving Lender at any time, an amount equal to the sum of (a) the aggregate
principal amount of all Canadian Revolving Loans (including those made by way of
BA Loans calculated at the face amount of the Bankers' Acceptances issued in
connection therewith) made by such Lender then outstanding, (b) such Lender's
Canadian Revolving Credit Percentage of the Canadian L/C Obligations then
outstanding and (c) such Lender's Canadian Revolving Credit Percentage of the
Canadian Swing Line Loans then outstanding.
"Canadian Revolving Facility": as defined in the definition of
"Facility" in this Section 1.1.
10
"Canadian Revolving Lender": each Lender that has a Canadian Revolving
Commitment or that is the holder of Canadian Revolving Loans, including, if
applicable, institutions that, in separate capacities, serve as the Canadian
Issuing Lender.
"Canadian Revolving Loans": as defined in Section 3.1(b).
"Canadian Revolving Note": as defined in Section 4.14(d).
"Canadian Secured Parties": the collective reference to the Lenders
under the Canadian Facilities, the Collateral Agent (in its capacity as agent
for the other Canadian Secured Parties), the Canadian Administrative Agent, the
Canadian Documentation Agent, the Canadian Syndication Agent, the Qualified
Counterparties under Specified Agreements entered into by the Canadian Borrower
or any of its Subsidiaries, the Canadian Issuing Lenders and the Canadian Swing
Line Lender.
"Canadian Security Documents": collectively, (a) the Debenture
(Canada), the Security Agreement (Canada), and the Notice of Security Interest
in IP (Canada), in each case, between each of the Loan Parties having Canadian
Property and the Collateral Agent and (b) all other documents delivered to the
Collateral Agent granting or perfecting a Lien on Canadian Property of any
Person, including all financing statements filed in connection therewith, any
intellectual property security agreements, blocked account agreements or control
agreements that may be required to be delivered pursuant to this Agreement or
any other Loan Document with respect to such Canadian Property, and all other
security documents hereafter delivered to the Collateral Agent granting or
perfecting a Lien on such Canadian Property of any Person to secure the
obligations and liabilities of any Loan Party under any Loan Document.
"Canadian Swing Line Lender": GE Canada Finance Holding Company, and
each other Lender that has a Canadian Swing Line Sub-Commitment or that is a
holder of Canadian Swing Line Loans; provided, that there shall be no more than
one Canadian Swing Line Lender at any time.
"Canadian Swing Line Loans": as defined in Section 3.3(c).
"Canadian Swing Line Note": as defined in Section 4.14(d).
"Canadian Swing Line Participation Amount": as defined in Section
3.4(h).
"Canadian Swing Line Sub-Commitment": the obligation of the Canadian
Swing Line Lender to make Canadian Swing Line Loans pursuant to Section 3.4 in
an aggregate principal amount at any one time outstanding not to exceed Five
Million Dollars ($5,000,000).
"Canadian Syndication Agent": as defined in the preamble hereto.
"Canadian Term Commitment": as to any Canadian Term Lender, the
obligation of such Lender, if any, to make Canadian Term Loans in an aggregate
principal amount not to exceed the amount set forth under the heading "Canadian
Term Commitment" opposite such Lender's name (i) on Schedule 1 to such Lender's
Lender Addendum, (ii) in such Lender's Conversion and Repayment Notice, or (iii)
as the case may be, in the Assignment and
11
Assumption pursuant to which such Lender became a party hereto, as the same may
be changed from time to time pursuant to the terms hereof. The aggregate amount
of Canadian Term Commitments as of the Closing Date is Two Hundred Seventy
Million Dollars ($270,000,000).
"Canadian Term Credit Percentage": as to any Canadian Term Lender at
any time, the percentage which such Lender's Canadian Term Commitment then
constitutes of the aggregate Canadian Term Commitments (or, at any time after
the Canadian Term Commitments shall have expired or terminated, the percentage
which the aggregate principal amount of such Lender's Canadian Term Loans then
outstanding constitutes of the amount of the aggregate principal amount of
Canadian Term Loans then outstanding).
"Canadian Term Facility": as defined in the definition of "Facility"
in this Section 1.1.
"Canadian Term Lender": each Lender that has a Canadian Term
Commitment or that is the holder of Canadian Term Loans.
"Canadian Term Loans": as defined in Section 2.1.
"Canadian Term Note": as defined in Section 4.14(d).
"Capital Expenditures": for any period, with respect to any Person,
the aggregate of all expenditures by such Person and its Subsidiaries for the
acquisition or leasing (pursuant to a capital lease) of fixed or capital assets
or additions to equipment (including replacements, capitalized repairs and
improvements during such period) that should be capitalized under GAAP on a
consolidated balance sheet of such Person and its Subsidiaries.
"Capital Lease Obligations": as to any Person, the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes of
this Agreement, the amount of such obligations at any time shall be the
capitalized amount thereof at such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
unconditionally guaranteed by, the United States Government, the Canadian
Government or issued by any agency thereof and backed by the full faith and
credit of the United States or Canada, in each case maturing within one year
from the date of acquisition; (b) certificates of deposit, time deposits,
eurodollar time deposits or overnight bank deposits having maturities of six
months or less from the date of acquisition issued by any Lender or by any
commercial bank organized under the laws of the United States or any state
thereof or by a bank listed in Schedule I of the Bank Act (Canada) and having
combined capital and surplus of not less than $500,000,000; (c) commercial paper
of an issuer rated at least A-1 by Standard & Poor's Ratings
12
Services ("S&P") or P-1 by Xxxxx'x Investors Service, Inc. ("Moody's"), or
carrying an equivalent rating by a nationally recognized rating agency, if both
of the two named rating agencies cease publishing ratings of commercial paper
issuers generally, and maturing within six months from the date of acquisition;
(d) repurchase obligations of any Lender or of any commercial bank satisfying
the requirements of clause (b) of this definition, having a term of not more
than 30 days, with respect to securities issued or fully guaranteed or insured
by the United States or Canada; (e) securities with maturities of one year or
less from the date of acquisition issued or fully guaranteed by any state,
province, commonwealth or territory of the United States or Canada, by any
political subdivision or taxing authority of any such state, province,
commonwealth or territory or by any foreign government, the securities of which
state, province, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by S&P
or Al by Moody's; (f) securities with maturities of six months or less from the
date of acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (b) of this
definition; or (g) shares of money market mutual or similar funds which invest
exclusively in assets satisfying the requirements of clauses (a) through (f) of
this definition or money market funds that (i) comply with the criteria set
forth in Securities and Exchange Commission Rule 2a-7 under the Investment
Company Act of 1940, as amended, (ii) are rated AAA by S&P and Aaa by Moody's
and (iii) have portfolio assets of at least $5,000,000,000.
"CDOR Rate": on any day, the annual rate of interest which is the
arithmetic average of the "BA 1 month" (or, in the context of the definition of
"Discount Rate", the 1, 2, 3 or 6 month) rates applicable to Canadian Dollar
Bankers' Acceptances issued by Schedule I Lenders identified as such on the
Reuters Screen CDOR Page at approximately 10:00 a.m. (Toronto time) on such day
(as adjusted by the Canadian Administrative Agent after 10:00 a.m. to reflect
any error in any posted rate or in the posted average annual rate). If the rate
does not appear on the Reuters Screen CDOR Page as contemplated above, then the
CDOR Rate on any day shall be calculated as the arithmetic average of the
discount rates applicable to one month (or, in the context of the definition of
"Discount Rate", the 1, 2, 3 or 6 month) Canadian Dollar Bankers' Acceptances
of, and as quoted by, any two of the Schedule I Lenders, chosen by the Canadian
Administrative Agent in its discretion, as of 10:00 a.m. on such day, or if such
day is not a Business Day, then on the immediately preceding Business Day. If
less than two Schedule I Lenders quote the aforementioned rate, the CDOR Rate
shall be the arithmetic mean (rounded upward to the nearest basis point) of the
rates quoted by The Bank of Nova Scotia, Royal Bank of Canada and Canadian
Imperial Bank of Commerce.
"Cedar Fair LP": as defined in the preamble to this Agreement.
"Charges": as defined in Section 11.18.
"Closing Date": the date on which the conditions precedent set forth
in Section 6.1 shall have been satisfied, which date is August 30, 2006.
"Co-Documentation Agents": as defined in the preamble to this
Agreement.
"Code": the Internal Revenue Code of 1986, as amended from time to
time, together with the rules and regulations promulgated thereunder.
13
"Collateral": all property of the Loan Parties, now owned or hereafter
acquired, upon which a Lien is purported to be created by any Security Document.
"Collateral Agent": as defined in the preamble to this Agreement.
"Commitment": as to any Lender, the sum of the Term Commitments and
the Revolving Commitments of such Lender.
"Commitment Fee Rate": 0.50% per annum; provided that, on and after
the first Adjustment Date occurring after the completion of two full fiscal
quarters of Cedar Fair LP after the Closing Date, the Commitment Fee Rate will
be determined pursuant to the Pricing Grid.
"Commitment Letter": that certain Commitment Letter, dated May 22,
2006, among Cedar Fair LP, Bear Xxxxxxx Corporate Lending Inc. and Bear, Xxxxxxx
& Co. Inc.
"Commonly Controlled Entity": any entity, whether or not incorporated,
that is under common control with either Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes either Borrower and that is
treated as a single employer under Section 414 of the Code.
"Compliance Certificate": a certificate duly executed by a Responsible
Officer substantially in the form of Exhibit C.
"Conduit Lender": any special purpose entity organized and
administered by any Lender for the purpose of making Loans otherwise required to
be made by such Lender and designated by such Lender in a written instrument,
subject to the consent of the Administrative Agent and Cedar Fair LP (which
consent shall not be unreasonably withheld); provided, that the designation by
any Lender of a Conduit Lender shall not relieve the designating Lender of any
of its obligations to fund a Loan under this Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan, and the designating Lender (and not
the Conduit Lender) shall have the sole right and responsibility to deliver all
consents and waivers required or requested under this Agreement with respect to
its Conduit Lender, and provided, further, that no Conduit Lender shall (a) be
entitled to receive any greater amount pursuant to Section 4.9, 4.10, 4.11 or
11.5 than the designating Lender would have been entitled to receive in respect
of the extensions of credit made by such Conduit Lender or (b) be deemed to have
any Commitment.
"Confidential Information Memorandum": the Confidential Information
Memorandum dated June 2006 and furnished to the Lenders.
"Consolidated Current Assets": at any date, all amounts (other than
cash and Cash Equivalents) that would, in conformity with GAAP, be set forth
opposite the caption "total current assets" (or any like caption) on a
consolidated balance sheet of Cedar Fair LP and its Subsidiaries at such date.
"Consolidated Current Liabilities": at any date, all amounts that
would, in conformity with GAAP, be set forth opposite the caption "total current
liabilities" (or any like caption) on a consolidated balance sheet of Cedar Fair
LP and its Subsidiaries at such date, but excluding (a) the current portion of
any Funded Debt of Cedar Fair LP and its Subsidiaries and
14
(b) without duplication of clause (a) above, all Indebtedness consisting of
Revolving Loans or Swing Line Loans to the extent otherwise included therein.
"Consolidated EBITDA": for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge in
the statement of such Consolidated Net Income for such period, the sum of (a)
income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts, debt extinguishment
costs and other fees and charges associated with Indebtedness (including the
Loans), (c) depreciation and amortization expense, (d) amortization of
intangibles (including, but not limited to, goodwill) and organization costs,
(e) any extraordinary charges or losses determined in accordance with GAAP, (f)
non-cash compensation expenses arising from the issuance of stock, options to
purchase stock and stock appreciation rights and other equity-based compensation
to the management of Cedar Fair LP, (g) fees, commissions, expenses, debt
extinguishment costs and other costs incurred in connection with the Transaction
and, after the Original Closing Date, transactions costs and customary fees to
third parties incurred in connection with the issuance of stock or the issuance
or incurrence of debt for borrowed money, (h) any other non-recurring, non-cash
charges, non-cash expenses or non-cash losses of Cedar Fair LP or any of its
Subsidiaries for such period (excluding any such charge, expense or loss
incurred in the ordinary course of business that constitutes an accrual of or a
reserve for cash charges for any future period), (i) other than for purposes of
calculating Available Cash Flow and Available Distributable Cash, non-recurring
cash restructuring charges and expenses incurred in connection with the
Acquisition (including, without limitation, employee severance payments and
contract and license termination payments) in an aggregate amount not to exceed
$15,000,000 for all such restructuring charges, and (j) proceeds of business
interruption insurance and any expenses reimbursed by third parties (in each
case, only to the extent actually received in cash and only to the extent not
included in calculating Consolidated Net Income), provided, however, that cash
payments made in such period or in any future period in respect of such non-cash
charges, expenses or losses (excluding any such charge, expense or loss incurred
in the ordinary course of business that constitutes an accrual of or a reserve
for cash charges for any future period) shall be subtracted from Consolidated
Net Income in calculating Consolidated EBITDA in the period when such payments
are made, and minus, to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (a) interest income, (b) any
extraordinary income or gains determined in accordance with GAAP and (c) any
other non-cash income (excluding any items that represent the reversal of any
accrual of, or cash reserve for, anticipated cash charges in any prior period
that are described in the parenthetical to clause (h) above), all as determined
on a consolidated basis. For the purposes of calculating Consolidated EBITDA for
any period of four consecutive fiscal quarters (each, a "Reference Period")
pursuant to any determination of the Consolidated Leverage Ratio or LTM EBITDA,
(i) if at any time during such Reference Period Cedar Fair LP or any Subsidiary
shall have made any Material Disposition, the Consolidated EBITDA for such
Reference Period shall be reduced by an amount equal to the Consolidated EBITDA
(if positive) attributable to the property that is the subject of such Material
Disposition for such Reference Period or increased by an amount equal to the
Consolidated EBITDA (if negative) attributable thereto for such Reference Period
and (ii) if during such Reference Period Cedar Fair LP or any Subsidiary shall
have made a Material Acquisition, Consolidated EBITDA for such Reference Period
shall be calculated after giving pro forma (as determined in a manner reasonably
acceptable to the Syndication Agent) effect thereto as if such Material
Acquisition occurred on the first day of such Reference Period.
15
As used in this definition, "Material Acquisition" means the Acquisition and any
other acquisition of property or series of related acquisitions of property that
(a) constitutes assets comprising all or substantially all of an operating unit
of a business or constitutes all or substantially all of the common stock of a
Person and (b) involves the payment of consideration by Cedar Fair LP and its
Subsidiaries in excess of $5,000,000; and "Material Disposition" means any
Disposition of property or series of related Dispositions of property that
yields gross proceeds to Cedar Fair LP or any of its Subsidiaries in excess of
$5,000,000. Notwithstanding the foregoing, solely for the purposes of
calculating compliance with Section 8.1, Consolidated EBITDA for the period
ending on each of the following dates shall be increased by the following
additional amounts: Fiscal Q3 2006, an additional amount equal to $7,500,000;
Fiscal Q4 2006, an additional amount equal to $5,000,000; and Fiscal Q1 2007, an
additional amount equal to $2,500,000.
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio
of (a) Consolidated EBITDA for such period to (b) Consolidated Fixed Charges for
such period.
"Consolidated Fixed Charges": for any period, the sum (without
duplication) of (a) Consolidated Interest Expense for such period (other than
fees, commissions, expenses, debt extinguishment costs and other costs incurred
in connection with the Transaction), (b) income taxes paid in cash during such
period, and (c) Capital Expenditures paid in cash during such period (excluding
such amounts paid with Reinvestment Deferred Amounts and other amounts
reimbursed by a third party that is not a Group Member to the extent received in
cash and excluding Capital Expenditures constituting all or a portion of a
Permitted Acquisition).
"Consolidated Interest Expense": for any period, total cash interest
expense (including that attributable to Capital Lease Obligations) of Cedar Fair
LP and its Subsidiaries for such period with respect to all outstanding
Indebtedness of Cedar Fair LP and its Subsidiaries (including all commissions,
discounts and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing and net costs under Hedge Agreements in respect of
interest rates to the extent such net costs are allocable to such period in
accordance with GAAP); provided that Consolidated Interest Expense for each
period or portion thereof during the twelve month period prior to the Original
Closing Date shall be calculated on a pro forma basis after giving effect to the
borrowings hereunder assuming that the interest rate applicable thereto is
7.75%.
"Consolidated Leverage Ratio": at any date, the ratio of (a)
Consolidated Total Debt as of such date to (b) Consolidated EBITDA for the
period of four consecutive fiscal quarters most recently ended on or prior to
such date.
"Consolidated Net Income": for any period, the consolidated net income
(or loss) of Cedar Fair LP and its Subsidiaries, determined on a consolidated
basis in accordance with GAAP; provided that there shall be excluded (a) the
income (or deficit) of any Person accrued prior to the date it becomes a
Subsidiary of Cedar Fair LP or is merged into or consolidated with Cedar Fair LP
or any of its Subsidiaries, (b) the income (or deficit) of any Person (other
than a Subsidiary of Cedar Fair LP) in which Cedar Fair LP or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by Cedar Fair LP or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of
16
any Subsidiary of Cedar Fair LP to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under any Loan
Document) or Requirement of Law applicable to such Subsidiary.
"Consolidated Total Debt": at any date, the aggregate principal amount
of all Indebtedness (of the type described in clauses (a) through (e),
inclusive, of the definition of such term) of Cedar Fair LP and its Subsidiaries
at such date, other than Indebtedness for the Revolving Loans, determined on a
consolidated basis in accordance with GAAP.
"Consolidated Working Capital": at any date, the excess of
Consolidated Current Assets on such date over Consolidated Current Liabilities
on such date.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Control Agreements": as defined in the Guarantee and Collateral
Agreement.
"Conversion and Repayment Notice": an instrument, substantially in the
form of Exhibit A-2, by which an Original Lender confirms (a) in the case of any
Original Term Lender, (i) the conversion of the principal amount specified
therein of its Original Term Loans into U.S. Term Loans, (ii) the repayment of
the remaining principal amount of its Original Term Loans and (iii) the
principal amount of such Original Term Lender's Canadian Term Commitment and (b)
in the case of any Original Revolving Lender, (i) the conversion of the
principal amount specified therein of its Original Revolving Commitment into
U.S. Revolving Commitments and (ii) the principal amount of such Original
Revolving Lender's additional U.S. Revolving Commitments.
"Current Holder Group": (i) those individuals who are officers and
directors of Cedar Fair LP or the Managing General Partner on the Closing Date,
(ii) the spouses, heirs, legatees, descendants and blood relatives to the third
degree of consanguinity of any such individual, (iii) the executors and
administrators of the estate of any such individual, and any court appointed
guardian of any such individual, and (iv) any trust for the benefit of any such
individual referred to in the foregoing clauses (i) and (ii) 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.
"Debenture (Canada)": the Amended and Restated Debenture executed and
delivered by Canada's Wonderland Company, substantially in the form of Exhibit
L.
"Default": any of the events specified in Section 9, whether or not
any requirement for the giving of notice, the lapse of time, or both, has been
satisfied.
"Defaulting Lender": any Lender with respect to which a Lender Default
is in effect.
17
"Derived U.S. Swing Line Loan Rate" shall mean a rate per annum equal
to (a) U.S. Swing Line Lender's costs of funds as quoted to Cedar Fair LP by the
U.S. Swing Line Lender and agreed to by Cedar Fair LP, plus (b) the Applicable
Margin (from time to time in effect) for U.S. Revolving Loans that are Base Rate
Loans.
"Discount Note": a non-interest bearing promissory note denominated in
Canadian Dollars, substantially in the form of Exhibit K, issued by the Canadian
Borrower to a Non BA Lender to evidence a BA Equivalent Loan.
"Discount Proceeds": for any Bankers' Acceptance issued hereunder, an
amount calculated on the applicable Borrowing Date by multiplying:
(a) the face amount of the Bankers' Acceptance by
(b) the quotient obtained by dividing:
(i) one by
(ii) the sum of one plus the product of:
(A) the Discount Rate applicable to the Bankers' Acceptance and
(B) a fraction, the numerator of which is the number of days in
the applicable Interest Period and the denominator of which is 365,
with the quotient being rounded up or down to the fifth decimal place
and 0.000005 being rounded up.
"Discount Rate": (a) in respect of any Bankers' Acceptance accepted by
a Lender that is a Schedule I Lender, the CDOR Rate for the applicable period;
and (b) in respect of any Bankers' Acceptance accepted by a Lender that is a
Schedule II Lender, the lesser of (i) the CDOR Rate for the applicable period
plus 0.10% and (ii) the rate quoted by the Schedule II Reference Lenders.
"Disposition": with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof. The
terms "Dispose" and "Disposed of" shall have correlative meanings.
"Disposition Repayment Offer": as defined in Section 4.2(c).
"Distribution Suspension Period": each period (a) commencing on the
first day of any fiscal quarter during which (i) financial statements are
delivered pursuant to Section 7.1(a) or (b) or a Compliance Certificate is
delivered pursuant to Section 7.2(b) in respect of the immediately preceding
fiscal quarter demonstrating that the Consolidated Leverage Ratio of Cedar Fair
LP as of the last day of such immediately preceding fiscal quarter is greater
than the Maximum Consolidated Leverage Ratio for such immediately preceding
fiscal quarter, (ii) Cedar Fair LP has failed to deliver financial statements as
and when required pursuant to Section 7.1(a) or (b), as applicable, or a
Compliance Certificate as and when required to be delivered pursuant
18
to Section 7.2(b), or (iii) a Quarterly Distribution Certificate is delivered
pursuant to Section 7.1(c) in respect of the immediately preceding fiscal
quarter demonstrating that the Consolidated Leverage Ratio of Cedar Fair LP as
of the last day of such immediately preceding fiscal quarter is greater than the
Maximum Consolidated Leverage Ratio for such immediately preceding fiscal
quarter and (b) ending on (i) in the case of any Distribution Suspension Period
arising pursuant to clause (a)(i) above, the last day of the next fiscal quarter
as to which financial statements have been delivered pursuant to Section 7.1(a)
or (b), as applicable, and a Compliance Certificate has been delivered pursuant
to Section 7.2(b) demonstrating that the Consolidated Leverage Ratio of Cedar
Fair LP as of the last day of such fiscal quarter is less than or equal to the
Maximum Consolidated Leverage Ratio for such fiscal quarter, (ii) in the case of
any Distribution Suspension Period arising pursuant to clause (a)(ii) above, the
date that is ten (10) days after the date on which Cedar Fair shall have
delivered the required financial statements and/or Compliance Certificate, as
applicable (unless any such financial statements and/or Compliance Certificate
demonstrates that a Distribution Suspension Period would occur under clause
(a)(i) above) and (iii) in the case of any Distribution Suspension Period
arising pursuant to clause (a)(iii) above by reason of a Quarterly Distribution
Certificate delivered by Cedar Fair LP, the earlier to occur of (x) the day on
which Cedar Fair LP delivers the financial statements and Compliance Certificate
required by Sections 7.1(a) or (b), as applicable, and 7.2(b) in respect of the
quarterly or annual fiscal period, as applicable, ending on the Reference Date
with respect to which such Quarterly Distribution Certificate was delivered
(unless any such financial statements and/or Compliance Certificate demonstrates
that a Distribution Suspension Period would occur under clause (a)(i) above) and
(y) the last day of the next fiscal quarter occurring thereafter as to which
financial statements have been delivered pursuant to Section 7.1(a) or (b), as
applicable, and a Compliance Certificate has been delivered pursuant to Section
7.2(b) demonstrating that the Consolidated Leverage Ratio of Cedar Fair LP as of
the last day of such fiscal quarter is less than or equal to the Maximum
Consolidated Leverage Ratio for such fiscal quarter.
"Dollar Equivalent": as to any amount denominated in Canadian Dollars
at any time, the equivalent amount in Dollars as determined on the basis of the
Exchange Rate for the purchase of Dollars with Canadian Dollars as of the date
of the calculation.
"Dollars" and "$": dollars in lawful currency of the United States.
"Domestic Subsidiary": any Subsidiary of Cedar Fair LP organized under
the laws of any jurisdiction within the United States.
"Environmental Laws": any and all foreign, Federal, Canadian, state,
provincial, local or municipal laws, rules, orders, regulations, statutes,
ordinances, codes, decrees, requirements of any Governmental Authority or other
Requirements of Law regulating, relating to or imposing liability or standards
of conduct concerning protection of human health or the environment, as now or
may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto and any regulations
promulgated thereunder.
19
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the maximum rates
(expressed as a decimal fraction) of reserve requirements in effect on such day
(including basic, supplemental, marginal and emergency reserves under any
regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto) dealing with reserve requirements prescribed for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board) maintained by a member bank of the Federal Reserve
System.
"Eurodollar Base Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, the rate per annum determined on the
basis of the rate for deposits in Dollars for a period equal to such Interest
Period commencing on the first day of such Interest Period appearing on Page
3750 of the Telerate screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period. In the event that such rate does
not appear on Page 3750 of the Telerate screen (or otherwise on such screen),
the "Eurodollar Base Rate" shall be determined by reference to such other
comparable publicly available service for displaying eurodollar rates as may be
selected by the Administrative Agent or, in the absence of such availability, by
reference to the rate at which the Administrative Agent is offered Dollar
deposits at or about 11:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where
its eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.
"Eurodollar Loans": Loans the rate of interest applicable to which is
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded to the sixth decimal point):
Eurodollar Base Rate
-----------------------------------------
1.00 - Eurocurrency Reserve Requirements
(to the extent, if any, applicable to the
Eurodollar Tranche in question)
"Eurodollar Tranche": the collective reference to Eurodollar Loans
under a particular Facility the then current Interest Periods with respect to
all of which begin on the same date and end on the same later date (whether or
not such Loans shall originally have been made on the same day).
"Event of Default": any of the events specified in Section 9, provided
that any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Exchange Rate": on any day, (i) with respect to Canadian Dollars, the
rate at which Dollars can be acquired on such day by the Canadian Administrative
Agent in Toronto, Canada (or such other location in Canada selected by the
Canadian Administrative Agent) for Canadian Dollars in accordance with its
customary practice for commercial loans in Canada, and (ii) with respect to
Dollars, the rate at which Canadian Dollars can be acquired on such day by
20
the Canadian Administrative Agent in Toronto, Canada (or such other location in
Canada selected by the Canadian Administrative Agent) for Dollars in accordance
with its customary practice for commercial loans in Canada.
"Excluded Foreign Subsidiary": any Foreign Subsidiary in respect of
which either (a) the pledge of all of the Capital Stock of such Subsidiary as
Collateral under the U.S. Collateral Documents or (b) the guaranteeing by such
Subsidiary of the U.S. Borrower Credit Agreement Obligations (as defined in the
Guarantee and Collateral Agreement) would, in the good faith and reasonable
judgment of Cedar Fair LP, result in adverse United States tax consequences to
Cedar Fair LP. For the avoidance of doubt, the Canadian Borrower and Canada's
Wonderland Company are not Excluded Foreign Subsidiaries (notwithstanding the
fact that they are not Subsidiary Guarantors).
"Excluded Indebtedness": all Indebtedness permitted under Section 8.2
(other than clause (h) thereof).
"Existing Letters of Credit": means each letter of credit issued or
deemed to have been issued under this Agreement from and after the Original
Closing Date that is outstanding on the Closing Date. The Existing Letters of
Credit are listed in Schedule 3.7.
"Facility": each of (a) the U.S. Term Commitments and the U.S. Term
Loans made thereunder (the "U.S. Term Facility"), (b) the U.S. Revolving
Commitments and the U.S. Revolving Extensions of Credit made thereunder (the
"U.S. Revolving Facility"), (c) the Canadian Term Commitments and the Canadian
Term Loans made thereunder (the "Canadian Term Facility"), and (d) the Canadian
Revolving Commitments and the Canadian Revolving Extensions of Credit (the
"Canadian Revolving Facility").
"FAM" shall mean the mechanism for the allocation and exchange of
interests in the Facilities and collections thereunder established under Section
11.21.
"FAM Dollar Lender" shall mean any Lender that has made or holds no
Loans in Canadian Dollars and has no Canadian Revolving Commitments.
"FAM Exchange" shall mean the exchange of the Lender's interests
provided for in Section 11.21.
"FAM Exchange Date" shall mean the date on which (a) any event
referred to in Section 9(f) shall occur in respect of the U.S. Borrower, the
Canadian Borrower or any other Loan Party, (b) an acceleration of the maturity
of the Loans pursuant to Section 9 shall occur, (c) the Collateral Agent shall
have been directed to exercise remedies on a material portion of the Collateral,
or (d) a payment default shall occur with respect to payments due on the final
maturity date of any of the Facilities.
"FAM Percentage" shall mean, as to each Lender, a fraction, expressed
as a decimal, of which (a) the numerator shall be the aggregate of the Specified
Obligations owed to such Lender and such Lender's participation in the then
aggregate undrawn and unexpired amount of the Letters of Credit outstanding
immediately prior to giving effect to the FAM Exchange and (b) the denominator
shall be the aggregate of the Specified Obligations owed to all
21
the Lenders and the then aggregate undrawn and unexpired amount of the Letters
of Credit outstanding immediately prior to giving effect to the FAM Exchange.
For purposes of computing each Lender's FAM Percentage, all Specified
Obligations and the then aggregate undrawn and unexpired amount of the then
outstanding Letters of Credit which are denominated in Canadian Dollars shall be
translated into Dollars at the Exchange Rate in effect on the FAM Exchange Date.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Fiscal Q1": for any year means the first quarterly fiscal period of
Cedar Fair LP during such year and ending on or about March 31 of such year.
"Fiscal Q2": for any year means the second quarterly fiscal period of
Cedar Fair LP during such year and ending on or about June 30 of such year.
"Fiscal Q3": for any year means the third quarterly fiscal period of
Cedar Fair LP during such year and ending on or about September 30 of such year.
"Fiscal Q4": for any year means the fourth quarterly fiscal period of
Cedar Fair LP during such year and ending on December 31 of such year.
"Foreign Lender": as defined in Section 4.10(d).
"Foreign Subsidiary": any Subsidiary of Cedar Fair LP that is not a
Domestic Subsidiary.
"Funded Debt": as to any Person, all Indebtedness (of the type
described in clauses (a) through (e), inclusive, of the definition of such term)
of such Person that matures more than one year from the date of its creation or
matures within one year from the date of its creation but is renewable or
extendible, at the option of such Person, to a date more than one year from such
date or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date, including all current maturities and current sinking fund payments in
respect of such Indebtedness whether or not required to be paid within one year
from the date of its creation and, in the case of the Borrowers, Indebtedness in
respect of the Loans.
"Funding Office": the office of the Administrative Agent specified in
Section 11.2 or such other office as may be specified from time to time by the
Administrative Agent as its funding office by written notice to Cedar Fair LP
and the Lenders.
"GAAP": generally accepted accounting principles in the United States
as in effect from time to time.
22
"Governmental Authority": any nation or government, any state,
province, territory or other political subdivision thereof, any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities exchange
and any self-regulatory organization (including the National Association of
Insurance Commissioners).
"Ground Lease": means that certain Ground Lease between Redevelopment
Agency of the City of Santa Xxxxx and Paramount Parks, Inc. dated June 1, 1989.
"Group Members": the collective reference to the Borrowers and their
respective Subsidiaries.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
Agreement executed and delivered by the U.S. Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit D, as amended and restated on
the Closing Date.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including
any bank under any letter of credit) to induce the creation of which the
guaranteeing person has issued a reimbursement, counterindemnity or similar
obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
of any other third Person (the "primary obligor") in any manner, whether
directly or indirectly, including any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (1) for the purchase or payment of any such primary obligation or
(2) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss in respect
thereof; provided, however, that the term Guarantee Obligation shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrowers in good faith.
"Hedge Agreements": any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or
23
similar plan providing for payments only on account of services provided by
current or former directors, officers, employees or consultants of the Borrowers
or the Subsidiaries shall be a Hedge Agreement.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party or applicant under or in respect of acceptances, letters of
credit, surety bonds or similar arrangements, (g) the liquidation value of all
redeemable preferred Capital Stock of such Person, (h) all Guarantee Obligations
of such Person in respect of obligations of the kind referred to in clauses (a)
through (g) above, (i) all obligations of the kind referred to in clauses (a)
through (h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation, and
(j) for the purposes of Sections 8.2 and 9(e) only, all obligations of such
Person in respect of Hedge Agreements. The Indebtedness of any Person shall
include the Indebtedness of any other entity (including any partnership in which
such Person is a general partner) to the extent such Person is liable therefor
as a result of such Person's ownership interest in or other relationship with
such entity, except to the extent the terms of such Indebtedness expressly
provide that such Person is not liable therefor.
"Indemnified Liabilities": as defined in Section 11.5.
"Indemnitee": as defined in Section 11.5.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvency Law": any of Title 11 of the United States Code entitled
"Bankruptcy", the Bankruptcy and Insolvency Act (Canada), the Companies'
Creditors Arrangement Act (Canada), and the Winding-Up and Restructuring Act
(Canada), each as now and hereafter in effect, any successors to such statutes
and any other applicable insolvency or other similar law of any jurisdiction
(federal, state, provincial, or otherwise), including any law of any
jurisdiction permitting a debtor to obtain a stay or a compromise of the claims
of its creditors against it.
"Insolvent": pertaining to a condition of Insolvency.
"Intellectual Property": the collective reference to all rights,
priorities and privileges relating to intellectual property and intellectual
property rights, whether arising under United States, multinational or foreign
laws or otherwise, including copyrights, copyright
24
licenses, patents, patent licenses, trademarks, trademark licenses, trade
secrets, know-how, show-how, technology, and all other confidential business or
technical information, and all rights to xxx at law or in equity for any past,
present or future infringement, misappropriation, dilution or other impairment
thereof, including the right to receive all proceeds and damages therefrom, and
all other rights of any kind whatsoever accruing thereunder or pertaining
thereto.
"Interest Payment Date": (a) as to any Base Rate Loan (other than any
Swing Line Loan), the last day of each March, June, September and December to
occur while such Loan is outstanding and the final maturity date of such Loan,
(b) as to any Eurodollar Loan having an Interest Period of three months or less,
the last day of such Interest Period, (c) as to any Eurodollar Loan having an
Interest Period longer than three months, each day that is three months, or a
whole multiple thereof, after the first day of such Interest Period and the last
day of such Interest Period, (d) as to any Canadian Prime Rate Loan, on the last
day of each month while such Loan is outstanding and the final maturity date of
such Loan, (e) as to any Loan (other than any Revolving Loan that is a Base Rate
Loan and any Swing Line Loan), the date of any repayment or prepayment made in
respect thereof and (f) as to any Swing Line Loan, the Swing Line Loan Maturity
Date.
"Interest Period": as to any Eurodollar Loan or BA Loan, (a)
initially, the period commencing on the borrowing or conversion date, as the
case may be, with respect to such Eurodollar Loan or BA Loan and ending (1) in
the case of Eurodollar Loans, one, two, three or six months thereafter and (2)
in the case of BA Loan, one, two, three or six months thereafter, subject to
availability for all Canadian Revolving Lenders, in each case as selected by the
applicable Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Eurodollar Loan or BA Loan and ending (1) in the case of Eurodollar Loans,
one, two, three or six months thereafter and (2) in the case of BA Loans, one,
two, three, or six months thereafter, subject to availability for all Canadian
Revolving Lenders, in each case as selected by the applicable Borrower, by
irrevocable notice to the Administrative Agent or the Canadian Administrative
Agent, as applicable, not less than three Business Days prior to the last day of
the then current Interest Period with respect thereto; provided that, all of the
foregoing provisions relating to Interest Periods are subject to the following:
(i) if any Interest Period selected in respect of a Eurodollar
Loan would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Interest
Period into another calendar month in which event such Interest Period
shall end on the immediately preceding Business Day;
(ii) if any Interest Period selected in respect of a BA Loan
would otherwise end on a day that is not a Business Day, such Interest
Period shall end on the immediately preceding Business Day;
25
(iii) no Borrower may select an Interest Period under a
particular Facility that would extend beyond the Revolving Termination
Date or beyond the date final payment is due on the applicable Term
Loans, as the case may be;
(iv) any Interest Period in respect of a Eurodollar Loan that
begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on the last Business Day
of a calendar month; and
(v) the applicable Borrower shall select Interest Periods so as
not to require a payment or prepayment of any Eurodollar Loan during
an Interest Period for such Loan.
"Investments": as defined in Section 8.7.
"Issuing Lender": any U.S. Issuing Lender and any Canadian Issuing
Lender.
"L/C Fee Payment Date": the last day of each March, June, September
and December and the last day of the Revolving Commitment Period.
"L/C Obligations": the U.S. L/C Obligations and the Canadian L/C
Obligations.
"L/C Participants": the U.S. L/C Participants and the Canadian L/C
Participants.
"L/C Reserve Account": as defined in Section 11.21(b).
"L/C Sub-Commitment": the U.S. L/C Sub-Commitment and Canadian L/C
Sub-Commitment.
"Lead Arrangers": as defined in the preamble to this Agreement.
"Lender Default": (a) the failure (which has not been cured) of a
Lender to make available its portion of any incurrence of Loans or to fund its
portion of any Swing Line Loan under Section 3.4(b) or 3.4(g), or to fulfill is
obligations as an L/C Participant with respect to Letters of Credit under
Section 3.10, unless the conditions thereto have not been satisfied or (b) a
Lender having notified the Administrative Agent or the Canadian Administrative
Agent and/or the Borrowers that it does not intend to comply with its
obligations under Section 2.1, 3.1, 3.4(b), 3.4(g), 3.7 or 3.10, unless the
conditions thereto have not been satisfied, in the case of either (a) or (b) as
a result of the appointment of a receiver, liquidator or conservator or similar
official with respect to such Lender at the direction or request of any
regulatory agency or authority.
"Lenders": as defined in the preamble to this Agreement; provided,
that unless the context otherwise requires, each reference herein to the Lenders
shall be deemed to include any Conduit Lender.
"Letters of Credit": the Canadian Letters of Credit and the U.S.
Letters of Credit.
26
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"Loan": any loan made by any Lender pursuant to this Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Applications and the Notes.
"Loan Parties": each Group Member that is a party to a Loan Document.
"LTM CAPEX": for any Quarterly Distribution Date, the aggregate amount
paid by Cedar Fair LP and its Subsidiaries on account of Capital Expenditures
during the twelve (12) month period ending on the Reference Date for such
Quarterly Distribution Date.
"LTM EBITDA": for any Quarterly Distribution Date, Consolidated EBITDA
for the twelve (12) month period ending on the Reference Date for such Quarterly
Distribution Date.
"Majority Facility Lenders": with respect to any Facility, the
Non-Defaulting Lenders holding more than 50% of the aggregate unpaid principal
amount of the Canadian Term Loans, the U.S. Term Loans, the Canadian Revolving
Extensions of Credit, or the U.S. Revolving Extensions of Credit, as the case
may be, outstanding under such Facility (or, in the case of the Canadian
Revolving Credit Facility or the U.S. Revolving Facility, prior to any
termination of, respectively, the Canadian Revolving Commitments or the U.S.
Revolving Commitments, the Non-Defaulting Lenders holding more than 50% of,
respectively, the Canadian Revolving Commitments or the U.S. Revolving
Commitments).
"Management Subscription Agreements": the collective reference to any
subscription agreement or stockholders agreement between the U.S. Borrower and
any present or former officer or employee of any Group Member.
"Managing General Partner": Cedar Fair Management Inc., an Ohio
corporation, together with its successors and assigns.
"Material Adverse Effect": a material adverse effect on (a) the
Transaction, (b) the business, assets, property, financial condition or results
of operations of Cedar Fair LP and its Subsidiaries taken as a whole or (c) the
validity or enforceability of this Agreement or any of the other Loan Documents
or the rights or remedies of the Agents or the Lenders hereunder or thereunder
or the validity, perfection or priority of the Collateral Agent's Liens upon the
Collateral.
"Material Subsidiary": at any time, any Subsidiary of Cedar Fair LP
(i) that has assets at such time comprising two percent (2%) or more of the
consolidated assets of Cedar Fair LP, or (ii) whose operations in the current
fiscal year are expected to, or whose operations in the most recent fiscal year
did (or would have if such person had been a Subsidiary for such entire fiscal
year) represent two percent (2%) or more of the Consolidated EBITDA for such
fiscal
27
year; provided, however, that notwithstanding the foregoing, the term "Material
Subsidiary" shall (a) include, without limitation, the Canadian Borrower, Magnum
Management Corporation, an Ohio corporation, Cedar Point of Michigan, Inc., a
Michigan corporation, Michigan's Adventure, Inc., a Michigan corporation, Cedar
Point, Inc., an Ohio corporation, Paramount Parks Inc., a Delaware corporation,
Kings Island Company, a Delaware corporation, Western Row Properties, Inc., an
Ohio corporation, Paramount Parks Experience Inc., a Nevada corporation,
Canada's Wonderland Company, a Nova Scotia unlimited liability company, Xxxxxx
Xxxxx Farm, a California general partnership, Cedar Fair, an Ohio general
partnership, and Boeckling, L.P., an Ohio limited partnership.
"Materials of Environmental Concern": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"Maximum Consolidated Leverage Ratio": for any fiscal quarter shall be
the ratio specified below for such fiscal quarter:
Maximum Consolidated
Fiscal Quarters Ending During the Period From: Leverage Ratio
---------------------------------------------- --------------------
Original Closing Date through Fiscal Q3 2007 6.25 to 1.00
December 31, 2007 through Fiscal Q3 2008 5.50 to 1.00
December 31, 2008 through Fiscal Q3 2009 5.25 to 1.00
December 31, 2009 through Fiscal Q3 2010 4.75 to 1.00
Thereafter 4.50 to 1.00
; provided that in the event that Cedar Fair LP consummates an offering of its
Capital Stock yielding Net Cash Proceeds to Cedar Fair LP of at least
$200,000,000 on or prior to the last day of Fiscal Q3 2007, the "Maximum
Consolidated Leverage Ratio" shall be 5.65 to 1.00 for each fiscal quarter
ending during the period from the date of receipt of such proceeds through the
last day of Fiscal X0 0000.
"Maximum Rate": as defined in Section 11.18.
"Minimum LTM EBITDA minus LTM CAPEX": for any Quarterly Distribution
Date occurring in May and August of each year, the amount set forth in Annex B
for such Quarterly Distribution Date.
"Mortgaged Properties": the real properties listed on Schedule 1.1, as
to which the Collateral Agent for the benefit of the U.S. Secured Parties and/or
the Canadian Secured Parties, as the case may be, shall be granted a Lien
pursuant to the Mortgages and any other real property in respect of which a
Mortgage is provided after the Original Closing Date.
"Mortgages": each of the mortgages, charges, debentures and deeds of
trust made by any Loan Party in favor of, or for the benefit of, the Collateral
Agent for the benefit of the U.S. Secured Parties and/or the Canadian Secured
Parties, as the case may be, substantially in the form of Exhibit E or Exhibit
L, as the case may be, (with such changes thereto, by way of
28
amendment, amendment and restatement, or otherwise, as shall be advisable under
the law of the jurisdiction in which such mortgage, charge, debenture or deed of
trust is to be recorded).
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
Recovery Event, the proceeds thereof in the form of cash and Cash Equivalents
(including any such proceeds received by way of deferred payment of principal
pursuant to a note or installment receivable or purchase price adjustment
receivable or by the Disposition of any non-cash consideration received in
connection therewith or otherwise, but only as and when received) of such Asset
Sale or Recovery Event, net of reasonable and customary attorneys' fees,
accountants' fees, brokers' commissions, investment banking fees, amounts
required to be applied to the repayment of Indebtedness secured by a Lien
expressly permitted hereunder on any asset that is the subject of such Asset
Sale or Recovery Event (other than any Lien pursuant to a Security Document) and
other reasonable and customary fees and expenses actually incurred in connection
therewith and net of taxes paid or reasonably estimated to be payable as a
result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and (b) in connection with any
issuance or sale of Capital Stock, any capital contribution or any incurrence of
Indebtedness, the cash proceeds received from such issuance, contribution or
incurrence, net of reasonable and customary attorneys' fees, investment banking
fees, accountants' fees, underwriting discounts and commissions and other
reasonable and customary fees and expenses actually incurred in connection
therewith.
"Non BA Lender": a Canadian Revolving Lender that cannot or does not
as a matter of policy accept Bankers' Acceptances.
"Non-Defaulting Lender": each Lender other than a Defaulting Lender.
"Non-Excluded Taxes": as defined in Section 4.10(a).
"Non-Foreign Lender": as defined in Section 4.10(e).
"Note": as defined in Section 4.14.
"Notice of Security Interest in IP (Canada)": the Notice of Security
Interest in IP executed and delivered by the Canadian Borrower and each Canadian
Guarantor, substantially in the form of Exhibit N.
"Obligations": without duplication, the Canadian Obligations and the
U.S. Obligations.
"Original Closing Date": as defined in the recitals hereto.
"Original Credit Agreement": as defined in the recitals hereto.
"Original Lenders": the Original Term Lenders and the Original
Revolving Lenders.
29
"Original Revolving Commitment": as defined in the recitals hereto.
"Original Revolving Lenders": as defined in the recitals hereto.
"Original Term Lenders": as defined in the recitals hereto.
"Original Term Loan": as defined in the recitals hereto.
"Other Taxes": any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant": as defined in Section 11.6(c).
"Payment Amount": as defined in Section 3.11.
"Payment Office": the office specified from time to time by the
Administrative Agent as its payment office by notice to Cedar Fair LP and the
U.S. Lenders, in the case of the U.S. Facilities, and the office specified from
time to time by the Canadian Administrative Agent as its payment office by
notice to Cedar Fair LP and the Canadian Lenders, in the case of the Canadian
Facilities.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA (or any successor).
"Permitted Acquisition": the acquisition by Cedar Fair LP or any other
Loan Party of all or substantially all of the assets of a Person or line of
business of a Person, or more than 50% of the Capital Stock of a Person
(referred to herein as the "Acquired Entity"); provided that (i) the Acquired
Entity shall be in a line of business consistent with the requirements of
Section 8.15; (ii) the consideration paid in connection with all such
acquisitions (including all transaction costs and all Indebtedness incurred or
assumed in connection therewith) during the term of this Agreement shall not
exceed $200,000,000 in the aggregate (plus the Net Cash Proceeds of the issuance
or sale of Capital Stock of Cedar Fair LP or, without duplication, a capital
contribution to Cedar Fair LP, received during such period but only to the
extent that such Net Cash Proceeds are not required to prepay Term Loans or
Revolving Loans pursuant to Section 4.2(a)); (iii) (A) Cedar Fair LP shall have
provided the Administrative Agent and the Lenders, at least five days prior to
any such Permitted Acquisition, historical financial statements of the Acquired
Entity and pro forma consolidated financial statements of Cedar Fair LP
accompanied by an officer's certificate of Cedar Fair LP demonstrating
compliance with the covenants set forth in Section 8.1, as of the most recently
completed period ending prior to such acquisition for which the financial
statements required by Section 7.1(a) and (b) were required to be delivered,
after giving pro forma effect to such acquisition and to any other event
occurring during or after such period and (B) after giving pro forma effect to
such acquisition and all Indebtedness assumed, incurred or repaid in connection
therewith, the Consolidated Leverage Ratio on the date of such acquisition
(based on Consolidated EBITDA determined on a pro forma basis, as set forth in
the definition of Consolidated EBITDA, as of the most recently ended fiscal
quarter for Cedar Fair LP for which financial statements have been delivered)
shall be at
30
least 0.25 to 1.0 lower than the Maximum Consolidated Leverage Ratio for such
fiscal quarter; (iv) after giving effect to such acquisition, there shall be at
least $50,000,000 of unused and available Revolving Commitments; (v) at the time
of such acquisition both before and after giving effect thereto, no Default or
Event of Default shall have occurred and be continuing; and (vi) Cedar Fair LP
shall comply, and shall cause the Acquired Entity to comply, with the applicable
provisions of Sections 7.10 and 7.11 and the Security Documents.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which either Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5)
of ERISA, but excluding, for greater certainty, Canadian Benefit Plans and
Canadian Pension Plans.
"Pricing Grid": the pricing grid attached hereto as Annex A.
"Pro Forma Balance Sheet": as defined in Section 5.1(a).
"Projections": as defined in Section 7.2(c).
"Properties": as defined in Section 5.17(a).
"Property": collectively, any U.S. Property, any Canadian Property and
any other right or interest in or to property of any kind whatsoever, whether
real, personal or mixed and whether tangible or intangible, including, without
limitation, Capital Stock.
"Qualified Counterparty": (a) with respect to the ISDA Master
Agreement, together with the related schedules and confirmations, entered into
between KeyBank National Association and the U.S. Borrower on June 23, 2006,
KeyBank National Association, and (b) with respect to any other Specified
Agreement, any counterparty thereto that, at the time such Specified Agreement
was entered into, was a Lender, an Affiliate of a Lender, an Agent or an
Affiliate of an Agent; provided that, in the event a counterparty to a Specified
Agreement at the time such Specified Agreement was entered into was a Qualified
Counterparty, such counterparty shall constitute a Qualified Counterparty
hereunder and under the other Loan Documents.
"Qualifying Canadian Lender": as defined in Section 4.10(h).
"Qualifying Senior Unsecured Debt": any senior unsecured Indebtedness
of Cedar Fair LP or any Subsidiary Guarantor, no part of the principal of which
is required to be paid (whether by way of mandatory sinking fund, mandatory
redemption, mandatory prepayment or otherwise), prior to the date that is six
months after the final maturity of the Term Loans (it being understood that any
required offer to purchase such Indebtedness as a result of a change of control
or asset sale shall not violate the foregoing restriction) and the terms and
conditions of
31
which are otherwise reasonably satisfactory to the Administrative Agent and the
Syndication Agent.
"Quarterly Distribution Certificate" a certificate duly executed by a
Responsible Officer substantially in the form of Exhibit P.
"Quarterly Distribution Date": Each February 15, May 15, August 15 and
November 15 of each fiscal year of Cedar Fair LP (or, if determined by Cedar
Fair LP, from time to time, (a) in the case of any such February 15, a day that
is not earlier than February 5 of such year or later than March 15 of such year
and (b) in the case of any such May 15, August 15 or November 15, a day that is
not more than ten (10) days immediately before or immediately after any such
date); provided that, in any such case, (i) Cedar Fair LP shall have delivered,
not less than ten (10) days prior to such Quarterly Distribution Date, a
Quarterly Distribution Certificate for the fiscal quarter or fiscal year
immediately preceding such date (and a Quarterly Distribution Date shall not
occur in respect of any given date in the absence of such timely delivery) and
(ii) if a Distribution Suspension Period shall have arisen pursuant to clause
(a)(ii) of the definition thereof any such date may be extended (such extension
not to exceed thirty (30) days from the date on which the applicable financial
statements or Compliance Certificate were due) to the date on which such
Distribution Suspension Period ends pursuant to clause (b)(ii) of such
definition by reason of the delivery of the applicable financial statements
and/or Compliance Certificate.
"Recovery Event": any settlement of or payment in respect of any
property or casualty insurance claim or any condemnation proceeding relating to
any asset of any Group Member.
"Reference Date": (a) for each Quarterly Distribution Date occurring
on or about February 15 (which, as set forth in the definition of Quarterly
Distribution Date, may be as late as March 15) in any fiscal year of Cedar Fair
LP, the last day of Fiscal Q4 for the immediately preceding fiscal year; (b) for
each Quarterly Distribution Date occurring on or about May 15 in any fiscal year
of Cedar Fair LP, the last day of Fiscal Q1 for such fiscal year; (c) for each
Quarterly Distribution Date occurring on or about August 15 in any fiscal year
of Cedar Fair LP, the last day of Fiscal Q2 for such fiscal year; and (d) for
each Quarterly Distribution Date occurring on or about November 15 in any fiscal
year of Cedar Fair LP, the last day of Fiscal Q3 for such fiscal year.
"Register": as defined in Section 11.6(b).
"Regulation U": Regulation U of the Board as in effect from time to
time.
"Reimbursement Obligation": the obligation of the Borrowers to
reimburse any Issuing Lender pursuant to Section 3.11 for amounts drawn under
Letters of Credit.
"Reinvestment Deferred Amount": with respect to any Reinvestment
Event, the aggregate Net Cash Proceeds received by any Group Member in
connection therewith that are not applied to prepay the Term Loans or the
Revolving Loans pursuant to Section 4.2(c) as a result of the delivery of a
Reinvestment Notice.
32
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
which Cedar Fair LP has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
Officer and delivered to the Syndication Agent stating that no Event of Default
has occurred and is continuing and that Cedar Fair LP (directly or indirectly
through a Subsidiary) intends and expects to use all or a specified portion of
the Net Cash Proceeds of an Asset Sale or Recovery Event to acquire or repair
fixed or capital assets useful in its business.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
Event, the Reinvestment Deferred Amount relating thereto less any amount
expended prior to the relevant Reinvestment Prepayment Date to acquire or repair
fixed or capital assets useful in Cedar Fair LP's or its Subsidiaries' business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
Event, the earlier of (a) the date occurring 180 days after the receipt by Cedar
Fair LP (directly or indirectly through a Subsidiary) of proceeds relating to
such Reinvestment Event (or the 180th day after the last day of such 180 period
if the acquisition or repair of the applicable fixed or capital assets is a
project authorized by the board of directors of Cedar Fair LP prior to such date
and Cedar Fair LP or any of its Subsidiaries has entered into a contract to
complete such project) and (b) the date on which Cedar Fair LP shall have
determined not to, or shall have otherwise ceased to, acquire or repair fixed or
capital assets useful in Cedar Fair LP's business with all or any portion of the
relevant Reinvestment Deferred Amount.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC Reg.
Section 4043.
"Required Lenders": at any time, the Non-Defaulting Lenders holding
more than 50% of the sum of (a) the aggregate Term Commitments then in effect
or, if the Term Commitments have been fully utilized or terminated, the
aggregate unpaid principal amount of the Term Loans then outstanding and (b) the
aggregate Revolving Commitments then in effect or, if the Revolving Commitments
have been terminated, the aggregate Revolving Extensions of Credit then
outstanding; provided that in the case of any Revolving Extensions of Credit
made in Canadian Dollars, such amounts shall be valued at the Dollar Equivalent
of such Canadian Dollars as of the relevant date of determination for purposes
of this definition.
"Requirement of Law": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
33
"Responsible Officer": the chief executive officer, president or chief
financial officer of Cedar Fair LP, but in any event, with respect to financial
matters, the chief financial officer of Cedar Fair LP.
"Restricted Payments": as defined in Section 8.6.
"Restriction Agreement" means that certain Declaration of Restrictions
and Covenants dated as of August 15, 1989 and recorded in volume 1083, page 696,
in Portage County, Ohio.
"Reuters Screen CDOR Page": the display designated as page CDOR on the
Reuters Monitor Money Rates Service or such other page as may, from time to
time, replace that page on that service for the purpose of displaying bid
quotations for Bankers' Acceptances accepted by leading Canadian banks.
"Revolving Commitment Period": the period from and including the
Closing Date to the Revolving Termination Date.
"Revolving Commitments": collectively, the U.S. Revolving Commitment
and the Canadian Revolving Commitment.
"Revolving Credit Facilities": collectively, the U.S. Revolving
Facility and the Canadian Revolving Facility.
"Revolving Extensions of Credit": at any time, the aggregate U.S.
Revolving Extensions of Credit and Canadian Revolving Extensions of Credit
outstanding at such time.
"Revolving Lender": each U.S. Revolving Lender and each Canadian
Revolving Lender.
"Revolving Loans": collectively, the U.S. Revolving Loans and the
Canadian Revolving Loans.
"Revolving Percentage": as to any U.S. Revolving Lender at any time,
such Lender's U.S. Revolving Credit Percentage and as to any Canadian Revolving
Lender at any time, such Lender's Canadian Revolving Credit Percentage.
"Revolving Termination Date": August 30, 2011.
"Schedule I Lender": any Lender named on Schedule I to the Bank Act
(Canada).
"Schedule II Lender": any Lender named on Schedule II or Schedule III
to the Bank Act (Canada).
"Schedule II Reference Lenders": National City (Canadian Branch of
National City Bank) and Fifth Third Bank.
34
"Seasonal Adjusted Distribution Cap": as of each applicable Quarterly
Distribution Date occurring on or about May 15 or August 15 in any fiscal year
of Cedar Fair LP, an amount in Dollars equal to the Seasonal Distribution Rate
multiplied by the aggregate number of Units (as defined in the Cedar Fair LP
Partnership Agreement and as determined in accordance with Sections 4.2 and 4.3
thereof) issued and outstanding as of such Quarterly Distribution Date.
"Seasonal Distribution Rate": for any year, the amount specified below
for such year.
Seasonal
Distribution
Year Rate
---- ------------
2006 0.47
2007 0.48
2008 0.49
2009 0.50
2010 0.51
2011 0.52
2012 0.53
"SEC": the Securities and Exchange Commission, any successor thereto
and any analogous Governmental Authority.
"Secured Parties": the U.S. Secured Parties and the Canadian Secured
Parties.
"Security Agreement (Canada)": the Amended and Restated Security
Agreement executed and delivered by the Canadian Borrower and each Canadian
Guarantor, substantially in the form of Exhibit M.
"Security Documents": the collective reference to the U.S. Security
Documents, the Canadian Security Documents, the Mortgages, and all other
security documents hereafter delivered to the Collateral Agent granting or
perfecting a Lien on any Property of any Person to secure the obligations and
liabilities of any Loan Party under the Loan Documents (including, without
limitation, all financing statements filed in connection therewith, any
intellectual property security agreements, blocked account agreements or control
agreements that may be required to be delivered pursuant to this Agreement or
any other Loan Document, and all other security documents hereafter delivered to
the Collateral Agent granting or perfecting a Lien on any Property of any Person
to secure the obligations and liabilities of any Loan Party under any Loan
Document), any such document, agreement or instrument is amended, supplemented,
replaced or otherwise modified from time to time.
"Seller": Bombay Hook LLC.
"Single Employer Plan": any Plan that is covered by Title IV of ERISA,
but that is not a Multiemployer Plan.
"Sole Bookrunner": as defined in the preamble to this Agreement.
35
"Solvent": when used with respect to any Person, means that, as of any
date of determination, (a) the amount of the "present fair saleable value" of
the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the "present fair
saleable value" of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"Specified Agreement": as defined in the Guarantee and Collateral
Agreement.
"Specified Hedge Agreement": (a) the ISDA Master Agreement, together
with the related schedules and confirmations, entered into between KeyBank
National Association and the U.S. Borrower on June 23, 2006, and (b) any Hedge
Agreement (i) entered into after the Original Closing Date by (A) any Loan Party
and (B) any Qualified Counterparty, as counterparty and (ii) that has been
designated by such Qualified Counterparty and any Loan Party, by notice to the
Administrative Agent, as a Specified Hedge Agreement provided, that any release
of Collateral or Subsidiary Guarantors effected in the manner permitted by this
Agreement shall not require the consent of holders of obligations under
Specified Hedge Agreements. The designation of any Hedge Agreement as a
Specified Hedge Agreement shall not create in favor of any Qualified
Counterparty that is a party thereto any rights in connection with the
management or release of any Collateral or of the obligations of any Subsidiary
Guarantor under the Guarantee and Collateral Agreement except as provided in
Section 11.14.
"Specified Obligations": the Obligations consisting of (a) the
principal of and interest on Loans and (b) reimbursement obligations in respect
of Letters of Credit.
"Statutory Prior Claims": claims for vacation pay, worker's
compensation, unemployment insurance, pension plan contributions, employee or
non-resident withholding tax source deductions, unremitted goods and services or
sales taxes, realty taxes (including utility charges which are collectible like
realty taxes), customs duties or similar statutory obligations secured by a Lien
on any Group Member's assets.
"Subordinated Debt": any unsecured Indebtedness of Cedar Fair LP, no
part of the principal of which is required to be paid (whether by way of
mandatory sinking fund, mandatory redemption, mandatory prepayment or
otherwise), prior to the date that is six months after the final maturity of the
Term Loans (it being understood that any required offer to purchase such
Indebtedness as a result of a change of control or asset sale shall not violate
the foregoing restriction) and the terms and conditions of which (including
subordination provisions
36
consistent with those prevailing in debt capital markets of the United States)
are otherwise satisfactory to the Administrative Agent and the Syndication
Agent.
"Subordinated Debt Indenture": the indenture pursuant to which any
Subordinated Debt is issued.
"Subordinated Intercompany Note": as defined in the Guarantee and
Collateral Agreement.
"Subsidiary": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of Cedar Fair LP.
"Subsidiary Guarantor": each Subsidiary of Cedar Fair LP, other than
the Canadian Borrower, Canada's Wonderland Company, any Excluded Foreign
Subsidiary and any Subsidiary that is not a Material Subsidiary (provided that
the aggregate assets of all such Subsidiaries that are not Material Subsidiaries
and are not Subsidiary Guarantors shall not exceed ten percent (10%) of the
consolidated assets of Cedar Fair LP and shall not represent more than ten
percent (10%) of Consolidated EBITDA in any fiscal year).
"Swing Line Lender": each of the U.S. Swing Line Lender and the
Canadian Swing Line Lender.
"Swing Line Loan Maturity Date": shall mean, with respect to any Swing
Line Loan, the earlier of (a) the date that is agreed to by the applicable Swing
Line Lender and the applicable Borrower with respect to such Swing Line Loan,
but in no event later than fifteen (15) days after the date such Swing Line Loan
is made, and (b) the Revolving Termination Date.
"Swing Line Loans": collectively, the U.S. Swing Line Loans and the
Canadian Swing Line Loans.
"Swing Line Sub-Commitment": as to any U.S. Swing Line Lender, its
U.S. Swing Line Sub-Commitment, and as to any Canadian Swing Line Lender, its
Canadian Swing Line Sub-Commitment.
"Syndication Agent": as defined in the preamble to this Agreement.
"Target": Paramount Parks Inc., a Delaware corporation.
"Taxes": as defined in Section 4.10(a).
37
"Term Commitments": collectively, the U.S. Term Commitments and the
Canadian Term Commitments.
"Term Lender": each U.S. Term Lender and each Canadian Term Lender.
"Term Loans": collectively, each U.S. Term Loan and each Canadian Term
Loan.
"Title Endorsements": as defined in Section 6.1(j)(ii).
"Transaction": collectively, the Acquisition, the termination of the
Existing Credit Agreement and the Existing Note Agreements (as both such terms
were defined in the Original Credit Agreement) and the payment of all
Indebtedness thereunder, and the transactions contemplated by the Original
Credit Agreement and this Agreement.
"Transferee": any Assignee or Participant.
"Type": as to any Loan, its nature as a Base Rate Loan, a Canadian
Prime Rate Loan, a BA Loan or a Eurodollar Loan.
"United States": the United States of America.
"U.S. Base Rate in Canada": at any time, the greater of (i) the
average rate of interest per annum (rounded upward to the nearest basis point)
equal to the rate at which the principal office of any two of the Schedule I
Lenders chosen by the Canadian Administrative Agent in its discretion, as of
10:00 a.m. on such day, or if such day is not a Business Day, then on the
immediately preceding Business Day in Xxxxxxx, Xxxxxxx, announces from time to
time as the reference rate of interest for demand commercial loans in Dollars to
its Canadian borrowers, adjusted automatically with each change in such rate
without the necessity of any notice to any Loan Party or any other Person, and
(ii) the Federal Funds Effective Rate (converted to a rate based on a 365-day
period), in effect from time to time, plus 0.50% per annum. If the Canadian
Administrative Agent is unable to determine the applicable rate, the US Base
Rate in Canada will be, at any time, the greater of (i) the prime rate per annum
most recently reported in the "Money Rate" column of the Wall Street Journal,
adjusted automatically with each change in such rate without the necessity of
any notice to any Loan Party or any other Person, and (ii) the Federal Funds
Effective Rate (converted to a rate based on a 365-day period), in effect from
time to time, plus 0.50% per annum. Any change in the U.S. Base Rate in Canada
shall be effective as of the opening of business on the day the change becomes
effective generally.
"U.S. Borrower": as defined in the preamble hereto.
"U.S. Facilities": collectively, the U.S. Term Facility and the U.S.
Revolving Facility.
"U.S. Issuing Lender": KeyBank National Association, or any other U.S.
Revolving Lender from time to time designated by Cedar Fair LP as the U.S.
Issuing Lender with the consent of such U.S. Revolving Lender and the
Administrative Agent.
38
"U.S. L/C Obligations": at any time, an amount equal to the sum of (a)
the then aggregate undrawn and unexpired amount of the then outstanding U.S.
Letters of Credit and (b) the aggregate amount of drawings under the U.S.
Letters of Credit that have not then been reimbursed pursuant to Section 3.11.
"U.S. L/C Participants": with respect to any U.S. Letter of Credit,
the collective reference to the U.S. Revolving Lenders other than the U.S.
Issuing Lender that issued such U.S. Letter of Credit.
"U.S. L/C Sub-Commitment": $30,000,000.
"U.S. Lenders": each of the U.S. Revolving Lenders and the U.S. Term
Lenders, collectively.
"U.S. Letters of Credit": as defined in Section 3.7(a).
"U.S. Loans": each of the U.S. Revolving Loans and the U.S. Term
Loans, collectively.
"U.S. Obligations": the unpaid principal of and interest on
(including, without limitation, interest accruing after the maturity of the U.S.
Loans and U.S. Reimbursement Obligations and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the U.S. Borrower, whether or not
a claim for post-filing or post-petition interest is allowed in such proceeding)
the U.S. Loans, the U.S. Reimbursement Obligations and all other obligations and
liabilities of the U.S. Borrower to the Secured Parties, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred, which may arise under, out of, or in connection with, this
Agreement, any other Loan Document, the U.S. Letters of Credit or any other
document made, delivered or given in connection herewith or therewith, whether
on account of principal, interest, reimbursement obligations, fees, indemnities,
costs, expenses (including, without limitation, all fees, charges and
disbursements of counsel to the Arrangers, to the Agents or to any Lender that
are required to be paid by the U.S. Borrower pursuant hereto or thereto) or
otherwise.
"U.S. Property": any right or interest in or to property of any kind
whatsoever, whether real, personal or mixed and whether tangible or intangible,
in each case as and while located in the United States, including, without
limitation, the Capital Stock of any Person formed and existing under the laws
of the United States or any State or subdivision thereof.
"U.S. Refunded Swing Line Loans": as defined in Section 3.4(b).
"U.S. Refunding Date": as defined in Section 3.4(c).
"U.S. Reimbursement Obligations": the Reimbursement Obligations owing
by the U.S. Borrower.
"U.S. Revolving Commitment": as to any U.S. Revolving Lender, the
obligation of such Lender, if any, to make U.S. Revolving Loans and participate
in U.S. Swing Line Loans
39
and U.S. Letters of Credit, in an aggregate principal and/or face amount not to
exceed the amount set forth under the heading "U.S. Revolving Commitment" under
such Lender's name on (i) on Schedule 1 to such Lender's Addendum, (ii) in such
Lender's Conversion and Repayment Notice, or (iii) as the case may be, in the
Assignment and Assumption pursuant to which such Lender became a party hereto,
as the same may be changed from time to time pursuant to the terms hereof. The
aggregate amount of U.S. Revolving Commitments as of the Closing Date is Three
Hundred Ten Million Dollars ($310,000,000).
"U.S. Revolving Credit Percentage": as to any U.S. Revolving Lender at
any time, the percentage which such Lender's U.S. Revolving Commitment then
constitutes of the aggregate U.S. Revolving Commitments (or, at any time after
the U.S. Revolving Commitments shall have expired or terminated, the percentage
which the aggregate amount of such Lender's U.S. Revolving Extensions of Credit
then outstanding constitutes of the amount of the aggregate U.S. Revolving
Extensions of Credit then outstanding).
"U.S. Revolving Extensions of Credit": as to any U.S. Revolving Lender
at any time, an amount equal to the sum of (a) the aggregate principal amount of
all U.S. Revolving Loans made by such Lender then outstanding, (b) such Lender's
U.S. Revolving Credit Percentage of the U.S. L/C Obligations then outstanding
and (c) such Lender's U.S. Revolving Credit Percentage of the U.S. Swing Line
Loans then outstanding.
"U.S. Revolving Facility": as defined in the definition of "Facility"
in this Section 1.1.
"U.S. Revolving Lender": each Lender that has a U.S. Revolving
Commitment or that is the holder of U.S. Revolving Loans, including institutions
that, in separate capacities, serve as the U.S. Issuing Lender.
"U.S. Revolving Loans": as defined in Section 3.1(a).
"U.S. Revolving Note": as defined in Section 4.14.
"U.S. Secured Parties": the collective reference to the Lenders under
the U.S. Facilities, the Agents, the Qualified Counterparties under Specified
Agreements entered into by the U.S. Borrower or any Subsidiary Guarantor, the
U.S. Issuing Lenders and the U.S. Swing Line Lenders.
"U.S. Security Documents": collectively, (a) the Guarantee and
Collateral Agreement and (b) all other documents delivered to the Collateral
Agent granting or perfecting a Lien on U.S. Property of any Person, including,
without limitation, all financing statements filed in connection therewith, any
intellectual property security agreements, blocked account agreements or control
agreements that may be required to be delivered pursuant to this Agreement or
any other Loan Document with respect to such U.S. Property, and all other
security documents hereafter delivered to the Collateral Agent granting or
perfecting a Lien on such U.S. Property of any Person to secure the obligations
and liabilities of any Loan Party under any Loan Document.
40
"U.S. Swing Line Lender": KeyBank National Association, and each other
Lender that has a U.S. Swing Line Sub-Commitment or that is a holder of U.S.
Swing Line Loans; provided, that there shall be no more than one U.S. Swing Line
Lender at any time.
"U.S. Swing Line Loans": as defined in Section 3.3(a)
"U.S. Swing Line Note": as defined in Section 4.14.
"U.S. Swing Line Participation Amount": as defined in Section 3.4(c).
"U.S. Swing Line Sub-Commitment": the obligation of the U.S. Swing
Line Lender to make U.S. Swing Line Loans pursuant to Section 3.4 in an
aggregate principal amount at any one time outstanding not to exceed Thirty
Million Dollars ($30,000,000).
"U.S. Term Commitment": as to any U.S. Term Lender, the obligation of
such Lender, if any, to make U.S. Term Loans in an aggregate principal amount
not to exceed the amount set forth under the heading "U.S. Term Commitment"
opposite such Lender's name (i) on Schedule 1 to such Lender's Addendum, (ii) in
such Lender's Conversion and Repayment Notice, or (iii) as the case may be, in
the Assignment and Assumption pursuant to which such Lender became a party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. The aggregate amount of U.S. Term Commitments as of the Closing Date is
One Billion Four Hundred Seventy Five Million Dollars ($1,475,000,000).
"U.S. Term Credit Percentage": as to any U.S. Term Lender at any time,
the percentage which such Lender's U.S. Term Commitment then constitutes of the
aggregate U.S. Term Commitments (or, at any time after the U.S. Term Commitments
shall have expired or terminated, the percentage which the aggregate principal
amount of such Lender's U.S. Term Loans then outstanding constitutes of the
amount of the aggregate principal amount of U.S. Term Loans then outstanding).
"U.S. Term Facility": as defined in the definition of "Facility" in
this Section 1.1.
"U.S. Term Lender": each Lender that has a U.S. Term Commitment or
that is the holder of U.S. Term Loans.
"U.S. Term Loans": as defined in Section 2.1.
"U.S. Term Note": as defined in Section 4.14.
"USA Patriot Act": the USA Patriot Act, Title III of Pub. L. 107-56
(signed into law October 26, 2001).
"Wholly Owned Subsidiary": as to any Person, any other Person all of
the Capital Stock of which (other than directors' qualifying shares required by
law) is owned by such Person directly and/or through other Wholly Owned
Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
a Wholly Owned Subsidiary of Cedar Fair LP.
41
1.2. Other Definitional Provisions.(a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to any Group Member not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP, (ii) the words "include",
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation", (iii) the word "incur" shall be construed to mean incur, create,
issue, assume, become liable in respect of or suffer to exist (and the words
"incurred" and "incurrence" shall have correlative meanings), (iv) the words
"asset" and "property" shall be construed to have the same meaning and effect
and to refer to any and all tangible and intangible assets and properties,
including cash, Capital Stock, securities, revenues, accounts, leasehold
interests and contract rights, and (v) references to agreements or other
Contractual Obligations shall, unless otherwise specified, be deemed to refer to
such agreements or Contractual Obligations as amended, supplemented, restated or
otherwise modified from time to time (subject to any applicable restrictions
hereunder).
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
(e) Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP;
provided that, if either Cedar Fair LP notifies the Administrative Agent that it
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision, or if the Administrative Agent notifies Cedar
Fair LP that the Required Lenders request an amendment to any provision hereof
for such purpose, regardless of whether any such notice is given before or after
such change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
(f) Unless the context requires otherwise, for purposes of
interpreting the definitions herein and the provisions of Sections 7, 8 and 9,
references to amounts denominated in Dollars shall be deemed to refer to the
aggregate of, to the extent applicable to Cedar Fair LP and/or its Subsidiaries
in question, (i) Dollars, (ii) the Dollar Equivalent of Canadian Dollars and
(iii) the equivalent in Dollars of other foreign currencies.
1.3. Relationship with Original Credit Agreement. (a) This Agreement
amends and restates the provisions of the Original Credit Agreement and (i) all
of the terms and provisions of the Original Credit Agreement shall continue to
apply for the period from the
42
Original Closing Date to the Closing Date, including any determinations of
payment dates, interest rates, Events of Default or any amount that may be
payable to any Agent or any Original Lender (or their assignees or
replacements), and (ii) the obligations under the Original Credit Agreement
shall from and after the Closing Date continue to be owing in accordance with,
and subject to, the terms of this Agreement. All references in any Loan Document
to (i) the "Credit Agreement" shall be deemed to include references to this
Agreement and (ii) the "Lenders" or a "Lender" or the "Administrative Agent"
shall mean such terms as defined in this Agreement. As to all periods occurring
on or after the Closing Date, all of the terms and conditions set forth in the
Original Agreement shall be of no further force and effect, it being understood
that all obligations of each Loan Party under the Original Credit Agreement and
related Loan Documents shall be governed by this Agreement and the related Loan
Documents from and after the Closing Date.
(b) The parties hereto acknowledge and agree that all principal,
interest, fees, costs, reimbursable expenses and indemnification obligations
accruing or arising under or in connection with the Original Credit Agreement
which remain unpaid and outstanding as of the Closing Date shall be and remain
outstanding and payable as an obligation under this Agreement and the other Loan
Documents.
SECTION 2. AMOUNT AND TERMS OF TERM COMMITMENTS
2.1. Term Commitments. Prior to the Closing Date, each Original Term
Lender held an Original Term Loan under the Original Credit Agreement in a
principal amount equal to the amount set forth with respect to Original Term
Loans in such Original Term Lender's Conversion and Repayment Notice. Subject to
the terms and conditions hereof, (a) each Original Term Lender agrees that its
Original Term Loan shall be converted into a term loan to the U.S. Borrower in
Dollars (each, a "U.S. Term Loan") on the Closing Date in the amount specified
in such Original Term Lender's Conversion and Repayment Notice and that from and
after the Closing Date, such Original Term Lender shall be a U.S. Term Lender
with respect to such U.S. Term Loan and (b) each Canadian Term Lender severally
agrees to make a term loan to the Canadian Borrower in Dollars (each, a
"Canadian Term Loan") on the Closing Date in an amount not to exceed the amount
of the Canadian Term Commitment of such Lender, which amount shall be
distributed on the Closing Date as a return of capital by the Canadian Borrower
(indirectly through any applicable Subsidiary of the U.S. Borrower) to the U.S.
Borrower (which shall prepay a principal amount of the Original Term Loans in
the same amount). The U.S. Term Loans may from time to time be Eurodollar Loans
or Base Rate Loans, as determined by the U.S. Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 4.3. The Canadian Term
Loans may from time to time be Eurodollar Loans or Base Rate Loans, as
determined by the Canadian Borrower and notified to the Canadian Administrative
Agent in accordance with Sections 2.2 and 4.3.
2.2. Procedure for Term Loan Borrowing. (a) The U.S. Borrower shall
give the Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent prior to 10:00 A.M., New York City time, one
Business Day prior to the anticipated Closing Date) requesting that the Original
Term Lenders convert the U.S. Term Loans on the Closing Date and specifying the
amount to be converted. Upon receipt of such notice the Administrative Agent
shall promptly notify each Original Term Lender thereof.
43
(b) The Canadian Borrower shall give the Administrative Agent and the
Canadian Administrative Agent irrevocable notice (which notice must be received
by the Administrative Agent and the Canadian Administrative Agent prior to 10:00
A.M., Toronto time, one Business Day prior to the anticipated Closing Date)
requesting that the Canadian Term Lenders make the Canadian Term Loans on the
Closing Date and specifying the amount to be borrowed. The Canadian Term Loans
made on the Closing Date shall initially be Base Rate Loans and, unless
otherwise agreed by the Syndication Agent in its sole discretion, no Canadian
Term Loan may be converted into or continued as a Eurodollar Loan having an
Interest Period in excess of one month prior to the date that is 60 days after
the Closing Date. Upon receipt of such notice the Canadian Administrative Agent
shall promptly notify each Term Lender thereof. Not later than 12:00 Noon,
Toronto time, on the Closing Date each Canadian Term Lender shall make available
to the Canadian Administrative Agent at the Canadian Payment Office an amount in
immediately available funds equal to the Canadian Term Loan or Canadian Term
Loans to be made by such Lender. The Canadian Administrative Agent shall credit
the account of the Canadian Borrower on the books of such office of the Canadian
Administrative Agent with the aggregate of the amounts made available to the
Canadian Administrative Agent by the Canadian Term Lenders in immediately
available funds.
2.3. Repayment of Term Loans. (a) The U.S. Term Loan of each U.S. Term
Lender shall mature in 25 consecutive installments, commencing on September 30,
2006, each of which shall be in an amount equal to such Lender's U.S. Term
Credit Percentage multiplied by the amount set forth below opposite such
installment:
Installment Principal Amount
----------- ----------------
September 30, 2006 $3,687,500
December 31, 2006 $3,687,500
March 31, 2007 $3,687,500
June 30, 2007 $3,687,500
September 30, 2007 $3,687,500
December 31, 2007 $3,687,500
March 31, 2008 $3,687,500
June 30, 2008 $3,687,500
September 30, 2008 $3,687,500
December 31, 2008 $3,687,500
March 31, 2009 $3,687,500
June 30, 2009 $3,687,500
September 30, 2009 $3,687,500
December 31, 2009 $3,687,500
March 31, 2010 $3,687,500
June 30, 2010 $3,687,500
September 30, 2010 $3,687,500
December 31, 2010 $3,687,500
March 31, 2011 $3,687,500
June 30, 2011 $3,687,500
September 30, 2011 $3,687,500
December 31, 2011 $3,687,500
March 31, 2012 $3,687,500
44
June 30, 2012 $3,687,500
August 30, 2012 $1,386,500,000 or remainder
(b) The Canadian Term Loan of each Canadian Term Lender shall mature
in 21 consecutive installments, commencing on September 30, 2006, each of which
shall be in an amount equal to such Lender's Canadian Term Credit Percentage
multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
September 30, 2006 $675,000
December 31, 2006 $675,000
March 31, 2007 $675,000
June 30, 2007 $675,000
September 30, 2007 $675,000
December 31, 2007 $675,000
March 31, 2008 $675,000
June 30, 2008 $675,000
September 30, 2008 $675,000
December 31, 2008 $675,000
March 31, 2009 $675,000
June 30, 2009 $675,000
September 30, 2009 $675,000
December 31, 2009 $675,000
March 31, 2010 $675,000
June 30, 2010 $675,000
September 30, 2010 $675,000
December 31, 2010 $675,000
March 31, 2011 $675,000
June 30, 2011 $675,000
August 31, 2011 $256,500,000 or remainder
(or, notwithstanding anything to the contrary in
Section 4.8(d), in the case of the final
installment only, the next succeeding Business
Day if such day is not a Business Day)
SECTION 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS
3.1. Revolving Commitments. (a) Subject to the terms and conditions
hereof (including Section 7.12), each U.S. Revolving Lender severally agrees to
make revolving credit loans in Dollars ("U.S. Revolving Loans") to the U.S.
Borrower from time to time during the Revolving Commitment Period in an
aggregate principal amount at any one time outstanding which, when added to such
Lender's U.S. Revolving Credit Percentage of the sum of (i) the U.S. L/C
Obligations then outstanding and (ii) the aggregate principal amount of the U.S.
Swing Line Loans then outstanding, does not exceed the amount of such Lender's
U.S. Revolving Commitment then in effect. During the Revolving Commitment Period
the U.S. Borrower may
45
use the U.S. Revolving Commitments by borrowing, prepaying and reborrowing the
U.S. Revolving Loans in whole or in part, all in accordance with the terms and
conditions hereof. The U.S. Revolving Loans may be made only in Dollars and may
from time to time be Eurodollar Loans or Base Rate Loans, as determined by the
U.S. Borrower and notified to the Administrative Agent in accordance with
Sections 3.2 and 4.3; provided that no U.S. Revolving Loan shall be made as a
Eurodollar Loan after the day that is one month prior to the Revolving
Termination Date.
(b) Subject to the terms and conditions hereof (including Section
7.12), each Canadian Revolving Lender severally agrees to make revolving credit
loans in Dollars or Canadian Dollars ("Canadian Revolving Loans"), as specified
by the Canadian Borrower, to the Canadian Borrower from time to time during the
Revolving Commitment Period in an aggregate principal amount at any one time
outstanding which, when added to such Lender's Canadian Revolving Credit
Percentage of the sum of (i) the Canadian L/C Obligations then outstanding and
(ii) the aggregate principal amount of the Canadian Swing Line Loans then
outstanding, does not exceed the amount of such Lender's Canadian Revolving
Commitment then in effect (provided that in the case of any Canadian Revolving
Extensions of Credit made in Canadian Dollars, such amounts shall be valued at
the Dollar Equivalent of such Canadian Dollars as of the relevant date of
determination). During the Revolving Commitment Period the Canadian Borrower may
use the Canadian Revolving Commitments by borrowing, prepaying and reborrowing
the Canadian Revolving Loans in whole or in part, all in accordance with the
terms and conditions hereof. The Canadian Revolving Loans may be made from time
to time by way of (i) BA Loans or Canadian Prime Rate Loans, in Canadian Dollars
only or (ii) Eurodollar Loans or Base Rate Loans, in Dollars only, as determined
by the Canadian Borrower and notified to the Administrative Agent and the
Canadian Administrative Agent in accordance with Sections 3.2 and 4.3, provided
that no Canadian Revolving Loan shall be made as a BA Loan or a Eurodollar Loan
after the day that is one month prior to the Revolving Termination Date.
(c) The U.S. Borrower shall repay to the Administrative Agent, for the
ratable benefit of the U.S. Revolving Lenders, all outstanding U.S. Revolving
Loans, together with all accrued and unpaid interest thereon, on the Revolving
Termination Date. The Canadian Borrower shall repay to the Canadian
Administrative Agent, for the ratable benefit of the Canadian Revolving Lenders,
all outstanding Canadian Revolving Loans, together with all accrued and unpaid
interest thereon, on the Revolving Termination Date.
3.2. Procedure for Revolving Loan Borrowing. (a) The U.S. Borrower
may borrow under the U.S. Revolving Commitments during the Revolving Commitment
Period on any Business Day, provided that the U.S. Borrower shall give the
Administrative Agent an irrevocable Borrowing Notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, New York City time,
(a) three Business Days prior to the requested Borrowing Date, in the case of
Eurodollar Loans, or (b) one Business Day prior to the requested Borrowing Date,
in the case of Base Rate Loans) (provided that any such notice of a borrowing of
Base Rate Loans to finance payments required to be made pursuant to Section 3.5
may be given not later than 10:00 A.M., New York City time, on the date of the
proposed borrowing), specifying (i) the amount and Type of U.S. Revolving Loans
to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurodollar Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Period therefor. Each borrowing under
the U.S.
46
Revolving Commitments shall be in an amount equal to (x) in the case of Base
Rate Loans, $1,000,000 or a whole multiple thereof (or, if the then aggregate
Available U.S. Revolving Commitments are less than $1,000,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $5,000,000 or a whole multiple
of $1,000,000 in excess thereof; provided, that (x) the U.S. Swing Line Lender
may request, on behalf of the U.S. Borrower, borrowings under the U.S. Revolving
Commitments that are Base Rate Loans in other amounts pursuant to Section 3.4
and (y) borrowings of Base Rate Loans pursuant to Section 3.11 shall not be
subject to the foregoing minimum amounts. Upon receipt of any such notice from
the U.S. Borrower, the Administrative Agent shall promptly notify each U.S.
Revolving Lender thereof. Subject to the terms and conditions hereof, each U.S.
Revolving Lender will make the amount of its pro rata share of each borrowing
available to the Administrative Agent for the account of the U.S. Borrower at
the Funding Office prior to 12:00 Noon, New York City time, on the Borrowing
Date requested by the U.S. Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the U.S.
Borrower by the Administrative Agent wiring (pursuant to instructions thretofore
delivered to the Administrative Agent by the U.S. Borrower) the aggregate of the
amounts made available to the Administrative Agent by the U.S. Revolving Lenders
and in like funds as received by the Administrative Agent.
(b) The Canadian Borrower may borrow under the Canadian Revolving
Commitments during the Revolving Commitment Period on any Business Day, provided
that the Canadian Borrower shall give the Administrative Agent and the Canadian
Administrative Agent a Borrowing Notice (which notice must be received by the
Administrative Agent and the Canadian Administrative Agent prior to 12:00 Noon,
Toronto time, (a) three Business Days prior to the requested Borrowing Date, in
the case of Eurodollar Loans, (b) two Business Days prior to the requested
Borrowing, in the case of BA Loans, or (c) one Business Day prior to the
requested Borrowing Date, in the case of Base Rate Loans and Canadian Prime Rate
Loans) (provided that any such notice of a borrowing of Base Rate Loans or
Canadian Prime Rate Loans to finance payments required to be made pursuant to
Section 3.5 may be given not later than 9:00 A.M., Toronto time, on the date of
the proposed borrowing), specifying (i) the amount and Type of Canadian
Revolving Loans to be borrowed, (ii) the requested Borrowing Date and (iii) in
the case of Eurodollar Loans and BA Loans, the respective amounts of each such
Type of Loan and the respective lengths of the initial Interest Period therefor.
Any Canadian Revolving Loans made on the Closing Date shall initially be Base
Rate Loans or Canadian Prime Rate Loans and, unless otherwise agreed by the
Canadian Administrative Agent in its sole discretion, no Canadian Revolving Loan
may be made as, converted into or continued as a Eurodollar Loan or BA Loan
having an Interest Period in excess of one month prior to the date that is 60
days after the Closing Date. Each borrowing under the Canadian Revolving
Commitments shall be in an amount equal to (x) in the case of Base Rate Loans or
Canadian Prime Rate Loans, $1,000,000 or Cdn. $1,000,000, respectively, or a
whole multiple thereof (or, if the then aggregate Available Canadian Revolving
Commitments are less than $1,000,000 or the Dollar Equivalent at such time of
Cdn. $1,000,000, such lesser amount) and (y) in the case of Eurodollar Loans or
BA Loans, $1,000,000 or Cdn. $1,000,000, respectively, or a whole multiple of
$1,000,000 or Cdn. $1,000,000, respectively, in excess thereof; provided, that
(x) the Canadian Swing Line Lender may request, on behalf of the Canadian
Borrower, borrowings under the Canadian Revolving Commitments that are Base Rate
Loans or Canadian Prime Rate Loans in other amounts pursuant to Section 3.4 and
(y) borrowings of Base Rate Loans or Canadian Prime Rate Loans pursuant to
Section 3.11 shall not be subject to the foregoing minimum amounts. Upon receipt
47
of any such notice from the Canadian Borrower, the Canadian Administrative Agent
shall promptly notify each Canadian Revolving Lender thereof. Subject to the
terms and conditions hereof, each Canadian Revolving Lender will make the amount
of its pro rata share of each borrowing available to the Canadian Administrative
Agent for the account of the Canadian Borrower at the Canadian Payment Office
prior to 12:00 Noon, Toronto time, on the Borrowing Date requested by the
Canadian Borrower in funds immediately available to the Canadian Administrative
Agent. Such borrowing will then be made available to the Canadian Borrower by
the Canadian Administrative Agent wiring (pursuant to instructions theretofore
delivered to the Administrative Agent by Cedar Fair LP) the aggregate of the
amounts made available to the Canadian Administrative Agent by the Canadian
Revolving Lenders and in like funds as received by the Canadian Administrative
Agent.
(c) BA Loans under the Canadian Revolving Facility:
(i) Discount Rate. On each Borrowing Date on which Bankers'
Acceptances are to be accepted, the Canadian Administrative Agent
shall advise the Canadian Borrower and Cedar Fair LP as to the
Canadian Administrative Agent's determination of the applicable
Discount Rate for the Bankers' Acceptances, which Bankers'
Acceptances, subject to the terms and conditions of this Agreement,
shall be accepted by each Canadian Revolving Lender under the Canadian
Revolving Facility that is permitted by law to accept and purchase
Bankers' Acceptances.
(ii) Purchase. Each Canadian Revolving Lender shall purchase the
Bankers' Acceptances accepted by it at the applicable Discount Rate.
The relevant Canadian Revolving Lender shall provide to the Canadian
Administrative Agent on the Borrowing Date the Discount Proceeds less
the Acceptance Fee payable by the Canadian Borrower with respect to
the relevant Bankers' Acceptances.
(iii) Sale. Each Canadian Revolving Lender may from time to time
hold, sell, rediscount or otherwise dispose of any or all Bankers'
Acceptances accepted and purchased by it.
(iv) Power of Attorney for the Execution of Bankers' Acceptances.
To facilitate the issuance of Bankers' Acceptances, the Canadian
Borrower hereby appoints each Canadian Revolving Lender as its
attorney to sign and endorse on its behalf, in handwriting or by
facsimile or mechanical signature as and when deemed necessary by such
Canadian Revolving Lender, blank forms of Bankers' Acceptances. In
this respect, it is each Canadian Revolving Lender's responsibility to
maintain an adequate supply of blank forms of Bankers' Acceptances for
acceptance under this Agreement. The Canadian Borrower recognizes and
agrees that all Bankers' Acceptances signed and/or endorsed on its
behalf by a Canadian Revolving Lender shall bind the Canadian Borrower
as fully and effectually as if signed in the handwriting of and duly
issued by the proper signing officers of the Canadian Borrower. Each
Canadian Revolving Lender is hereby authorized to issue such Bankers'
Acceptance endorsed in blank in such face amounts as may be determined
by such Canadian Revolving Lender;
48
provided that the aggregate amount thereof is equal to the aggregate
amount of Bankers' Acceptances required to be accepted and purchased
by such Canadian Revolving Lender. No Canadian Revolving Lender shall
be liable for any damage, loss or other claim arising by reason of any
loss or improper use of any such instrument except to the extent
caused by the gross negligence or willful misconduct of such Lender or
its officers, employees, agents or representatives. Each Canadian
Revolving Lender shall maintain a record with respect to Bankers'
Acceptances held by it in blank hereunder, voided by it for any
reason, accepted and purchased by it hereunder, and cancelled at their
respective maturities. Each Canadian Revolving Lender agrees to
provide such records to the Canadian Borrower at the Canadian
Borrower's expense upon request.
(v) Execution. Drafts drawn by the Canadian Borrower to be
accepted as Bankers' Acceptances shall be signed by a duly authorized
officer or officers of the Canadian Borrower or by its
attorneys-in-fact, including attorneys-in-fact appointed pursuant to
this Section 3.2. Notwithstanding that any Person whose signature
appears on any Bankers' Acceptance may no longer be an authorized
signatory for the Canadian Borrower at the time of issuance of a
Bankers' Acceptance, that signature shall nevertheless be valid and
sufficient for all purposes as if the authority had remained in force
at the time of issuance and any Bankers' Acceptance so signed shall be
binding on the Canadian Borrower.
(vi) Issuance. The Canadian Administrative Agent, promptly
following receipt of a Borrowing Notice for a BA Loan, shall advise
the Canadian Revolving Lenders of the notice and shall advise each
such Lender of the face amount of Bankers' Acceptances to be accepted
by it and the applicable Interest Period (which shall be identical for
all Canadian Revolving Lenders in respect of such BA Loan). The
aggregate face amount of Bankers' Acceptances to be accepted by a
Canadian Revolving Lender shall be determined by the Canadian
Administrative Agent by reference to such Lender's Canadian Revolving
Credit Percentage of the BA Loan, except that, if the face amount of a
Bankers' Acceptance which would otherwise be accepted by a Canadian
Revolving Lender would not be Cdn. $100,000 or a whole multiple
thereof, the face amount shall be increased or reduced by such Agent
in its sole discretion to Cdn. $100,000, or the nearest whole multiple
of that amount, as appropriate; provided that after such issuance, no
Canadian Revolving Lender shall have aggregate outstanding Canadian
Revolving Extensions of Credit in excess of its Canadian Revolving
Commitment.
(vii) Waiver of Presentment and Other Conditions. The Canadian
Borrower waives presentment for payment and any other defense to
payment of any amounts due to a Canadian Revolving Lender in respect
of a Bankers' Acceptance accepted and purchased by it pursuant to this
Agreement which might exist solely by reason of the Bankers'
Acceptance being held, at the maturity thereof, by the Canadian
Revolving Lender in its own right and the Canadian Borrower agrees not
to claim any days of grace if such Canadian Revolving
49
Lender as holder sues the Canadian Borrower on the Bankers' Acceptance
for payment of the amount payable by the Canadian Borrower thereunder.
(viii) BA Equivalent Loans by Non BA Lenders. Whenever the
Canadian Borrower requests a Canadian Loan under this Agreement by way
of Bankers' Acceptances, each Non BA Lender shall, in lieu of
accepting a Bankers' Acceptance, make a BA Equivalent Loan in an
amount equal to the Non BA Lender's Canadian Revolving Credit
Percentage of the Canadian Revolving Loan.
(ix) Terms Applicable to Discount Notes. As set out in the
definition of Bankers' Acceptances, that term includes Discount Notes
and all terms of this Agreement applicable to BA Loans shall apply
equally to Discount Notes evidencing BA Equivalent Loans with such
changes as may in the context be necessary. For greater certainty: (a)
the term of a Discount Note shall be the same as the Interest Period
for Bankers' Acceptances accepted and purchased on the same Borrowing
Date in respect of the same Canadian Revolving Loan; (b) an Acceptance
Fee will be payable in respect of a Discount Note and shall be
calculated at the same rate and in the same manner as the Acceptance
Fee in respect of a Bankers' Acceptance; and (c) the Discount Rate
applicable to a Discount Note shall be the Discount Rate applicable to
Bankers' Acceptances accepted by a Schedule II Lender on the same
Borrowing Date, as the case may be, in respect of the same Canadian
Revolving Loan.
(x) Depository Bills and Notes Act. At the option of any Canadian
Revolving Lender, Bankers' Acceptances under this Agreement to be
accepted by such Canadian Revolving Lender may be issued in the form
of depository bills for deposit with The Canadian Depository for
Securities Limited pursuant to the Depository Bills and Notes Act
(Canada). All depository bills so issued shall be governed by the
provisions of this Section 3.2.
(xi) Prepayments and Mandatory Payments. If at any time any
Bankers' Acceptances are to be paid prior to their maturity, the
Canadian Borrower shall be required to deposit the amount of such
prepayment in an interest-bearing cash collateral account until the
date of maturity of those Bankers' Acceptances, with interest earned
thereon at the prevailing rates for deposits of comparable amount and
term, being for the credit of the Canadian Borrower. The cash
collateral account shall be under the sole control of the Canadian
Administrative Agent. Except as contemplated by this Section 3.2,
neither the Canadian Borrower nor any Person claiming on behalf of the
Canadian Borrower shall have any right to any of the cash in the cash
collateral account. The Canadian Administrative Agent shall apply the
cash held in the cash collateral account to the face amount of those
Bankers' Acceptances at maturity whereupon any cash remaining in the
cash collateral account shall be released by the Canadian
Administrative Agent to the Canadian Borrower.
(xii) Market for Bankers' Acceptances. If at any time or from
time to time there no longer exists a market for Bankers' Acceptances,
the relevant
50
Canadian Revolving Lenders shall so advise the Canadian Administrative
Agent and the Administrative Agent and any such Canadian Revolving
Lenders shall not be obliged to accept drafts of the Canadian Borrower
presented to such Canadian Revolving Lenders pursuant to the
provisions of this Agreement. In such event, the Canadian Borrower's
option to request BA Loans shall thereupon be suspended upon notice by
the Canadian Administrative Agent to the Canadian Borrower, until such
time as the Canadian Administrative Agent has determined that the
circumstances having given rise to such suspension no longer exist, in
respect of which determination the Canadian Administrative Agent shall
advise the Canadian Borrower within a reasonable period of time after
making such determination.
3.3. Swing Line Sub-Commitment. (a) Subject to the terms and
conditions hereof, the U.S. Swing Line Lender agrees to make a portion of the
credit otherwise available to the U.S. Borrower under the U.S. Revolving
Commitments from time to time during the Revolving Commitment Period by making
swing line loans ("U.S. Swing Line Loans") to the U.S. Borrower; provided that
(i) the aggregate principal amount of U.S. Swing Line Loans outstanding at any
time shall not exceed the U.S. Swing Line Sub-Commitment then in effect
(notwithstanding that the U.S. Swing Line Loans outstanding at any time, when
aggregated with the U.S. Swing Line Lender's other outstanding U.S. Revolving
Loans hereunder, may exceed the U.S. Swing Line Sub-Commitment then in effect)
and (ii) the U.S. Borrower shall not request, and the U.S. Swing Line Lender
shall not make, any U.S. Swing Line Loan if, after giving effect to the making
of such U.S. Swing Line Loan, the aggregate amount of the Available U.S.
Revolving Commitments would be less than zero. During the Revolving Commitment
Period, the U.S. Borrower may use the U.S. Swing Line Sub-Commitment by
borrowing, repaying and reborrowing U.S. Swing Line Loans, all in accordance
with the terms and conditions hereof. The U.S. Borrower shall pay interest on
the unpaid principal amount of each U.S. Swing Line Loan outstanding from time
to time from the date thereof until paid at the Derived U.S. Swing Line Loan
Rate applicable to such U.S. Swing Line Loan. Interest on each U.S. Swing Line
Loan shall be payable on the Swing Line Loan Maturity Date applicable thereto.
Each U.S. Swing Line Loan shall bear interest for a minimum of one day.
(b) The U.S. Borrower shall repay all outstanding U.S. Swing Line
Loans on the Swing Line Loan Maturity Date applicable to such U.S. Swing Line
Loan.
(c) Subject to the terms and conditions hereof, the Canadian Swing
Line Lender agrees to make a portion of the credit otherwise available to the
Canadian Borrower under the Canadian Revolving Commitments from time to time
during the Revolving Commitment Period by making swing line loans ("Canadian
Swing Line Loans") to the Canadian Borrower; provided that (i) the aggregate
principal amount of Canadian Swing Line Loans outstanding at any time shall not
exceed the Canadian Swing Line Sub-Commitment then in effect (notwithstanding
that the Canadian Swing Line Loans outstanding at any time, when aggregated with
the Canadian Swing Line Lender's other outstanding Canadian Revolving Loans
hereunder, may exceed the Canadian Swing Line Sub-Commitment then in effect) and
(ii) the Canadian Borrower shall not request, and the Canadian Swing Line Lender
shall not make, any Canadian Swing Line Loan if, after giving effect to the
making of such Canadian Swing Line Loan, the aggregate amount of the Available
Canadian Revolving Commitments would be less than zero (in the case of clauses
51
(i) and (ii) above, any Canadian Swing Line Loans made in Canadian Dollars to be
valued at the Dollar Equivalent of such Canadian Dollars as of the relevant date
of determination). During the Revolving Commitment Period, the Canadian Borrower
may use the Canadian Swing Line Sub-Commitment by borrowing, repaying and
reborrowing Canadian Swing Line Loans, all in accordance with the terms and
conditions hereof. The Canadian Borrower shall pay interest on the unpaid
principal amount of each Canadian Swing Line Loan outstanding from time to time
from the date thereof until paid at the Canadian Prime Rate (for Canadian Swing
Line Loans denominated in Canadian Dollars) or the U.S. Base Rate in Canada (for
Canadian Swing Line Loans denominated in Dollars), as applicable, plus the
Applicable Margin. Interest on each Canadian Swing Line Loan shall be payable on
the Swing Line Loan Maturity Date applicable thereto. Canadian Swing Line Loans
shall be Canadian Prime Rate Loans or Base Rate Loans only.
(d) The Canadian Borrower shall repay all outstanding Canadian Swing
Line Loans on the Swing Line Loan Maturity Date applicable to such Canadian
Swing Line Loan.
3.4. Procedure for Swing Line Borrowing; Refunding of Swing Line
Loans. (a) Whenever the U.S. Borrower desires that the U.S. Swing Line Lender
make U.S. Swing Line Loans the U.S. Borrower shall give the U.S. Swing Line
Lender irrevocable telephonic notice confirmed promptly in writing with a copy
to the Administrative Agent (which telephonic notice must be received by the
U.S. Swing Line Lender not later than 1:00 P.M., New York City time, on the
proposed Borrowing Date), specifying (i) the amount to be borrowed and (ii) the
requested Borrowing Date (which shall be a Business Day during the Revolving
Commitment Period). Each borrowing under the U.S. Swing Line Sub-Commitment
shall be in an amount equal to $500,000 or a whole multiple of $100,000 in
excess thereof. Not later than 3:00 P.M., New York City time, on the Borrowing
Date specified in a notice in respect of U.S. Swing Line Loans, the U.S. Swing
Line Lender shall make available to the Administrative Agent at the Funding
Office an amount in immediately available funds equal to the amount of the U.S.
Swing Line Loan to be made by the U.S. Swing Line Lender. The Administrative
Agent shall make the proceeds of such U.S. Swing Line Loan available to the U.S.
Borrower on such Borrowing Date by depositing such proceeds in an account of the
U.S. Borrower with the Administrative Agent on such Borrowing Date in
immediately available funds.
(b) The U.S. Swing Line Lender, at any time and from time to time in
its sole and absolute discretion may (and on the Swing Line Loan Maturity Date,
shall), on behalf of the U.S. Borrower (which hereby irrevocably directs the
U.S. Swing Line Lender to act on its behalf), on one Business Day's notice given
by the U.S. Swing Line Lender to the Administrative Agent no later than 12:00
Noon, New York City time, request each U.S. Revolving Lender to make, and each
U.S. Revolving Lender hereby agrees to make, a U.S. Revolving Loan (which shall
initially be a Base Rate Loan), in an amount equal to such U.S. Revolving
Lender's U.S. Revolving Credit Percentage of the aggregate amount of the U.S.
Swing Line Loans (the "U.S. Refunded Swing Line Loans") outstanding on the date
of such notice, to repay the U.S. Swing Line Lender. Each U.S. Revolving Lender
shall make the amount of such U.S. Revolving Loan available to the
Administrative Agent at the Funding Office in immediately available funds, not
later than 10:00 A.M., New York City time, one Business Day after the date of
such notice. The proceeds of such U.S. Revolving Loans shall be immediately made
available by the Administrative Agent to the U.S. Swing Line Lender for
application by the U.S. Swing Line Lender to the repayment
52
of the U.S. Refunded Swing Line Loans. The U.S. Borrower and any Group Member
which has guaranteed the U.S. Borrower's Obligations irrevocably authorize the
U.S. Swing Line Lender to charge such Person's accounts with the Administrative
Agent (up to the amount available in each such account) in order to immediately
pay the amount of such U.S. Refunded Swing Line Loans to the extent amounts
received from the U.S. Revolving Lenders are not sufficient to repay in full
such U.S. Refunded Swing Line Loans.
(c) If prior to the time a U.S. Revolving Loan would have otherwise
been made pursuant to Section 3.4(b), one of the events described in Section
9(f) shall have occurred and be continuing with respect to the U.S. Borrower or
if for any other reason, as determined by the U.S. Swing Line Lender in its sole
discretion, U.S. Revolving Loans may not be made as contemplated by Section
3.4(b), each U.S. Revolving Lender shall, on the date such U.S. Revolving Loan
was to have been made pursuant to the notice referred to in Section 3.4(b) (the
"U.S. Refunding Date"), purchase for cash an undivided participating interest in
the then outstanding U.S. Swing Line Loans by paying to the U.S. Swing Line
Lender an amount (the "U.S. Swing Line Participation Amount") equal to (i) such
U.S. Revolving Lender's U.S. Revolving Credit Percentage times (ii) the sum of
the aggregate principal amount of U.S. Swing Line Loans then outstanding that
were to have been repaid with such U.S. Revolving Loans.
(d) Whenever, at any time after the U.S. Swing Line Lender has
received from any U.S. Revolving Lender such U.S. Lender's U.S. Swing Line
Participation Amount, the U.S. Swing Line Lender receives any payment on account
of the U.S. Swing Line Loans, the U.S. Swing Line Lender will distribute to such
Lender a pro rata portion thereof based upon its U.S. Swing Line Participation
Amount (appropriately adjusted, in the case of interest payments, to reflect the
period of time during which such Lender's participating interest was outstanding
and funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
pay the principal of and interest on all U.S. Swing Line Loans then due);
provided, however, that in the event that such payment received by the U.S.
Swing Line Lender is required to be returned, such U.S. Revolving Lender will
return to the U.S. Swing Line Lender any portion thereof previously distributed
to it by the U.S. Swing Line Lender.
(e) Each U.S. Revolving Lender's obligation to make the Loans referred
to in Section 3.4(b) and to purchase participating interests pursuant to Section
3.4(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including (i) any setoff, counterclaim, recoupment, defense or
other right that such U.S. Revolving Lender or the U.S. Borrower may have
against the U.S. Swing Line Lender, the U.S. Borrower or any other Person for
any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default or the failure to satisfy any of the other conditions specified
in Section 6; (iii) any adverse change in the condition (financial or otherwise)
of the U.S. Borrower or any other Loan Party; (iv) any breach of this Agreement
or any other Loan Document by the U.S. Borrower, any other Loan Party or any
other Revolving Lender; or (v) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing.
(f) The Canadian Borrower may borrow under the Canadian Swing Line
Sub-Commitment on any Business Day during the Revolving Commitment Period,
provided, the Canadian Borrower shall give the Canadian Swing Line Lender
irrevocable written notice (which
53
written notice must be received by the Canadian Swing Line Lender not later than
10:00 A.M., Toronto time, on the proposed Borrowing Date), specifying (i) the
amount to be borrowed and (ii) the requested Borrowing Date. Each borrowing
under the Canadian Swing Line Sub-Commitment shall be in an amount equal to
$500,000 or Cdn. $500,000 or a whole multiple of $100,000 or Cdn. $100,000 in
excess thereof. Not later than 3:00 P.M., Toronto time, on the Borrowing Date
specified in the borrowing notice in respect of any Canadian Swing Line Loan,
the Canadian Swing Line Lender shall make available to the Canadian
Administrative Agent at the Canadian Payment Office an amount in immediately
available funds equal to the amount of such Canadian Swing Line Loan. The
Canadian Administrative Agent shall make the proceeds of such Canadian Swing
Line Loan available to the Canadian Borrower on such Borrowing Date by
depositing such proceeds in an account of the Canadian Borrower with a financial
institution designated by the Canadian Borrower in immediately available funds.
(g) The Canadian Swing Line Lender, at any time and from time to time
in its sole and absolute discretion may (and on the Swing Line Loan Maturity
Date, shall), on behalf of the Canadian Borrower (which hereby irrevocably
directs the Canadian Swing Line Lender to act on its behalf), on one Business
Day's notice given by the Canadian Swing Line Lender to the Canadian
Administrative Agent no later than 12:00 Noon, Toronto time, request each
Canadian Revolving Lender to make, and each Canadian Revolving Lender hereby
agrees to make, a Canadian Revolving Loan (which shall initially be a Canadian
Prime Rate Loan or a Base Rate Loan), in an amount equal to such Canadian
Revolving Lender's Canadian Revolving Credit Percentage of the aggregate amount
of the Canadian Swing Line Loans (the "Canadian Refunded Swing Line Loans")
outstanding on the date of such notice, to repay the Canadian Swing Line Lender.
Each Canadian Revolving Lender shall make the amount of such Canadian Revolving
Loan available to the Canadian Administrative Agent at the Canadian Payment
Office in immediately available funds, not later than 10:00 A.M., Toronto time,
one Business Day after the date of such notice. The proceeds of such Canadian
Revolving Loans shall be made immediately available by the Canadian
Administrative Agent to the Canadian Swing Line Lender for application by the
Canadian Swing Line Lender to the repayment of the Canadian Refunded Swing Line
Loans. The Canadian Borrower and any Group Member which has guaranteed the
Canadian Borrower's Obligations irrevocably authorizes the Canadian Swing Line
Lender to charge such Person's accounts with the Canadian Administrative Agent
or any of its Affiliates (up to the amount available in each such account) in
order to immediately pay the amount of such Canadian Refunded Swing Line Loans
to the extent amounts received from the Canadian Revolving Lenders are not
sufficient to repay in full such Canadian Refunded Swing Line Loans.
(h) If prior to the time a Canadian Revolving Loan would have
otherwise been made pursuant to Section 3.4(g), one of the events described in
Section 9(f) shall have occurred and be continuing with respect to either
Borrower, or if for any other reason, as determined by the Canadian Swing Line
Lender in its sole discretion, Canadian Revolving Loans may not be made as
contemplated by Section 3.4(g), each Canadian Revolving Lender shall, on the
date such Canadian Revolving Loan was to have been made pursuant to the notice
referred to in Section 3.4(g) (the "Canadian Refunding Date"), purchase for cash
an undivided participating interest in the then outstanding Canadian Swing Line
Loans by paying to the Canadian Swing Line Lender an amount (the "Canadian Swing
Line Participation Amount") equal to (i) such Canadian Revolving Lender's
Canadian Revolving Credit Percentage times (ii) the sum of the
54
aggregate principal amount of Canadian Swing Line Loans then outstanding which
were to have been repaid with such Canadian Revolving Loans.
(i) Whenever, at any time after the Canadian Swing Line Lender has
received from any Canadian Revolving Lender such Lender's Canadian Swing Line
Participation Amount, the Canadian Swing Line Lender receives any payment on
account of the Canadian Swing Line Loans, the Canadian Swing Line Lender will
distribute to such Lender a pro rata portion thereof based upon its Canadian
Swing Line Participation Amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded and, in the case of principal and interest
payments, to reflect such Lender's pro rata portion of such payment if such
payment is not sufficient to pay the principal of and interest on all Canadian
Swing Line Loans then due); provided, however, that in the event that such
payment received by the Canadian Swing Line Lender is required to be returned,
such Canadian Revolving Lender will return to the Canadian Swing Line Lender any
portion thereof previously distributed to it by the Canadian Swing Line Lender.
(j) Each Canadian Revolving Lender's obligation to make the Loans
referred to in Section 3.4(g) and to purchase participating interests pursuant
to Section 3.4(h) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Canadian Revolving
Lender or the Canadian Borrower may have against the Canadian Swing Line Lender,
the Canadian Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 6; (iii) any adverse
change in the condition (financial or otherwise) of the Canadian Borrower or any
other Loan Party; (iv) any breach of this Agreement or any other Loan Document
by the Canadian Borrower, any other Loan Party, or any other Canadian Revolving
Lender; or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing.
3.5. Commitment Fees, etc. (a) (i) The U.S. Borrower agrees to pay to
the Administrative Agent for the account of each U.S. Revolving Lender a
commitment fee for the period from and including the Original Closing Date to
the last day of the Revolving Commitment Period computed at the Commitment Fee
Rate on the average daily amount of the Available U.S. Revolving Commitment of
such U.S. Revolving Lender, and (ii) the Canadian Borrower agrees to pay to the
Canadian Administrative Agent for the account of each Canadian Revolving Lender
a commitment fee for the period from and including the Closing Date to the last
day of the Revolving Commitment Period, computed at the Commitment Fee Rate on
the average daily amount of the Available Canadian Revolving Commitment of such
Canadian Revolving Lender, in each case, during the period for which payment is
made, payable quarterly in arrears on the last day of each March, June,
September and December and on the Revolving Termination Date, commencing on the
first of such dates to occur after the date hereof.
(b) (i) The U.S. Borrower agrees to pay to the Administrative Agent
the fees in the amounts and on the dates previously agreed to in writing by the
U.S. Borrower and the Administrative Agent and (ii) the Canadian Borrower agrees
to pay to the Canadian
55
Administrative Agent the fees in the amounts and on the dates previously agreed
to in writing by the Canadian Borrower and the Canadian Administrative Agent.
(c) The U.S. Borrower agrees to pay to the Lead Arrangers the fees in
the amounts and on the dates previously agreed to in writing by Cedar Fair LP
and the Lead Arrangers.
3.6. Reduction or Termination of Revolving Commitments. The U.S.
Borrower shall have the right, upon not less than three Business Days' notice to
the Administrative Agent, to terminate all or any portion of the U.S. Revolving
Commitments or, from time to time, to reduce the amount of the U.S. Revolving
Commitments; provided that no such termination or reduction of U.S. Revolving
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the U.S. Revolving Loans and U.S. Swing Line Loans made on the
effective date thereof, the U.S. Revolving Extensions of Credit of all U.S.
Revolving Lenders would exceed the U.S. Revolving Commitments of all U.S.
Revolving Lenders. The Canadian Borrower shall have the right, upon not less
than three Business Days' notice to the Administrative Agent and the Canadian
Administrative Agent, to terminate all or any portion of the Canadian Revolving
Commitments or, from time to time, to reduce the amount of the Canadian
Revolving Commitments; provided that no such termination or reduction of
Canadian Revolving Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Canadian Revolving Loans and Canadian
Swing Line Loans made on the effective date thereof, the Canadian Revolving
Extensions of Credit of all Canadian Revolving Lenders would exceed the Canadian
Revolving Commitments of all Canadian Revolving Lenders (provided that in the
case of any Canadian Revolving Extensions of Credit made in Canadian Dollars,
such amounts shall be valued at the Dollar Equivalent of such Canadian Dollars
as of the relevant date of determination). Any such reduction shall be in an
amount equal to $1,000,000, or a whole multiple thereof, and shall reduce
permanently the applicable Revolving Commitments then in effect.
3.7. L/C Commitment. (a) Subject to the terms and conditions
hereof, each U.S. Issuing Lender, in reliance on the agreements of the U.S. L/C
Participants set forth in Section 3.10(a), agrees to issue documentary or
standby letters of credit ("U.S. Letters of Credit") for the account of the U.S.
Borrower on any Business Day during the Revolving Commitment Period in such form
as may be approved from time to time by such U.S. Issuing Lender; provided, that
no U.S. Issuing Lender shall have any obligation to issue any U.S. Letter of
Credit if, after giving effect to such issuance, (i) the U.S. L/C Obligations
would exceed the U.S. L/C Sub-Commitment or (ii) the aggregate amount of the
Available U.S. Revolving Commitments of all U.S. Revolving Lenders would be less
than zero. On the Closing Date, the Existing Letters of Credit will
automatically, without any action on the part of any Person, be deemed to be
U.S. Letters of Credit issued hereunder for the account of the U.S. Borrower for
all purposes of this Agreement and the other Loan Documents. Each U.S. Letter of
Credit shall (i) be denominated in Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the Revolving Termination Date; provided
that any U.S. Letter of Credit with a one-year term may provide for the renewal
thereof for additional one-year periods (which shall in no event extend beyond
the date referred to in clause (y) above).
56
(b) Subject to the terms and conditions hereof, each Canadian Issuing
Lender, in reliance on the agreements of the Canadian L/C Participants set forth
in Section 3.10(d), agrees to issue documentary or standby letters of credit
("Canadian Letters of Credit") for the account of the Canadian Borrower on any
Business Day during the Revolving Commitment Period in such form as may be
approved from time to time by such Canadian Issuing Lender; provided, that no
Canadian Issuing Lender shall have any obligation to issue any Canadian Letter
of Credit if, after giving effect to such issuance, (i) the Canadian L/C
Obligations would exceed the Canadian L/C Sub-Commitment or (ii) the aggregate
amount of the Available Canadian Revolving Commitments of all Canadian Revolving
Lenders would be less than zero. Each Canadian Letter of Credit shall (i) be
denominated in Canadian Dollars or Dollars and (ii) expire no later than the
earlier of (x) the first anniversary of its date of issuance and (y) the date
which is five Business Days prior to the Revolving Termination Date; provided
that any Canadian Letter of Credit with a one-year term may provide for the
renewal thereof for additional one-year periods (which shall in no event extend
beyond the date referred to in clause (y) above).
(c) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.8. Procedure for Issuance of Letter of Credit. (a) The U.S. Borrower
may from time to time request that the U.S. Issuing Lender issue a U.S. Letter
of Credit by delivering to the U.S. Issuing Lender, with a copy to the
Administrative Agent, at their addresses for notices specified herein, an
Application therefor, completed to the satisfaction of the U.S. Issuing Lender,
and such other certificates, documents and other papers and information as the
U.S. Issuing Lender may request. Upon receipt of any Application, the U.S.
Issuing Lender will notify the Administrative Agent of the amount, the
beneficiary and the requested expiration of the requested U.S. Letter of Credit,
and upon receipt of confirmation from the Administrative Agent that after giving
effect to the requested issuance, the Available U.S. Revolving Commitments would
not be less than zero, the U.S. Issuing Lender will process such Application and
the certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the U.S. Letter of Credit requested thereby (but in no event
shall the U.S. Issuing Lender be required to issue any U.S. Letter of Credit
earlier than three Business Days after its receipt of the Application therefor
and all such other certificates, documents and other papers and information
relating thereto) by issuing the original of such U.S. Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the U.S. Issuing Lender
and the U.S. Borrower. The U.S. Issuing Lender shall furnish a copy of such U.S.
Letter of Credit to the U.S. Borrower (with a copy to the Administrative Agent)
promptly following the issuance thereof. The U.S. Issuing Lender shall promptly
furnish to the Administrative Agent, which shall in turn promptly furnish to the
U.S. Revolving Lenders, notice of the issuance of each U.S. Letter of Credit
(including the amount thereof).
(b) The Canadian Borrower may from time to time request that the
Canadian Issuing Lender issue a Canadian Letter of Credit by delivering to the
Canadian Issuing Lender, with a copy to the Administrative Agent and the
Canadian Administrative Agent, at their addresses for notices specified herein,
an Application therefor, completed to the reasonable satisfaction of the
Canadian Issuing Lender, and such other certificates, documents and other
57
papers and information as the Canadian Issuing Lender may reasonably request.
Upon receipt of any such Application, the Canadian Issuing Lender will notify
the Canadian Administrative Agent of the amount, the beneficiary and the
requested expiration of the requested Canadian Letter of Credit, and upon
receipt of confirmation from the Canadian Administrative Agent that after giving
effect to the requested issuance, the Available Canadian Revolving Commitments
would not be less than zero, the Canadian Issuing Lender will process such
Application and the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its customary
procedures and shall promptly issue the Canadian Letter of Credit requested
thereby by issuing the original of such Canadian Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by the Canadian Issuing
Lender and the Canadian Borrower (but in no event shall the Canadian Issuing
Lender be required to issue any Letter of Credit earlier than three Business
Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto).
Promptly after issuance by the Canadian Issuing Lender of a Canadian Letter of
Credit, the Canadian Issuing Lender shall furnish a copy of such Letter of
Credit to the Canadian Borrower, the Administrative Agent and the Canadian
Administrative Agent. The Canadian Issuing Lender shall promptly furnish to the
Administrative Agent and the Canadian Administrative Agent, which the Canadian
Administrative Agent shall in turn promptly furnish to the Canadian Revolving
Lenders, notice of the issuance of each Canadian Letter of Credit (including the
amount thereof).
3.9. Fees and Other Charges. (a) (i) The U.S. Borrower will pay a fee
on the aggregate drawable amount of all outstanding U.S. Letters of Credit at a
per annum rate equal to the Applicable Margin with respect to Eurodollar Loans
under the U.S. Revolving Facility, shared ratably among the U.S. Revolving
Lenders in accordance with their respective U.S. Revolving Credit Percentages,
and (ii) the Canadian Borrower will pay a fee on the aggregate drawable amount
of all outstanding Canadian Letters of Credit at a per annum rate equal to the
Applicable Margin with respect to Eurodollar Loans under the Canadian Revolving
Facility, shared ratably among the Canadian Revolving Lenders in accordance with
their respective Canadian Revolving Credit Percentages, and, in the case of each
of clauses (i) and (ii), payable quarterly in arrears on each L/C Fee Payment
Date after the applicable issuance date. In addition, the U.S. Borrower and the
Canadian Borrower, respectively, shall pay to the U.S. Issuing Lender and the
Canadian Issuing Lender, respectively, for its own account a fronting fee on the
undrawn and unexpired amount of each Letter of Credit as agreed by the
applicable Borrower and the applicable Issuing Lender, payable quarterly in
arrears on each L/C Fee Payment Date after the issuance date of a given Letter
of Credit.
(b) In addition to the foregoing fees, the U.S. Borrower and the
Canadian Borrower, respectively, shall pay or reimburse the U.S. Issuing Lender
and the Canadian Issuing Lender, respectively, for such normal and customary
costs and expenses as are incurred or charged by the applicable Issuing Lender
in issuing, negotiating, effecting payment under, amending or otherwise
administering any Letter of Credit.
3.10. L/C Participations. (a) The U.S. Issuing Lender irrevocably
agrees to grant and hereby grants to each U.S. L/C Participant, and, to induce
the U.S. Issuing Lender to issue U.S. Letters of Credit hereunder, each U.S. L/C
Participant irrevocably agrees to accept and purchase and hereby accepts and
purchases from the U.S. Issuing Lender, on the terms and
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conditions set forth below, for such U.S. L/C Participant's own account and risk
an undivided interest equal to such U.S. L/C Participant's U.S. Revolving Credit
Percentage in the U.S. Issuing Lender's obligations and rights under and in
respect of each U.S. Letter of Credit issued hereunder and the amount of each
draft paid by the U.S. Issuing Lender thereunder. Each U.S. L/C Participant
unconditionally and irrevocably agrees with the U.S. Issuing Lender that, if a
draft is paid under any U.S. Letter of Credit for which the U.S. Issuing Lender
is not reimbursed in full by the U.S. Borrower in accordance with the terms of
this Agreement, such U.S. L/C Participant shall pay to the Administrative Agent
upon demand of the U.S. Issuing Lender an amount equal to such U.S. L/C
Participant's U.S. Revolving Credit Percentage of the amount of such draft, or
any part thereof, that is not so reimbursed. The Administrative Agent shall
promptly forward such amounts to the U.S. Issuing Lender.
(b) If any amount required to be paid by any U.S. L/C Participant to
the Administrative Agent for the account of the U.S. Issuing Lender pursuant to
Section 3.10(a) in respect of any unreimbursed portion of any payment made by
the U.S. Issuing Lender under any U.S. Letter of Credit is paid to the
Administrative Agent for the account of the U.S. Issuing Lender within three
Business Days after the date such payment is due, such U.S. L/C Participant
shall pay to the Administrative Agent for the account of the U.S. Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Effective Rate during the period from and including
the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any U.S.
L/C Participant pursuant to Section 3.10(a) is not made available to the
Administrative Agent for the account of the U.S. Issuing Lender by such U.S. L/C
Participant within three Business Days after the date such payment is due, the
U.S. Issuing Lender shall be entitled to recover from such U.S. L/C Participant,
on demand, such amount with interest thereon calculated from such due date at
the rate per annum applicable to Base Rate Loans under the U.S. Revolving
Facility. A certificate of the U.S. Issuing Lender submitted to any U.S. L/C
Participant with respect to any amounts owing under this Section shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the U.S. Issuing Lender has made
payment under any U.S. Letter of Credit and has received from any U.S. L/C
Participant its pro rata share of such payment in accordance with Section
3.10(a), the Administrative Agent or the U.S. Issuing Lender receives any
payment related to such U.S. Letter of Credit (whether directly from the U.S.
Borrower or otherwise, including proceeds of collateral applied thereto by the
U.S. Issuing Lender), or any payment of interest on account thereof, the
Administrative Agent or the U.S. Issuing Lender, as the case may be, will
distribute to such U.S. L/C Participant its pro rata share thereof; provided,
however, that in the event that any such payment received by the Administrative
Agent or the U.S. Issuing Lender, as the case may be, shall be required to be
returned by the Administrative Agent or the U.S. Issuing Lender, such U.S. L/C
Participant shall return to the Administrative Agent for the account of the U.S.
Issuing Lender the portion thereof previously distributed to it by the
Administrative Agent or the U.S. Issuing Lender, as the case may be.
(d) The Canadian Issuing Lender irrevocably agrees to grant and hereby
grants to each Canadian L/C Participant, and, to induce the Canadian Issuing
Lender to issue Canadian
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Letters of Credit hereunder, each Canadian L/C Participant irrevocably agrees to
accept and purchase and hereby accepts and purchases from the Canadian Issuing
Lender, on the terms and conditions hereinafter stated, for such Canadian L/C
Participant's own account and risk, an undivided interest equal to such Canadian
L/C Participant's Canadian Revolving Credit Percentage in the Canadian Issuing
Lender's obligations and rights under each Canadian Letter of Credit issued by
the Canadian Issuing Lender hereunder and the amount of each draft paid by the
Canadian Issuing Lender thereunder. Each Canadian L/C Participant
unconditionally and irrevocably agrees with the Canadian Issuing Lender that, if
a draft is paid under any Canadian Letter of Credit issued by the Canadian
Issuing Lender for which the Canadian Issuing Lender is not reimbursed in full
by the Canadian Borrower in accordance with the terms of this Agreement, such
Canadian L/C Participant shall pay to the Canadian Administrative Agent upon
demand of the Canadian Issuing Lender an amount in Canadian Dollars or Dollars,
as applicable, equal to such Canadian L/C Participant's Canadian Revolving
Credit Percentage of the amount of such draft, or any part thereof, that is not
so reimbursed. The Canadian Administrative Agent shall promptly forward such
amounts to the Canadian Issuing Lender.
(e) If any amount required to be paid by any Canadian L/C Participant
to the Canadian Issuing Lender pursuant to Section 3.10(d) in respect of any
unreimbursed portion of any payment made by the Canadian Issuing Lender under
any Canadian Letter of Credit is paid to the Canadian Issuing Lender within
three Business Days after the date such payment is due, the Canadian Issuing
Lender shall so notify the Administrative Agent and the Canadian Administrative
Agent who shall promptly notify the Canadian L/C Participants and each such
Canadian L/C Participant shall pay to the Canadian Administrative Agent, for the
account of the Canadian Issuing Lender, on demand (and thereafter the Canadian
Administrative Agent shall promptly pay to the Canadian Issuing Lender) an
amount equal to the product of (i) such amount, times (ii) the daily average
interbank offered rate quoted by the Canadian Administrative Agent during the
period from and including the date such payment is required to the date on which
such payment is immediately available to the Canadian Issuing Lender, times
(iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. If any such amount required to
be paid by any Canadian L/C Participant pursuant to Section 3.10(d) is not made
available to the Canadian Administrative Agent, for the account of the Canadian
Issuing Lender, by such Canadian L/C Participant within three Business Days
after the date such payment is due, the Canadian Administrative Agent, on behalf
of the Canadian Issuing Lender, shall be entitled to recover from such Canadian
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Base Rate Loans under the
Canadian Revolving Facility for amounts due in Dollars and Canadian Prime Rate
Loans under the Canadian Revolving Facility for amounts due in Canadian Dollars.
A certificate of the Canadian Administrative Agent on behalf of the Canadian
Issuing Lender submitted to any Canadian L/C Participant with respect to any
such amounts owing under this Section shall be conclusive in the absence of
manifest error.
(f) Whenever, at any time after the Canadian Issuing Lender has made
payment under any Canadian Letter of Credit and has received from the Canadian
Administrative Agent any Canadian L/C Participant's pro rata share of such
payment in accordance with Section 3.10(d), the Canadian Issuing Lender receives
any payment related to such Canadian Letter of Credit (whether directly from the
Canadian Borrower or otherwise, including proceeds of collateral applied thereto
by the Canadian Issuing Lender), or any payment of interest on account
60
thereof, the Canadian Issuing Lender will distribute to the Canadian
Administrative Agent for the account of such Canadian L/C Participant (and
thereafter, the Canadian Administrative Agent will promptly distribute to such
Canadian L/C Participant) its pro rata share thereof; provided, however, that in
the event that any such payment received by the Canadian Issuing Lender shall be
required to be returned by the Canadian Issuing Lender, such Canadian L/C
Participant shall return to the Canadian Administrative Agent for the account of
the Canadian Issuing Lender the portion thereof previously distributed to it by
the Canadian Issuing Lender or the Canadian Administrative Agent, as the case
may be.
3.11. Reimbursement Obligation of the Borrowers. (a) The U.S. Borrower
agrees to reimburse the U.S. Issuing Lender, within one Business Day of the date
on which the U.S. Issuing Lender notifies Cedar Fair LP of the date and amount
of a draft presented under any U.S. Letter of Credit and paid by the U.S.
Issuing Lender in substantial conformity with the terms of such U.S. Letter of
Credit (as determined by the U.S. Issuing Lender in its reasonable discretion),
for the amount of (a) such draft so paid and (b) any taxes, fees, charges or
other costs or expenses incurred by the U.S. Issuing Lender in connection with
such payment (the amounts described in the foregoing clauses (a) and (b) in
respect of any drawing, collectively, the "Payment Amount"). Each such payment
shall be made to the U.S. Issuing Lender at its address for notices specified
herein in Dollars and in immediately available funds. Interest shall be payable
on the Payment Amount from the date of the applicable drawing until payment in
full at the rate set forth in (i) until the second Business Day following the
date of the applicable drawing, Section 4.5(b) and (ii) thereafter, Section
4.5(f). Each drawing under any U.S. Letter of Credit shall (unless an event of
the type described in clause (i) or (ii) of Section 9(f) shall have occurred and
be continuing with respect to the U.S. Borrower, in which case the procedures
specified in Section 3.10 for funding by U.S. L/C Participants shall apply)
constitute a request by the U.S. Borrower to the Administrative Agent for a
borrowing pursuant to Section 3.2(a) of Base Rate Loans (or, at the option of
the Administrative Agent and the U.S. Swing Line Lender in their sole
discretion, a borrowing pursuant to Section 3.4(a) of U.S. Swing Line Loans) in
the amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the first date on which a borrowing of U.S. Revolving Loans (or, if
applicable, U.S. Swing Line Loans) could be made, pursuant to Section 3.2(a)
(or, if applicable, Section 3.4(a)), if the Administrative Agent had received a
notice of such borrowing at the time the Administrative Agent receives notice
from the U.S. Issuing Lender of such drawing under such U.S. Letter of Credit.
All payments due from the U.S. Borrower hereunder in respect of U.S. Letters of
Credit (and U.S. Reimbursement Obligations in connection therewith) shall be
made in Dollars.
(b) The Canadian Borrower agrees to reimburse the Canadian Issuing
Lender, within one Business Day of the date on which the Canadian Issuing Lender
notifies the Canadian Borrower of the date and amount of a draft presented under
any Canadian Letter of Credit and paid by the Canadian Issuing Lender in
substantial conformity with the terms of such Canadian Letter of Credit (as
determined by the Canadian Issuing Lender in its reasonable discretion), for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs
or expenses incurred by the Canadian Issuing Lender in connection with such
payment (the amounts described in the foregoing clauses (a) and (b) in respect
of any drawing, collectively, the "Canadian Payment Amount"). Each such payment
shall be made to the Canadian Issuing Lender at its address for notices
specified herein in Canadian Dollars or Dollars, as applicable (as determined in
accordance with the currency of such Canadian Letter of Credit), and in
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immediately available funds. Interest shall be payable on the amount of each
Canadian Payment Amount from the date of the applicable drawing until payment in
full at the rate set forth in (i) until the second Business Day following the
date of the applicable drawing, Section 4.5(d) and (ii) thereafter, Section
4.5(f). Each drawing under any Canadian Letter of Credit shall (unless an event
of the type described in clause (i) or (ii) of Section 9(f) shall have occurred
and be continuing with respect to the Canadian Borrower, in which case the
procedures specified in Section 3.10 for funding by L/C Participants shall
apply) constitute a request by the Canadian Borrower to the Canadian
Administrative Agent for a borrowing pursuant to Section 3.2(b) of Canadian
Prime Rate Loans (or, at the option of the Canadian Administrative Agent and the
Canadian Swing Line Lender in their sole discretion, a borrowing pursuant to
Section 3.4(f) of Canadian Swing Line Loans) or Base Rate Loans, as applicable,
in the amount of such drawing. The Borrowing Date with respect to such borrowing
shall be the first date on which a borrowing of Canadian Revolving Loans (or, if
applicable, Canadian Swing Line Loans) could be made, pursuant to Section 3.2(b)
(or, if applicable, Section 3.4(f)), if the Canadian Administrative Agent had
received a notice of such borrowing at the time the Canadian Administrative
Agent received notice from the Canadian Issuing Lender of such drawing under
such Canadian Letter of Credit. All payments due from the Canadian Borrower
hereunder in respect of Canadian Letters of Credit (and Canadian Reimbursement
Obligations in connection therewith) shall be made in Canadian Dollars or
Dollars, as applicable (as determined in accordance with the currency of such
Letter of Credit).
3.12. Obligations Absolute. The Borrowers' obligations under Section
3.11 shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that either
Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrowers also agree with each Issuing
Lender that no Issuing Lender shall be responsible for, and the Borrowers'
Reimbursement Obligations shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among either Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of either Borrower against any beneficiary of such Letter
of Credit or any such transferee. No Issuing Lender shall be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of such Issuing Lender. The Borrowers agree
that any action taken or omitted by any Issuing Lender under or in connection
with any Letter of Credit or the related drafts or documents, if done in the
absence of gross negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Commercial Code of the State of New
York, shall be binding on the Borrowers and shall not result in any liability of
such Issuing Lender to the Borrowers.
3.13. Letter of Credit Payments. If any draft shall be presented for
payment (a) under any U.S. Letter of Credit, the applicable U.S. Issuing Lender
shall promptly notify the U.S. Borrower of the date and amount thereof and (b)
under any Canadian Letter of Credit, the applicable Canadian Issuing Lender
shall promptly notify the Canadian Borrower of the date and amount thereof. The
responsibility of the Issuing Lenders to the Borrowers in connection with
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any draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
3.14. Applications. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. GENERAL PROVISIONS APPLICABLE
TO LOANS AND LETTERS OF CREDIT
4.1. Optional Prepayments. The Borrowers may at any time and from time
to time prepay the Loans (other than BA Loans but subject to Section
3.2(c)(xi)), in whole or in part, without premium or penalty, upon irrevocable
notice delivered by Cedar Fair LP to the Administrative Agent (and, with respect
to the Canadian Revolving Loans and/or Canadian Term Loans, the Canadian
Administrative Agent) no later than 11:00 A.M., New York City time, three
Business Days prior thereto, in the case of Eurodollar Loans, and no later than
11:00 A.M., New York City time, one Business Days prior thereto, in the case of
Base Rate Loans and Canadian Prime Rate Loans, which notice shall specify the
date and amount of prepayment and whether the prepayment is of Eurodollar Loans,
Base Rate Loans or Canadian Prime Rate Loans (and whether the prepayment is of
U.S. Term Loans, Canadian Term Loans, U.S. Revolving Loans and/or Canadian
Revolving Loans); provided, that if a Eurodollar Loan is prepaid on any day
other than the last day of the Interest Period applicable thereto, the
applicable Borrower shall also pay any amounts owing pursuant to Section 4.11.
Upon receipt of any such notice the Administrative Agent (or the Canadian
Administrative Agent, as applicable) shall promptly notify each relevant Lender
thereof. If any such notice is given, the amount specified in such notice shall
be due and payable on the date specified therein, together with (except in the
case of Revolving Loans that are Base Rate Loans, Canadian Prime Rate Loans, BA
Loans and Swing Line Loans) accrued interest to such date on the amount prepaid.
Partial prepayments of Term Loans and Revolving Loans shall be in an aggregate
principal amount of $1,000,000 or Cdn. $1,000,000 or a whole multiple thereof.
Partial prepayments of Swing Line Loans shall be in an aggregate principal
amount of $100,000 or Cdn. $100,000 or a whole multiple thereof.
4.2. Mandatory Prepayments. (a) If any Capital Stock shall be issued
by Cedar Fair LP (other than Capital Stock issued to employees and officers of a
Group Member pursuant to an established compensation plan) or any capital
contribution is made to Cedar Fair LP (other than a capital contribution by any
Group Member), an amount equal to 50% of the Net Cash Proceeds thereof shall be
applied on the date of such issuance or contribution toward the prepayment of
the Term Loans and the Revolving Loans as set forth in Sections 4.2(e) and (f);
provided, however, that notwithstanding the foregoing an amount equal to 100% of
the first $250,000,000 of Net Cash Proceeds of any such issuance or contribution
received by Cedar Fair LP after the date of this Agreement shall be applied on
the date of such issuance or contribution toward the prepayment of the U.S. Term
Loans and thereafter towards the prepayment of the Canadian Term Loans and the
Revolving Loans as set forth in Sections 4.2(e) and (f).
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(b) If any Indebtedness (other than Excluded Indebtedness) shall be
issued or incurred by any Group Member, an amount equal to 100% of the Net Cash
Proceeds thereof shall be applied on the date of such issuance or incurrence
toward the prepayment of the Term Loans and the Revolving Loans as set forth in
Sections 4.2(e) and (f).
(c) If any Group Member shall receive Net Cash Proceeds from any Asset
Sale or Recovery Event, unless a Reinvestment Notice shall have been delivered
by a Group Member within five Business Days of the receipt of such Net Cash
Proceeds, each applicable Borrower shall apply or cause to be applied such Net
Cash Proceeds to the prepayment or offer of prepayment of the Loans, as
applicable, as follows:
(i) in the case of U.S. Loans, such Net Cash Proceeds shall be
applied by the U.S. Borrower on the tenth Business Day following
receipt thereof toward the prepayment of the U.S. Term Loans and the
U.S. Revolving Loans in the amount and in the manner set forth in
Section 4.2(e); provided, that, notwithstanding the foregoing, on each
Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the U.S. Term Loans and the
Revolving Loans in the amount and in the manner set forth in Section
4.2(e); and
(ii) in the case of Canadian Loans, (A) such Net Cash Proceeds
shall be offered by the Canadian Borrower on the fifth Business Day
following receipt thereof by way of an offer in writing (a
"Disposition Repayment Offer") to the Administrative Agent and the
Canadian Administrative Agent to prepay, at a price equal to 100% of
the principal amount, the Canadian Term Loans in the amount and in the
manner specified in Section 4.2(e) and (B) if a Reinvestment Notice is
delivered within such five Business Day period in respect of an Asset
Sale or Recovery Event, the Canadian Borrower shall, on the
Reinvestment Prepayment Date in respect thereof, send the
Administrative Agent and the Canadian Administrative Agent a
Disposition Repayment Offer to prepay, at a price equal to 100% of the
principal amount, the Canadian Term Loans in the amount and in the
manner specified in Section 4.2(e). The Canadian Term Lenders will
have five Business Days from the making of any such offer to accept
such offer, and any offer not accepted within such time period shall
be deemed rejected. To the extent such offer is so accepted by the
Canadian Term Lenders or any of them, such prepayment shall be made
pro rata to the Canadian Term Lenders accepting the offer on a date no
later than ten Business Days after the date of such offer. To the
extent there remains any Net Cash Proceeds or Reinvestment Prepayment
Amount, as applicable, after paying the Canadian Term Lenders who have
accepted such offer, such excess shall be used to prepay the U.S. Term
Loans and the Revolving Loans in the amount and in the manner set
forth in Section 4.2(e). Failure to make the Disposition Repayment
Offer or to make the payments contemplated thereby shall constitute an
Event of Default under this Agreement. All payments made under this
paragraph shall be made on a pro rata basis to each Canadian Term
Lender accepting such offer.
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Notwithstanding the foregoing, the provisions of this Section 4.2(c)
do not constitute a consent to the consummation of any Disposition not permitted
by Section 8.5.
(d) If, during any Distribution Suspension Period, there shall be
positive Available Cash Flow for (i) the fiscal quarter ending immediately prior
to the commencement of such Distribution Suspension Period or (ii) any fiscal
quarter ending during such Distribution Suspension Period (other than, in the
case of this clause (ii), any such fiscal quarter as to which the Distribution
Suspension Period has ended as of the first day of the fiscal quarter
immediately thereafter) (any such quarter under clauses (i) or (ii), a "Subject
Quarter"), the Borrowers shall, on the relevant Available Cash Flow Application
Date for each such Subject Quarter, apply an amount equal to 50% of positive
Available Cash Flow for the applicable Subject Quarter toward the prepayment of
the Term Loans and the Revolving Loans as set forth in Sections 4.2(e) and (f).
Each such prepayment shall, for each applicable Subject Quarter, be made on the
date (an "Available Cash Flow Application Date") that would have been the
Quarterly Distribution Date for such Subject Quarter but for the fact that a
Distribution Suspension Period was applicable during such Subject Quarter
(taking into account any extension to the applicable Quarterly Distribution Date
in accordance with the conditions to such extension set forth in the definition
thereof).
(e) Amounts to be applied in connection with prepayments of the Loans
made pursuant to Sections 4.2(a) and (b) shall be applied, first, to the
prepayment of U.S. Term Loans, second, to the prepayment of Canadian Term Loans,
third, to the prepayment of U.S. Revolving Loans and/or U.S. Swing Line Loans to
the extent outstanding, and fourth, to the prepayment of Canadian Revolving
Loans and/or Canadian Swing Line Loans to the extent outstanding. Amounts to be
applied in connection with prepayments of the Loans made pursuant to Section
4.2(d) shall be applied, first, to the prepayment of the Term Loans (except as
otherwise expressly set forth herein, on a pro rata basis as between the U.S.
Term Loans and the Canadian Term Loans based on the aggregate principal amount
thereof then outstanding) and, second, to the prepayment of the Revolving Loans
and/or Swing Line Loans to the extent outstanding (except as otherwise expressly
set forth herein, on a pro rata basis based as between the U.S. Revolving Loans
and/or U.S. Swing Line Loans and the Canadian Revolving Loans and/or Canadian
Swing Line Loans based on the aggregate principal amount thereof then
outstanding). Amounts to be applied in connection with a Disposition Repayment
Offer or prepayment made pursuant to Section 4.2(c) shall be applied, (i) in the
case of Assets Sales or Recovery Events with respect to Canadian Property,
first, to the prepayment of Canadian Term Loans as set forth in Section
4.2(c)(ii), second, to the prepayment of U.S. Term Loans, third, to the
prepayment of Canadian Revolving Loans and/or Canadian Swing Line Loans to the
extent outstanding, and fourth, to the prepayment of U.S. Revolving Loans and/or
Swing Line Loans to the extent outstanding; provided, that with respect to Asset
Sales or Recovery Events related to all or substantially all of the assets of
the Canadian Borrower or Canada's Wonderland Company, the amounts to be applied
in connection with prepayments of the loans shall be applied first, to the
prepayment of Canadian Term Loans as set forth in Section 4.2(c)(ii), second, to
the prepayment of Canadian Revolving Loans and/or Canadian Swing Line Loans to
the extent outstanding (with a corresponding permanent reduction in and
termination of Canadian Revolving Commitments), third, to the prepayment of U.S.
Term Loans, and fourth, to the prepayment of U.S. Revolving Loans and/or U.S.
Swing Line Loans to the extent outstanding and (ii) in the case of Asset Sales
or Recovery Events with respect to any other Property, first, to the prepayment
of U.S. Term
65
Loans, second, to the prepayment of Canadian Term Loans as set forth in Section
4.2(c)(ii), third, to the prepayment of U.S. Revolving Loans and/or Swing Line
Loans to the extent outstanding, and fourth, to the prepayment of Canadian
Revolving Loans and/or Canadian Swing Line Loans to the extent outstanding.
Subject to the foregoing, the application of any prepayment pursuant to Section
4.2 shall be made, first, to Base Rate Loans (on a pro rata basis, except as
otherwise expressly set forth herein), second to Canadian Prime Rate Loans (on a
pro rata basis, except as otherwise expressly set forth herein), third, to
Eurodollar Loans (on a pro rata basis, except as otherwise expressly set forth
herein), and fourth to cash collateralize B/A's (on a pro rata basis, except as
otherwise expressly set forth herein). Any prepayment applied to the principal
of the Term Loans pursuant to Section 4.2 shall reduce proportionately the then
remaining principal installments due thereunder pursuant to Section 2.3. Each
prepayment of the Loans under Section 4.2 (except in the case of Revolving Loans
that are Base Rate Loans, Canadian Prime Rate Loans and Swing Line Loans) shall
be accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
(f) Notwithstanding the foregoing, if the amount of any prepayment of
the Canadian Term Loans required to be made in accordance with Sections 4.2(a),
(b) or (d) during the term of the Canadian Term Facility, together with the
amount of any prepayments of the Canadian Term Loans required to be made as a
result of an Asset Sale consisting solely of an issuance of the Capital Stock of
a Subsidiary of Cedar Fair LP (in this paragraph, "Special Equity Prepayments"),
when added to other repayments previously made in accordance with Sections
4.2(a), (b) or (d), Special Equity Prepayments and scheduled installment
payments made or to be made on the Canadian Term Loans in accordance with
Section 2.3, exceeds 25% of the sum of the original principal amount of the
Canadian Term Loans, then the amount of such excess Net Cash Proceeds or
Available Cash Flow shall be applied toward the prepayment of U.S. Term Loans in
accordance with Section 4.2(e) to the extent any U.S. Term Loans are then
outstanding and, otherwise may be used for any other purpose (other than the
making of Restricted Payments) permitted by this Agreement; provided, however,
that upon the occurrence and during the continuation of any Event of Default,
the Canadian Borrower shall be obligated to prepay Canadian Term Loans to the
extent provided in Sections 4.2(a), (b), (c) and (d) without regard for this
Section 4.2(f) because of such Event of Default.
(g) If at any time (i) the aggregate U.S. Revolving Extensions of
Credit of all U.S. Revolving Lenders exceed the U.S. Revolving Credit
Commitments of all U.S. Lenders, the U.S. Borrower shall immediately repay the
U.S. Revolving Loans and/or U.S. Swing Line Loans and/or terminate or cash
collateralize outstanding U.S. Letters of Credit in any such case, as and to the
extent necessary to ensure that the U.S. Revolving Extensions of Credit of each
U.S. Revolving Lender are less than or equal to the U.S. Revolving Commitments
of such U.S. Revolving Lender or (ii) the aggregate Canadian Revolving
Extensions of Credit of all Canadian Revolving Lenders exceed the Canadian
Revolving Credit Commitments of all Canadian Lenders (in the case of any
Canadian Revolving Extensions of Credit made in Canadian Dollars, valued at the
Dollar Equivalent of such Canadian Dollars as of the relevant date of
determination), the Canadian Borrower shall immediately repay the Canadian
Revolving Loans and/or Canadian Swing Line Loans and/or terminate or cash
collateralize outstanding Canadian Letters of Credit, in any such case, as and
to the extent necessary to ensure that the Canadian Revolving Extensions of
Credit of each Canadian Revolving Lender are less than or equal to the Canadian
Revolving Commitments of such Canadian Revolving Lender (in the case of any
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Canadian Revolving Extensions of Credit made in Canadian Dollars, valued at the
Dollar Equivalent of such Canadian Dollars as of the relevant date of
determination).
4.3. Conversion and Continuation Options. (a) Each of the U.S.
Borrower and the Canadian Borrower may elect from time to time to convert
Eurodollar Loans to Base Rate Loans, and the Canadian Borrower may elect to
convert BA Loans at the expiry of the relevant Interest Period to Canadian Prime
Rate Loans, by giving the Administrative Agent, and, with respect to Canadian
Prime Rate Loans, the Canadian Administrative Agent, at least two Business Days'
prior irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans and BA Loans may be made only on the last day of an Interest
Period with respect thereto. Each of the U.S. Borrower and the Canadian Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans, and
the Canadian Borrower may elect to convert Canadian Prime Rate Loans to BA
Loans, by giving the Administrative Agent, and, with respect to Canadian Prime
Rate Loans, the Canadian Administrative Agent, at least three Business Days'
prior irrevocable notice as to Eurodollar Loans, and two Business Days' prior
irrevocable notice as to BA Loans, of such election (which notice shall specify
the length of the initial Interest Period therefor), provided that no Base Rate
Loan under a particular Facility may be converted into a Eurodollar Loan and no
Canadian Prime Rate Loan may be converted into a BA Loan (i) when any Event of
Default has occurred and is continuing and the Administrative Agent, the
Canadian Administrative Agent (in the case of the Canadian Facilities), or the
Majority Facility Lenders (in the case of the applicable Facility) have
determined in its or their sole discretion not to permit such conversions or
(ii) if the applicable Interest Period selected by the Borrower extends beyond
the Revolving Termination Date, in the case of any Revolving Loans, or the
applicable maturity date, in the case of the Term Loans. Upon receipt of any
such notice the Administrative Agent, or the Canadian Administrative Agent, as
applicable, shall promptly notify each relevant Lender thereof.
(b) Each of the U.S. Borrower and the Canadian Borrower may elect to
continue any Eurodollar Loan as such and the Canadian Borrower may elect to
continue any BA Loan as such upon the expiration of the then current Interest
Period with respect thereto by giving at least three Business Days' prior
irrevocable notice as to Eurodollar Loans, and two Business Days' prior
irrevocable notice as to BA Loans, to the Administrative Agent, and with respect
to the Canadian Facilities, the Canadian Administrative Agent, in accordance
with the applicable provisions of the term "Interest Period" set forth in
Section 1.1, of the length of the next Interest Period to be applicable to such
Loans, provided that no Eurodollar Loan or BA Loan under a particular Facility
may be continued as such (i) when any Event of Default has occurred and is
continuing and the Administrative Agent has or, with respect to the Canadian
Facilities, the Canadian Administrative Agent has, or the Majority Facility
Lenders in respect of such Facility have, determined in its or their sole
discretion not to permit such continuations or (ii) after the date that is one
month prior to the final scheduled termination or maturity date of such
Facility, and provided, further, that if the U.S. Borrower or the Canadian
Borrower, as applicable, shall fail to give any required notice as described
above in this paragraph (i) such Eurodollar Loans shall be continued for the
same Interest Period as the then expiring Interest Period as of the last day of
such then expiring Interest Period, except that if such continuation is not
permitted pursuant to the first proviso in this Section 4.3(b) such Loans shall
be repaid or (if not so repaid) converted automatically to Base Rate Loans and
(ii) the face amount of such BA Loan shall be repaid or (if not so repaid)
automatically converted to Canadian Prime Rate Loans, in each case
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on the last day of such then expiring Interest Period. Upon receipt of any such
notice the Administrative Agent, or the Canadian Administrative Agent, as
applicable, shall promptly notify each relevant Lender thereof.
(c) Neither the conversion nor the continuation of any Loan pursuant
to any provision of this Agreement (i) creates a new Loan or other obligation or
constitutes a novation of such Loan or (ii) constitutes or requires the
repayment and/or readvance of any principal amount of such Loan. Rather, such
conversion or continuation of any Loan merely constitutes a change in the manner
in which interest is calculated and payable on such Loan in accordance with the
interest rate options available under this Agreement.
4.4. Limitations on Eurodollar Tranches. (a) Notwithstanding anything
to the contrary in this Agreement, all borrowings, conversions, continuations
and optional prepayments of Eurodollar Loans and all selections of Interest
Periods shall be in such amounts and be made pursuant to such elections so that,
(i) after giving effect thereto, the aggregate principal amount of the
Eurodollar Loans comprising each Eurodollar Tranche shall be equal to $5,000,000
or a whole multiple of $1,000,000 in excess thereof and (ii) no more than ten
Eurodollar Tranches shall be outstanding at any one time.
(b) Notwithstanding anything to the contrary in this Agreement, all
borrowings, conversions, continuations and optional prepayments of BA Loans and
all selections of Interest Periods shall be in such amounts and be made pursuant
to such elections so that (i) after giving effect thereto, the aggregate
principal amount of any BA Loan shall be equal to Cdn. $5,000,000 or a whole
multiple of Cdn. $1,000,000 in excess thereof and (ii) no more than six BA Loans
shall be outstanding at any one time.
4.5. Interest Rates and Payment Dates. (a) Each Eurodollar Loan shall
bear interest for each day during each Interest Period with respect thereto at a
rate per annum equal to the Eurodollar Rate determined for such day plus the
Applicable Margin.
(b) Each Base Rate Loan (other than a Canadian Revolving Loan) shall
bear interest for each day on which it is outstanding at a rate per annum equal
to the Base Rate in effect for such day plus the Applicable Margin in effect for
such day, and each Base Rate Loan that is a Canadian Revolving Loan shall bear
interest for each day on which it is outstanding at a rate per annum equal to
(i) for Canadian Revolving Loans denominated in Dollars, the U.S. Base Rate in
Canada in effect for such day plus the Applicable Margin in effect for such day
and (ii) for Canadian Revolving Loans denominated in Canadian Dollars, the
Canadian Prime Rate in effect for such day plus the Applicable Margin in effect
for such day.
(c) Each U.S. Swing Line Loan shall bear interest for each day on
which it is outstanding in accordance with Section 3.3(a). Each Canadian Swing
Line Loan shall bear interest for each day on which it is outstanding in
accordance with Section 3.3(c).
(d) Each Canadian Prime Rate Loan shall bear interest for each day on
which it is outstanding at a rate per annum equal to the Canadian Prime Rate in
effect for such day plus the Applicable Margin in effect for such day.
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(e) On the Borrowing Date in respect of a BA Loan, the Canadian
Borrower shall pay to the Canadian Administrative Agent for the benefit of the
Canadian Revolving Lenders the Acceptance Fee calculated on the face amount of
the applicable Bankers' Acceptances at a rate per annum equal to the Applicable
Margin on the basis of the number of days in the Interest Period for the BA Loan
and a year of 365 days.
(f) (i) If all or a portion of the principal amount of any Loan or
Reimbursement Obligation shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise) or an Event of Default exists under
Section 9(f), such overdue amounts or, in the case of such an Event of Default,
all outstanding Loans and Reimbursement Obligations (in either case, to the
extent legally permitted), shall bear interest at a rate per annum that is equal
to (x) in the case of the Loans, the rate that would otherwise be applicable
thereto pursuant to the foregoing provisions of this Section plus 2.00%, (y) in
the case of the U.S. Borrower's Reimbursement Obligations, the rate applicable
to Base Rate Loans under the U.S. Revolving Facility plus 2.00%, or (z) in the
case of the Canadian Borrower's Reimbursement Obligations, the rate applicable
to Canadian Prime Rate Loans under the Canadian Revolving Facility plus 2.00%,
and (ii) if all or a portion of any interest payable on any Loan or
Reimbursement Obligation or any commitment fee or other amount payable hereunder
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum equal to
the rate then applicable to (A) Base Rate Loans under the relevant Facility plus
2.00% for interest due in Dollars, and (B) Canadian Prime Rate Loans plus 2.00%
for interest due in Canadian Dollars (or, in the case of any such other amounts
that do not relate to a particular Facility, the rate then applicable to Base
Rate Loans under the U.S. Revolving Facility and/or the Canadian Revolving
Facility plus 2.00% for amounts due in Dollars and the rate then applicable to
Canadian Prime Rate Loans plus 2.00% for amounts due in Canadian Dollars), in
each case, with respect to clauses (i) and (ii) above, from the date of such
non-payment until such amount is paid in full (after as well as before
judgment).
(g) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (f) of this Section
shall be payable from time to time on demand.
(h) If any provision of this Agreement or any of the other Loan
Documents would obligate any Loan Party to make any payment of interest with
respect to the Canadian Obligations or other amount payable to any Agent or any
Lender in an amount or calculated at a rate which would be prohibited by law or
would result in a receipt by such Agent or such Lender of interest with respect
to the Canadian Obligations at a criminal rate (as such terms are construed
under the Criminal Code (Canada)) then, notwithstanding such provision, such
amount or rates shall be deemed to have been adjusted with retroactive effect to
the maximum amount or rate of interest, as the case may be, as would not be so
prohibited by law or so result in a receipt by such Agent or such Lender of
interest with respect to the Canadian Obligations at a criminal rate, such
adjustment to be effected, to the extent necessary, as follows: (1) first, by
reducing the amount or rates of interest required to be paid to the affected
Agent or the affected Lender under Section 4.5(f); and (2) thereafter, by
reducing any fees, commissions, premiums and other amounts required to be paid
to the affected Agent or the affected Lender which would constitute interest
with respect to the Canadian Obligations for purposes of Section 347 of the
Criminal Code (Canada). Notwithstanding the foregoing, and after giving effect
to all adjustments
69
contemplated thereby, if any Agent or any Lender shall have received an amount
in excess of the maximum permitted by that section of the Criminal Code
(Canada), then the applicable Loan Party shall be entitled, by notice in writing
to the affected Agent or the affected Lender, to obtain reimbursement from such
Agent or such Lender in an amount equal to such excess, and pending such
reimbursement, such amount shall be deemed to be an amount payable by such Agent
or such Lender to the applicable Loan Party. Any amount or rate of interest
under the Canadian Obligations referred to in this Section 4.5(h) shall be
determined in accordance with generally accepted actuarial practices and
principles as an effective annual rate of interest over the term that any
Canadian Loans remain outstanding on the assumption that any charges, fees or
expenses that fall within the meaning of "interest" (as defined in the Criminal
Code (Canada)) shall, if they relate to a specific period of time, be pro-rated
over that period of time and otherwise be pro-rated over the period from the
Closing Date to the applicable maturity date therefor, and, in the event of a
dispute, a certificate of a Fellow of the Canadian Institute of Actuaries
appointed by the Administrative Agent and the Canadian Administrative Agent
shall be conclusive for the purposes of such determination.
(i) For purposes of disclosure pursuant to the Interest Act (Canada),
the annual rates of interest or fees to which the rates of interest or fees
provided in this Agreement and the other Loan Documents (and stated herein or
therein, as applicable, to be computed on the basis of a 360 day year or any
other period of time less than a calendar year) are equivalent to the rates so
determined multiplied by the actual number of days in the applicable calendar
year and divided by 360 or such other period of time, respectively.
4.6. Computation of Interest and Fees. (a) Interest, fees and
commissions payable pursuant hereto shall be calculated on the basis of a
360-day year for the actual days elapsed, except that, with respect to (i) Base
Rate Loans the rate of interest on which is calculated on the basis of the Prime
Rate, (ii) Base Rate Loans the rate of interest on which is calculated on the
basis of the U.S. Base Rate in Canada, (iii) Canadian Prime Rate Loans the rate
of interest on which is calculated on the basis of the Canadian Prime Rate and
(iv) BA Loans, the interest thereon shall be calculated on the basis of a 365-
(or, except in the case of BA Loans, 366-, as the case may be) day year for the
actual days elapsed. The Administrative Agent or, with respect to the Canadian
Facilities, the Canadian Administrative Agent shall as soon as practicable
notify the applicable Borrower and the relevant Lenders of each determination of
a Eurodollar Rate. Any change in the interest rate on a Loan resulting from a
change in the Base Rate, Canadian Prime Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent or, with respect
to the Canadian Facilities, the Canadian Administrative Agent shall as soon as
practicable notify the applicable Borrower and the relevant Lenders of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
or, with respect to the Canadian Facilities (and including the Discount Rate),
the Canadian Administrative Agent, pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrowers and the Lenders in the absence
of manifest error. The Administrative Agent or the Canadian Administrative
Agent, as applicable, shall, at the request of Cedar Fair LP, deliver to Cedar
Fair LP a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 4.6(a).
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4.7. Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Administrative Agent or, with respect to the Canadian
Facilities, the Canadian Administrative Agent, shall have determined (which
determination shall be conclusive and binding upon the Borrowers) that, by
reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate for such
Interest Period, or
(b) the Administrative Agent or, with respect to the Canadian
Facilities, the Canadian Administrative Agent, shall have received notice
from the Majority Facility Lenders in respect of the relevant Facility that
the Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent or, with respect to the Canadian Facilities, the
Canadian Administrative Agent, shall give telecopy or telephonic notice thereof
to the applicable Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans under the relevant
Facility requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (y) any Loans under the relevant Facility that were to
have been converted on the first day of such Interest Period to Eurodollar Loans
shall be continued as Base Rate Loans and (z) any outstanding Eurodollar Loans
under the relevant Facility shall be converted, on the last day of the
then-current Interest Period, to Base Rate Loans. Until such notice has been
withdrawn by the Administrative Agent or the Canadian Administrative Agent, as
applicable, no further Eurodollar Loans under the relevant Facility shall be
made or continued as such, nor shall the Borrowers have the right to convert
Loans under the relevant Facility to Eurodollar Loans.
4.8. Pro Rata Treatment and Payments. (a) Except as otherwise
expressly set forth herein, each borrowing by a Borrower from the Lenders
hereunder, each payment by a Borrower on account of any Acceptance Fee,
commitment fee or Letter of Credit fee, and any reduction of the Commitments of
the Lenders, shall be made pro rata according to the respective outstanding U.S.
Term Credit Percentages, Canadian Term Credit Percentages, U.S. Revolving Credit
Percentages, or Canadian Revolving Credit Percentages, as the case may be, of
the relevant Lenders.
(b) Except as otherwise expressly set forth herein, (including Section
2.3, 4.2(a), 4.2(c)(ii) or 4.2(f)), each payment (including each prepayment) by
the Borrowers on account of principal of and interest on the Canadian Term Loans
and the U.S. Term Loans shall be made pro rata according to the respective
outstanding principal amounts of such Term Loans then held by the respective
Term Lenders. The amount of each principal prepayment of the Term Loans shall be
applied to reduce the then remaining installments of the Term Loans pro rata
based upon the then remaining principal amount thereof. Amounts repaid or
prepaid on account of the Term Loans may not be reborrowed.
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(c) Each payment (including each prepayment) by the Borrowers on
account of principal of and interest on the Canadian Revolving Loans and the
U.S. Revolving Loans shall be made pro rata according to the respective
outstanding principal amounts of such, as the case may be, Canadian Revolving
Loans or U.S. Revolving Loans then held by, as the case may be, the respective
Canadian Revolving Lenders or U.S. Revolving Lenders.
(d) All payments (including prepayments) to be made by either Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim. All payments (including prepayments) to
be made by the U.S. Borrower hereunder with respect to the U.S. Facilities
whether on account of principal, interest, fees or otherwise shall be made prior
to 12:00 Noon, New York City time, on the due date thereof to the Administrative
Agent, for the account of the applicable Lenders, at the Funding Office, in
Dollars and in immediately available funds. Any payment made by the U.S.
Borrower after 12:00 Noon, New York City time, on any Business Day shall be
deemed to have been made on the next following Business Day. The Administrative
Agent shall distribute such payments to the applicable Lenders promptly upon
receipt in like funds as received. All payments (including prepayments) to be
made by the Canadian Borrower hereunder with respect to the Canadian Facilities,
whether on account of principal, interest, fees or otherwise, shall be made
prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian
Administrative Agent, for the account of the relevant Lenders, at the Canadian
Payment Office, in Canadian Dollars or Dollars (as applicable) and in
immediately available funds. Any payment made by the Canadian Borrower after
12:00 Noon, Toronto time, on any Business Day shall be deemed to have been made
on the next following Business Day. The Canadian Administrative Agent shall
distribute such payments to the relevant Canadian Lenders promptly upon receipt
in like funds as received. If any payment hereunder (other than payments on the
Eurodollar Loans and BA Loans) becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day. If any payment on a Eurodollar Loan becomes due and payable on a day other
than a Business Day, the maturity thereof shall be extended to the next
succeeding Business Day unless the result of such extension would be to extend
such payment into another calendar month, in which event such payment shall be
made on the immediately preceding Business Day. In the case of any extension of
any payment of principal pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension. If
any payment on a BA Loan becomes due and payable on a day other than a Business
Day, such payment shall be made on the immediately preceding Business Day.
(e) Other than with respect to the Canadian Term Loan, unless the
Administrative Agent or the Canadian Administrative Agent, as applicable, shall
have been notified in writing by any Lender prior to a borrowing that such
Lender will not make the amount that would constitute its share of such
borrowing available to the Administrative Agent or the Canadian Administrative
Agent, as applicable, the Administrative Agent or the Canadian Administrative
Agent, as applicable, may assume that such Lender is making such amount
available to the Administrative Agent or the Canadian Administrative Agent, as
applicable, and the Administrative Agent or the Canadian Administrative Agent,
as applicable, may, in reliance upon such assumption, make available to the
applicable Borrower a corresponding amount. If such amount is not made available
to the Administrative Agent or the Canadian Administrative Agent, as applicable,
by the required time on the Borrowing Date therefor, such Lender shall pay to
the Administrative Agent or the Canadian Administrative Agent, as applicable, on
demand,
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such amount with interest thereon at a rate equal to the greater of (i) the
Federal Funds Effective Rate for amounts in Dollars and the interbank offered
rate quoted by the Canadian Administrative Agent for amounts in Canadian Dollars
and (ii) a rate determined by the Administrative Agent or, with respect to the
Canadian Facilities, the Canadian Administrative Agent in accordance with
banking industry rules on interbank compensation for the period until such
Lender makes such amount immediately available to the Administrative Agent or
the Canadian Administrative Agent, as applicable. A certificate of the
Administrative Agent or the Canadian Administrative Agent, as applicable,
submitted to any Lender with respect to any amounts owing under this paragraph
shall be conclusive in the absence of manifest error. If such Lender's share of
such borrowing is not made available to the Administrative Agent or the Canadian
Administrative Agent, as applicable, by such Lender within three Business Days
of such Borrowing Date, the Administrative Agent or the Canadian Administrative
Agent, as applicable, shall also be entitled to recover such amount with
interest thereon at the rate per annum applicable to Base Rate Loans under the
relevant Facility, on demand, from the applicable Borrower.
(f) Unless the Administrative Agent or the Canadian Administrative
Agent, as applicable, shall have been notified in writing by either Borrower
prior to the date of any payment due to be made by either Borrower hereunder
that such Borrower will not make such payment to the Administrative Agent or the
Canadian Administrative Agent, as applicable, the Administrative Agent or the
Canadian Administrative Agent, as applicable, may assume that such Borrower is
making such payment, and the Administrative Agent or the Canadian Administrative
Agent, as applicable, may, but shall not be required to, in reliance upon such
assumption, make available to the Lenders their respective pro rata shares of a
corresponding amount. If such payment is not made to the Administrative Agent or
the Canadian Administrative Agent, as applicable, by the applicable Borrower
within three Business Days after such due date, the Administrative Agent or the
Canadian Administrative Agent, as applicable, shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate for amounts in
Dollars and the interbank offered rate quoted by the Canadian Administrative
Agent for amounts in Canadian Dollars. Nothing herein shall be deemed to limit
the rights of the Administrative Agent, the Canadian Administrative Agent or any
Lender against the Borrowers.
4.9. Requirements of Law. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax (or any increase in tax)
of any kind whatsoever with respect to this Agreement, any Letter of
Credit, any Application or any Eurodollar Loan or any BA Loan made by
it, or change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes covered by Section 4.10
or changes in the rate of tax on the overall net income or capital of
such Lender);
73
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held
by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of
funds by, any office of such Lender that is not otherwise included in
the determination of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or BA Loans or issuing or
participating in Letters of Credit, or to reduce any amount receivable hereunder
in respect thereof, then, in any such case, the applicable Borrower shall
promptly pay such Lender, upon its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
paragraph, it shall promptly notify Cedar Fair LP (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any Person
controlling such Lender with any request or directive regarding capital adequacy
(whether or not having the force of law) from any Governmental Authority made
subsequent to the date hereof shall have the effect of reducing the rate of
return on such Lender's or such Person's capital as a consequence of its
obligations hereunder or under or in respect of any Letter of Credit to a level
below that which such Lender or such Person could have achieved but for such
adoption, change or compliance (taking into consideration such Lender's or such
Person's policies with respect to capital adequacy) by an amount deemed by such
Lender to be material, then from time to time, after submission by such Lender
to Cedar Fair LP (with a copy to the Administrative Agent) of a written request
therefor, the applicable Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender or such Person for such
reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to Cedar Fair LP (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error.
Notwithstanding anything to the contrary in this Section, the Borrowers shall
not be required to compensate a Lender pursuant to this Section for any amounts
incurred more than six months prior to the date that such Lender notifies Cedar
Fair LP of such Lender's intention to claim compensation therefor; provided
that, if the circumstances giving rise to such claim have a retroactive effect,
then such six-month period shall be extended to include the period of such
retroactive effect. The obligations of the Borrowers pursuant to this Section
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
4.10. Taxes. (a) All payments made under the Loan Documents shall,
except to the extent required by applicable law, be made free and clear of, and
without deduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied,
74
collected, withheld or assessed by any Governmental Authority ("Taxes"),
excluding net income taxes, capital taxes and franchise taxes (imposed in lieu
of net income taxes) imposed on any Agent or any Lender as a result of a present
or former connection between such Agent or such Lender and the jurisdiction of
the Governmental Authority imposing such tax or any political subdivision or
taxing authority thereof or therein (other than any such connection arising
solely from such Agent or such Lender having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded Taxes ("Non-Excluded Taxes") or
Other Taxes are required to be withheld or deducted from or are otherwise
imposed on any amounts payable to any Agent or any Lender hereunder, the amounts
so payable to such Agent or such Lender shall be increased to the extent
necessary to yield to such Agent or such Lender (after payment of all
Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, provided,
however, that the Borrowers shall not be required to increase any such amounts
payable to any Lender with respect to any Non-Excluded Taxes (i) that are
attributable to such Lender's failure to comply with the requirements of
paragraph (d), (e) or (f) of this Section or (ii) that are United States federal
withholding taxes imposed on amounts payable to such Lender at the time such
Lender becomes a party to this Agreement, except to the extent that such
Lender's assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrowers with respect to such Non-Excluded Taxes
pursuant to this paragraph, and provided, further, that subject to Sections 4.12
and 4.13, the Canadian Borrower shall not be required to increase any amounts
payable to a Canadian Revolving Lender in respect of Canadian federal
non-resident withholding taxes imposed on amounts payable to the Canadian
Revolving Lender, except to the extent (A) such taxes are imposed on a
Qualifying Canadian Lender by virtue of a change in law that occurs after the
Closing Date, or (B) the Canadian Revolving Lender is not a Qualifying Canadian
Lender but is an Assignee or Participant to whom an assignment was made or a
participation was sold either with the Canadian Borrower's or Cedar Fair LP's
prior written consent or after the occurrence and during the continuance of an
Event of Default.
(b) In addition, the Borrowers shall pay any Non-Excluded Taxes and
Other Taxes to the relevant Governmental Authority in accordance with applicable
law.
(c) Whenever any Taxes are payable or to be remitted with respect to
any payments under the Loan Documents by either Borrower, as promptly as
possible thereafter such Borrower shall send to each of the Administrative Agent
and the Canadian Administrative Agent for its own account or for the account of
the relevant Agent or Lender, as the case may be, a certified copy of an
original official receipt (or other documentary evidence of payment or
remittance that is reasonably satisfactory to the Administrative Agent and the
Canadian Administrative Agent) showing payment or remittance thereof. If the
applicable Borrower fails to withhold, pay or remit any Non-Excluded Taxes or
Other Taxes when due to the appropriate taxing authority or fail to remit to the
Administrative Agent and the Canadian Administrative Agent the required receipts
or other required documentary evidence, such Borrower shall indemnify, on an
after-tax basis, the Agents and the Lenders for any taxes, interest or penalties
that may be payable by any Agent or any Lender as a result of any such failure
whether or not such amounts are correctly or legally asserted.
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(d) Each Lender (or Transferee), that is not a "U.S. Person" as
defined in Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver,
in the case of a U.S. Lender, to Cedar Fair LP and the Administrative Agent and,
in the case of a Canadian Lender, to Cedar Fair LP and the Canadian
Administrative Agent (or, in the case of a Participant, to the Lender from which
the related participation shall have been purchased) two original copies of
either U.S. Internal Revenue Service Form W-8BEN, Form W-8ECI or Form W-8IMY
(together with any required attachments), or, in the case of a Foreign Lender
claiming exemption from U.S. federal withholding tax under Section 871(h) or
881(c) of the Code with respect to payments of "portfolio interest", a statement
substantially in the form of Exhibit F and a Form W-8BEN, or any subsequent
versions thereof or successors thereto, in each case, properly completed and
duly executed by such Foreign Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Borrowers
under this Agreement and the other Loan Documents. Such forms shall be delivered
by each Foreign Lender on or before the date it becomes a party to this
Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Foreign
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Foreign Lender. Each Foreign Lender shall
promptly notify Cedar Fair LP and the Administrative Agent (or, in the case of a
Canadian Lender, the Canadian Administrative Agent) at any time it determines
that it is no longer in a position to provide any previously delivered forms or
certificate (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
paragraph, a Foreign Lender shall not be required to deliver any form pursuant
to this paragraph that such Foreign Lender is not legally able to deliver.
(e) Each Lender (or Transferee) that is not a Foreign Lender (a
"Non-Foreign Lender") shall deliver, in the case of a U.S. Lender, to Cedar Fair
LP and the Administrative Agent and, in the case of a Canadian Lender, to Cedar
Fair LP and to the Canadian Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two original copies of U.S. Internal Revenue Service Form W-9, or any
subsequent version thereof or successors thereto, properly completed and duly
executed by such Non-Foreign Lender. Such forms shall be delivered by each
Non-Foreign Lender on or before the date it becomes a party to this Agreement
(or, in the case of any Participant, on or before the date such Participant
purchases the related participation). In addition, each Non-Foreign Lender shall
deliver such forms promptly upon the obsolescence or invalidity of any form
previously delivered by such Non-Foreign Lender. Each Non-Foreign Lender shall
promptly notify Cedar Fair LP and the Administrative Agent (or, in the case of a
Canadian Lender, the Canadian Administrative Agent) at any time it determines
that it is no longer in a position to provide any previously delivered form (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this paragraph, a Non-Foreign
Lender shall not be required to deliver any form pursuant to this paragraph that
such Non-Foreign Lender is not legally able to deliver.
(f) At the reasonable request of Cedar Fair LP, a Lender that is
entitled to an exemption from or reduction of non-U.S. withholding tax under the
law of the jurisdiction in which the Borrowers are located, or any treaty to
which such jurisdiction is a party, with respect to payments under this
Agreement shall deliver to Cedar Fair LP (with a copy to the relevant Agent), at
the time or times prescribed by applicable law, such properly completed and
executed
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documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate, provided that such Lender is
legally entitled to complete, execute and deliver such documentation and in such
Lender's judgment such completion, execution or submission would not materially
prejudice the legal position of such Lender.
(g) If any Agent or any Lender determines, in its sole discretion,
that it has received a refund of any Non-Excluded Taxes or Other Taxes as to
which it has been indemnified by the Borrowers or with respect to which the
Borrowers have paid additional amounts pursuant to this Section 4.10, it shall
pay over such refund to the Borrowers, or either of them (but only to the extent
of indemnity payments made, or additional amounts paid, by the Borrowers under
this Section 4.10 with respect to the Non-Excluded Taxes or Other Taxes giving
rise to such refund), net of all out-of-pocket expenses of such Agent or such
Lender and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided, that the
Borrowers, upon the request of such Agent or such Lender, agree to repay the
amount paid over to the Borrowers (plus any penalties, interest or other charges
imposed by the relevant Governmental Authority) to such Agent or such Lender in
the event such Agent or such Lender is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require any
Agent or any Lender to make available its tax returns (or any other information
relating to its taxes that it deems confidential) to the Borrowers or any other
Person.
(h) As used herein, "Qualifying Canadian Lender" means a Person that
becomes a Canadian Swing Line Lender or a Canadian Revolving Lender at a time
when no Event of Default has occurred and is continuing and that is either (i)
not a non-resident of Canada within the meaning of the Income Tax Act (Canada)
or (ii) an "authorized foreign bank" that is entering into this Agreement or
acquiring a participation hereunder and receiving all payments hereunder or
under any such participation in respect of its "Canadian banking business" as
both such terms are defined for the purposes of the Income Tax Act (Canada).
(i) The agreements in this Section shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
4.11. Indemnity. Each Borrower agrees to indemnify each Lender and to
hold each Lender harmless from any loss or expense that such Lender may sustain
or incur as a consequence of (a) default by such Borrower in making a borrowing
of, conversion into or continuation of Eurodollar Loans (or, in the case of the
Canadian Borrower, a BA Loan) after such Borrower has given a notice requesting
the same in accordance with the provisions of this Agreement, (b) default by
such Borrower in making any prepayment of or conversion from Eurodollar Loans
(or, in the case of the Canadian Borrower, a BA Loan) after such Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment of Eurodollar Loans by such Borrower on a day
that is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for
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herein (excluding, however, the Applicable Margin included therein, if any) over
(ii) the amount of interest (as reasonably determined by such Lender) that would
have accrued to such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the London interbank eurodollar market
(in the case of Eurodollar Loans) or the Canadian money markets (in the case of
BA Loans). A certificate as to any amounts payable pursuant to this Section
submitted to Cedar Fair LP (with a copy to the Administrative Agent) by any
Lender shall be conclusive in the absence of manifest error. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
4.12. Change of Lending Office. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 4.9 or 4.10(a)
with respect to such Lender, it will, if requested by Cedar Fair LP, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
or postpone any of the obligations of the Borrowers or the rights of any Lender
pursuant to Section 4.9 or 4.10(a).
4.13. Replacement of Lenders. The Borrowers shall be permitted to
replace any Lender that (a) requests reimbursement for amounts owing pursuant to
Section 4.9 or 4.10(a) or (b) defaults in its obligation to make Loans
hereunder, with a replacement financial institution; provided that (i) such
replacement does not conflict with any Requirement of Law, (ii) no Event of
Default shall have occurred and be continuing at the time of such replacement,
(iii) prior to any such replacement, such Lender shall have taken no action
under Section 4.12 so as to eliminate the continued need for payment of amounts
owing pursuant to Section 4.9 or 4.10(a), (iv) the replacement financial
institution shall purchase, at par, all Loans and other amounts owing to such
replaced Lender on or prior to the date of replacement, (v) the applicable
Borrower shall be liable to such replaced Lender under Section 4.11 if any
Eurodollar Loan owing to such replaced Lender shall be purchased other than on
the last day of the Interest Period relating thereto, (vi) the replacement
financial institution, if not already a Lender, shall be reasonably satisfactory
to the Administrative Agent, (vii) the replaced Lender shall be obligated to
make such replacement in accordance with the provisions of Section 11.6
(provided that the applicable Borrower shall be obligated to pay the
registration and processing fee referred to therein), (viii) until such time as
such replacement shall be consummated, the applicable Borrower shall pay all
additional amounts (if any) required pursuant to Section 4.9 or 4.10(a), as the
case may be, and (ix) any such replacement shall not be deemed to be a waiver of
any rights that the Borrowers, the Administrative Agent or any other Lender
shall have against the replaced Lender.
4.14. Evidence of Debt. (a) Each Lender shall maintain in accordance
with its usual practice an account or accounts evidencing Indebtedness of the
Borrowers to such Lender resulting from each Loan of such Lender from time to
time, including the amounts of principal and interest payable and paid to such
Lender from time to time under this Agreement.
(b) The Administrative Agent, on behalf of the U.S. Borrower, and the
Canadian Administrative Agent, on behalf of the Canadian Borrower, shall
maintain the Register pursuant
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to Section 11.6(b), and a sub-account therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder and any Note evidencing such
Loan, the Type of such Loan and each Interest Period applicable thereto, (ii)
the amount of any principal or interest due and payable or to become due and
payable from the U.S. Borrower or the Canadian Borrower, as applicable, to each
Lender hereunder and (iii) both the amount of any sum received by the
Administrative Agent hereunder from the U.S. Borrower, or by the Canadian
Administrative Agent from the Canadian Borrower, and each Lender's share
thereof.
(c) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 4.14(a) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the U.S. Borrower or the Canadian Borrower therein recorded;
provided, however, that the failure of any Lender, the Administrative Agent or
the Canadian Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation of the U.S.
Borrower or the Canadian Borrower, as applicable, to repay (with applicable
interest) the Loans made to the U.S. Borrower or the Canadian Borrower by such
Lender in accordance with the terms of this Agreement.
(d) Each of the U.S. Borrower and the Canadian Borrower agrees that,
upon the request to the Administrative Agent or the Canadian Administrative
Agent by any Lender, such Borrower will promptly execute and deliver to such
Lender a promissory note of such Borrower, evidencing any U.S. Term Loans,
Canadian Term Loans, U.S. Revolving Loans, Canadian Revolving Loans, U.S. Swing
Line Loans or Canadian Swing Line Loans, as the case may be, of such Lender,
substantially in the forms of Exhibit X-0, X-0, X-0, X-0, G-5 or G-6,
respectively (a "U.S. Term Note", "Canadian Term Note", "U.S. Revolving Note",
"Canadian Revolving Note", "U.S. Swing Line Note" or "Canadian Swing Line Note",
respectively and each individually, a "Note"), with appropriate insertions as to
date and principal amount.
4.15. Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for any Lender to make or maintain
Eurodollar Loans or BA Loans as contemplated by this Agreement, (a) the
commitment of such Lender hereunder to make (i) Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans or (ii)
BA Loans, continue BA Loans as such and convert Canadian Prime Rate Loans to BA
Loans shall forthwith be canceled and (b) such Lender's Loans then outstanding
as Eurodollar Loans or BA Loans, as the case may be, if any, shall be converted
automatically to Base Rate Loans or Canadian Prime Rate Loans, respectively, on
the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrowers shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 4.11.
SECTION 5. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make the Loans and issue or participate in the Letters of Credit, each
Borrower hereby represents and warrants to each Agent and each Lender that:
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5.1. Financial Condition. (a) The unaudited pro forma consolidated
balance sheet of Cedar Fair LP and its consolidated Subsidiaries as at the last
day of Fiscal Q2 2006 (including the notes thereto) (the "Pro Forma Balance
Sheet"), copies of which have heretofore been furnished to the Administrative
Agent and the Syndication Agent, has been prepared giving effect (as if such
events had occurred on such date) to (i) the consummation of the Transaction,
(ii) the Loans made on the Original Closing Date and the Loans to be made on the
Closing Date and, in each case, the use of proceeds thereof and (iii) the
payment of fees and expenses in connection with the foregoing. The Pro Forma
Balance Sheet has been prepared based on the best information reasonably
available to Cedar Fair LP as of the date of delivery thereof, and, subject to
the uncertainties that are typically inherent in such a projection, presents
fairly on a pro forma basis the estimated financial position of Cedar Fair LP
and its consolidated Subsidiaries as at the last day of Fiscal Q2 2006, assuming
that the events specified in the preceding sentence had actually occurred at
such date.
(b) The audited consolidated balance sheets of Cedar Fair LP and its
Subsidiaries and the Target and its Subsidiaries as at December 31, 2003,
December 31, 2004 and December 31, 2005, and the related consolidated statements
of income and of cash flows for the fiscal years ended on such dates, reported
on by and accompanied by an unqualified report from Deloitte and Touche LLP
(with respect to Cedar Fair LP and its Subsidiaries) or PricewaterhouseCoopers
(with respect to the Target and its Subsidiaries), present fairly the
consolidated financial condition of Cedar Fair LP and its Subsidiaries and, to
the knowledge of either Borrower, the Target and its Subsidiaries, as
applicable, as at such date, and the consolidated results of its operations and
its consolidated cash flows for the respective fiscal years then ended. The
unaudited consolidated balance sheet of Cedar Fair LP and its Subsidiaries and
the Target and its Subsidiaries as at the last day of Fiscal Q2 2006, and the
related unaudited consolidated statements of income and cash flows for the
three-month period ended on such date, present fairly the consolidated financial
condition of Cedar Fair LP and its Subsidiaries and, to the knowledge of either
Borrower, the Target and its Subsidiaries, as applicable, as at such date, and
the consolidated results of its operations and its consolidated cash flows for
the three-month period then ended (subject to normal year-end audit
adjustments). All such financial statements of Cedar Fair LP and its
Subsidiaries and, to the knowledge of either Borrower, of the Target and its
Subsidiaries, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by the aforementioned firm of accountants and
disclosed therein). No Group Member has any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives that are not reflected in the most recent financial statements
referred to in this paragraph, other than the Specified Hedge Agreements with
KeyBank National Association described in the definition of "Specified Hedge
Agreement" and any other Specified Hedge Agreement entered into in accordance
with the terms hereof. During the period from December 31, 2005 to and including
the date hereof there has been no Disposition by either Borrower or any of its
Subsidiaries or, to the knowledge of either Borrower, the Target or any of its
Subsidiaries of any material part of its business or property.
5.2. No Change. Since December 31, 2005, there has been no development
or event that has had or could reasonably be expected to have a Material Adverse
Effect.
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5.3. Corporate Existence; Compliance with Law. Each Group Member (a)
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation (or otherwise qualified as required by any
applicable Requirement of Law) and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification, except to the extent that the
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect and (d) is in compliance with all Requirements
of Law, except to the extent that the failure to comply therewith could not, in
the aggregate, reasonably be expected to have a Material Adverse Effect.
5.4. Power; Authorization; Enforceable Obligations. Each Loan Party
has the power and authority, and the legal right, to make, deliver and perform
the Loan Documents to which it is a party and, in the case of the Borrowers, to
obtain extensions of credit hereunder. Each Loan Party has taken all necessary
organizational action to authorize the execution, delivery and performance of
the Loan Documents to which it is a party and, in the case of the Borrowers, to
authorize the extensions of credit on the terms and conditions of this
Agreement. No consent or authorization of, filing with, notice to or other act
by or in respect of, any Governmental Authority or any other Person is required
in connection with the Transaction and the extensions of credit hereunder or
with the execution, delivery, performance, validity or enforceability of this
Agreement or any of the Loan Documents, except (i) consents, authorizations,
filings and notices described in Schedule 5.4, which consents, authorizations,
filings and notices have been obtained or made and are in full force and effect
and (ii) the filings referred to in Section 5.19. Each Loan Document has been
duly executed and delivered on behalf of each Loan Party party thereto. This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party party
thereto, enforceable against each such Loan Party in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
5.5. No Legal Bar. The execution, delivery and performance of this
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of any Group Member and will
not result in, or require, the creation or imposition of any Lien on any of
their respective properties or revenues pursuant to any Requirement of Law or
any such Contractual Obligation (other than the Liens created by the Security
Documents). No Requirement of Law or Contractual Obligation applicable to either
Borrower or any of its Subsidiaries could reasonably be expected to have a
Material Adverse Effect.
5.6. Litigation. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of either Borrower, threatened by or against any Group Member or against any of
their respective properties or revenues (a) with respect to any of the Loan
Documents or any of the transactions contemplated hereby or thereby, or (b) that
could reasonably be expected to have a Material Adverse Effect.
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5.7. No Default. No Group Member is in default under or with respect
to any of its Contractual Obligations in any respect that could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
5.8. Ownership of Property; Liens. Each Group Member has title in fee
simple to, or a valid leasehold interest in, all its real property, and good
title to, or a valid leasehold interest in, all its other property, and none of
such property is subject to any Lien except as permitted by Section 8.3, none of
which, individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
5.9. Intellectual Property. Except to the extent the same could not
reasonably be expected to have a Material Adverse Effect, (a) each Group Member
owns, or is licensed to use, all Intellectual Property necessary for the conduct
of its business as currently conducted; (b) no Group Member has knowledge of any
claim that has been asserted or is pending before any tribunal by any Person
challenging or questioning the use of any Intellectual Property or the validity
or effectiveness of any Intellectual Property, nor does either Borrower know of
any valid basis for any such claim; and (c) to the knowledge of the Group
Members, the use of Intellectual Property by each Group Member does not infringe
misappropriate, dilute, or otherwise violate the rights of any Person.
5.10. Taxes. Each Group Member has filed or caused to be filed all
Federal, state, Canadian, provincial, territorial and other material tax returns
that are required to be filed within the time periods required by applicable law
and has paid all taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Governmental Authority
(other than any taxes the amounts or validity of which are currently being
contested in good faith by appropriate proceedings and with respect to which
reserves in conformity with GAAP have been provided on the books of the
applicable Group Member), no tax Lien has been filed, and, to the knowledge of
either Borrower, no claim (other than those being contested as aforesaid) is
being asserted, with respect to any such tax, fee or other charge. Cedar Fair LP
is treated as an electing 1987 partnership within the meaning of Section
7704(g)(3) of the Code and not as an association taxable as a corporation under
subchapter C of the Code. Each Group Member has withheld or collected, and
remitted to the appropriate Governmental Authority when due, all taxes it is
required to withhold or collect and remit within the time periods required by
applicable law, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
5.11. Federal Regulations. No part of the proceeds of any Loans, and
no other extensions of credit hereunder, will be used for "buying" or "carrying"
any "margin stock" within the respective meanings of each of the quoted terms
under Regulation U as now and from time to time hereafter in effect or for any
purpose that violates the provisions of the Regulations of the Board. If
requested by any Lender or the Administrative Agent, the Borrowers will furnish
to the Administrative Agent and each Lender a statement to the foregoing effect
in conformity with the requirements of FR Form G-3 or FR Form U-1, as
applicable, referred to in Regulation U.
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5.12. Labor Matters. Except as, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against any Group Member pending or, to the knowledge of either
Borrower, threatened; (b) hours worked by and payment made to employees of each
Group Member have not been in violation of the Fair Labor Standards Act or any
other applicable Requirement of Law dealing with such matters; and (c) all
payments due from any Group Member on account of employee health and welfare
insurance have been paid or accrued as a liability on the books of the relevant
Group Member.
5.13. Pension and Benefit Plans. (a) Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period. No Borrower or any Commonly Controlled Entity has had a
complete or partial withdrawal from any Multiemployer Plan, and neither either
Borrower nor any Commonly Controlled Entity would become subject to any
liability under ERISA that would exceed $5,000,000 if either Borrower or any
such Commonly Controlled Entity were to withdraw completely from all
Multiemployer Plans as of the valuation date most closely preceding the date on
which this representation is made or deemed made. No such Multiemployer Plan is
in Reorganization or Insolvent.
(b) The Canadian Pension Plans are duly registered under the Income
Tax Act (Canada) and any other Requirement of Law which to the knowledge of the
Borrowers requires registration and no event has occurred which is reasonably
likely to cause the loss of such registered status. All material obligations, if
any, of each Group Member required to be performed pursuant to a Requirement of
Law in connection with the Canadian Pension Plans and the funding agreements
therefor have been performed in a timely fashion. There have been no improper
withdrawals or applications of the assets of the Canadian Pension Plans or the
Canadian Benefit Plans. Except as would not reasonably be expected to result in
a Material Adverse Effect, (i) there are no outstanding disputes concerning the
assets held under the funding agreements for the Canadian Pension Plans or the
Canadian Benefit Plans and (ii) each Canadian Pension Plan is funded to the
extent required by law both on an ongoing basis and on a solvency basis (using
actuarial methods and assumptions which are consistent with the valuations last
filed with the applicable Governmental Authorities and which are consistent with
generally accepted actuarial principles). No promises of benefit improvements
under the Canadian Pension Plans or the Canadian Benefit Plans have been made
except where such improvement could not reasonably be expected to have a
Material Adverse Effect. All contributions or premiums required to be made or
paid by each Group Member, if any, to the Canadian Pension Plans or the Canadian
Benefit Plans have been made or paid in a timely fashion in accordance with the
terms of such plans and all Requirements of Law. All employee contributions to
the Canadian Pension Plans or the Canadian Benefit Plans by way of authorized
payroll deduction or otherwise have been properly withheld or collected and
fully paid into such plans in a timely manner, other than any such withholdings,
collections or payments in an aggregate amount not greater than $1,000,000. All
material reports and disclosures relating to the Canadian Pension Plans required
by such plans and any Requirement of Law to be filed or distributed have been
filed or
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distributed in a timely manner. Each Group Member has withheld all employee
withholdings and has made all employer contributions to be withheld and made by
it pursuant to applicable law on account of Canadian Pension Plans, employment
insurance and employee income taxes, other than any such contributions and
withholdings in an aggregate amount not greater than $1,000,000.
5.14. Investment Company Act; Other Regulations. No Loan Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) that limits its ability to incur Indebtedness.
5.15. Subsidiaries. Except as disclosed to the Administrative Agent by
Cedar Fair LP in writing from time to time after the Closing Date, (a) Schedule
5.15 sets forth the name and jurisdiction of incorporation of each Subsidiary
and, as to each such Subsidiary, the percentage of each class of Capital Stock
owned by any Loan Party and (b) there are no outstanding subscriptions, options,
warrants, calls, rights or other agreements or commitments (other than stock
options granted to employees or directors and directors' qualifying shares) of
any nature relating to any Capital Stock of Cedar Fair LP or any Subsidiary,
except as created by the Loan Documents.
5.16. Use of Proceeds. The proceeds of the Original Term Loans were
used on the Original Closing Date to finance a portion of the Transaction and to
pay related fees and expenses. The proceeds of the Canadian Term Loans shall be
used on the Closing Date by the Canadian Borrower solely to return capital to
its parent and such proceeds shall in turn be used by such parent or by Cedar
Fair LP to prepay a portion of the term loan made under the Original Credit
Agreement on the Original Closing Date in a principal amount equal to the amount
of the Canadian Term Loan. The proceeds of the Revolving Loans shall be used to
pay fees and expenses related to this Agreement and shall be used, together with
the proceeds of the Swing Line Loans, and the Letters of Credit, for general
company purposes.
5.17. Environmental Matters. Except as, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by any
Group Member (the "Properties") do not contain, and have not previously
contained, any Materials of Environmental Concern in amounts or
concentrations or under circumstances that constitute or constituted a
violation of, or could give rise to liability under, any Environmental Law;
(b) no Group Member has received or is aware of any notice of
violation, alleged violation, non-compliance, liability or potential
liability regarding environmental matters or compliance with Environmental
Laws with regard to any of the Properties or the business operated by any
Group Member (the "Business"), nor does either Borrower have knowledge or
reason to believe that any such notice will be received or is being
threatened;
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(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location that could give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated, treated,
stored or disposed of at, on or under any of the Properties in violation
of, or in a manner that could give rise to liability under, any applicable
Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of either Borrower, threatened, under any
Environmental Law to which any Group Member is or will be named as a party
with respect to the Properties or the Business, nor are there any consent
decrees or other decrees, consent orders, administrative orders or other
orders, or other administrative or judicial requirements outstanding under
any Environmental Law with respect to the Properties or the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of any Group Member in connection with the Properties or
otherwise in connection with the Business, in violation of or in amounts or
in a manner that could give rise to liability under Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the Business; and
(g) no Group Member has assumed any liability of any other Person
under Environmental Laws.
5.18. Accuracy of Information, etc. No statement or information
contained in this Agreement, any other Loan Document, the Confidential
Information Memorandum or any other document, certificate or statement furnished
by or on behalf of any Loan Party to the any Agent or the Lenders, or any of
them, for use in connection with the transactions contemplated by this Agreement
or the other Loan Documents, contained as of the date such statement,
information, document or certificate was so furnished (or, in the case of the
Confidential Information Memorandum, as of the date of this Agreement), any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements contained herein or therein not misleading. The
projections and pro forma financial information contained in the materials
referenced above are based upon good faith estimates and assumptions believed by
management of Cedar Fair LP to be reasonable at the time made, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. As of the date hereof,
the representations and warranties contained in the Acquisition Documentation
are true and correct in all material respects. There is no fact known to any
Loan Party that could reasonably be expected to have a Material Adverse Effect
that has not been expressly disclosed herein, in the other Loan Documents, in
the Confidential Information Memorandum or in any other
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documents, certificates and statements furnished to any Agent and the Lenders
for use in connection with the transactions contemplated hereby and by the other
Loan Documents.
5.19. Security Documents. (a) Each Security Document is effective to
create in favor of the Collateral Agent for the benefit of the Secured Parties
specified therein, a legal, valid and enforceable security interest and Lien in
the Collateral described therein and proceeds thereof. In the case of the
Pledged Stock, as defined and described in the Guarantee and Collateral
Agreement, when stock certificates representing such Pledged Stock are delivered
to the Collateral Agent, and in the case of the other Collateral described in
the Security Documents, when financing statements and other filings specified on
Schedule 5.19(a) in appropriate form are filed in the offices specified on
Schedule 5.19(a), the Guarantee and Collateral Agreement and the other Security
Documents shall create a fully perfected Lien on, and security interest in, all
right, title and interest of the Loan Parties party thereto in such Collateral
and the proceeds thereof, as security for the Obligations referred to therein,
in each case prior and superior in right to any other Person (except, in the
case of Collateral other than Pledged Stock (which may be subject to Liens for
certain Statutory Prior Claims), Liens permitted by Section 8.3). As of the
Closing Date, there are no Statutory Prior Claims that encumber any Pledged
Stock, except for certain inchoate Canadian Statutory Prior Claims in respect of
amounts not yet past due that could affect the Capital Stock of Canada's
Wonderland Company prior to its amalgamation with 3147010 Nova Scotia Company.
(b) Each of the Mortgages is effective to create in favor of the
Collateral Agent, for the benefit of the Secured Parties specified therein, a
legal, valid and enforceable Lien on the Mortgaged Properties described therein
and proceeds thereof, and when the Mortgages are filed or registered in the
offices specified on Schedule 5.19(b), each such Mortgage shall create a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, as
security for the Obligations (as defined in the relevant Mortgage), in each case
prior and superior in right to any other Person, except Liens permitted by
Section 8.3. Schedule 1.1 lists, as of the Closing Date, each site of owned real
property and each leasehold interest in real property held by Cedar Fair LP or
any of its Subsidiaries.
5.20. Solvency. Each Loan Party is, and after giving effect to the
Acquisition and the incurrence of all Indebtedness and obligations being
incurred in connection herewith and therewith will be and will continue to be,
Solvent.
5.21. Regulation H. Except as disclosed to the Syndication Agent and
the Administrative Agent by Cedar Fair LP, no Mortgage encumbers improved real
property that is located in an area that has been identified by the Secretary of
Housing and Urban Development as an area having special flood hazards and in
which flood insurance has been made available under the National Flood Insurance
Act of 1968.
5.22. Certain Documents. The Borrowers have delivered to the
Syndication Agent and the Administrative Agent a complete and correct copy of
the Acquisition Documentation, including any amendments, supplements or
modifications with respect to any of the foregoing.
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5.23. Condition of the Property. The buildings, structures and
improvements on the Mortgaged Properties are structurally sound, in good repair
and free of material defects in materials and workmanship, ordinary wear and
tear excepted, and have been constructed and installed in substantial compliance
with the plans and specifications relating thereto, except, in each case, where
the failure to be so would not reasonably be expected to materially impair the
value of the applicable Mortgaged Property. Except as set forth in any
engineering reports with respect to the Mortgaged Properties delivered to the
Syndication Agent in connection with this Agreement, and except for malfunctions
consistent with the past practices of Cedar Fair LP and the Target and their
respective Subsidiaries, all major building systems located within such
buildings, structures and improvements (including, without limitation, the
heating and air conditioning systems, the electrical systems, plumbing systems,
and all liquid and solid waste disposal, septic and sewer systems) are in good
working order and condition or in the process of repair or replacement, except
where the failure to be so would not reasonably be expected to have a Material
Adverse Effect and, to the knowledge of each Borrower, are in compliance in all
material respects with all Requirements of Law. The Mortgaged Property is free
from material damage caused by fire or other casualty that is not in the process
of repair or restoration.
5.24. No Condemnation. No Group Member has received written notice
that a condemnation or expropriation proceeding has been commenced and to each
Borrower's knowledge, none is contemplated with respect to all or any portion of
the Mortgaged Property or for the relocation of roadways providing access to any
Mortgaged Property that, in any of the foregoing cases, could reasonably be
expected to cause a Material Adverse Effect.
5.25. Operating Permits. The Group Members have obtained all licenses,
permits, registrations, certificates and other approvals, governmental and
otherwise (including, without limitation, zoning, building code, land use and
environmental), reasonably necessary for the use, occupancy and operation of the
Mortgaged Property and the conduct of its business thereat, all of which are in
full force and effect as of the date hereof, except to the extent that the
failure to obtain the same could not reasonably be expected to materially impair
the use or value of the Mortgaged Property to which it relates. To each
Borrower's knowledge, no event or condition currently exists which could result
in the revocation, suspension, or forfeiture thereof.
5.26. Adequate Utilities. To each Borrower's knowledge, the Mortgaged
Property is adequately served by all utilities reasonably required for the
current or contemplated use thereof. All water and sewer systems are provided to
each Mortgaged Property by public utilities, and the Mortgaged Property has
accepted or is equipped to accept such utility services.
5.27. Public Access. All public roads and streets necessary for access
to each Mortgaged Property for the current or contemplated use thereof have been
completed and are physically and legally open for use by the public, except in
the case of repairs or replacements from time to time made to such streets and
roads, and except where the failure to have such access could not reasonably be
expected to materially impair the use or value of the Mortgaged Property to
which it relates.
5.28. Boundaries. Except as otherwise disclosed on the title insurance
policies in respect of the Mortgaged Property provided, or endorsed, to the
Collateral Agent on the Closing Date, as each such policy may thereafter be
endorsed to reflect the matters shown on the
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surveys of the Mortgaged Property, (i) all of the improvements, including
without limitation, rides, exhibits and other similar structures, material to
the use or operations of the Mortgaged Property to which it relates lie wholly
within the boundaries and building restriction lines of such Mortgaged Property,
and (ii) no material improvements, including without limitation, rides, exhibits
and other similar structures, encroach onto any easement affecting the Mortgaged
Property that could reasonably be expected to materially impair the use or value
of the Mortgaged Property to which is relates. Subject to disclosures made in
the applicable survey, no improvements on adjacent properties encroach upon the
Mortgaged Property that could reasonably be expected to materially impair the
use or value of the Mortgaged Property on which such encroachment exists.
5.29. Assessments. No unpaid assessments for public improvements or
assessments otherwise affecting any Mortgaged Property that are due and payable
as of the date hereof currently exist or, to each Borrower's knowledge, are
pending, nor are improvements contemplated to any Mortgaged Property that may
result in any such assessments, which in the aggregate could reasonably be
expected to have a Material Adverse Effect. Each of the Mortgaged Properties is
comprised of one or more parcels, each of which constitutes a separate tax lot
and none of which constitutes a portion of any other tax lot.
5.30. Leases. (a) Each Group Member has delivered to the Syndication
Agent complete and accurate copies of all leases with annual lease payments in
excess of $100,000 (including the Ground Lease), and no oral or written
agreements exist which terminate, modify or supplement such leases or the Ground
Lease, except as otherwise disclosed to the Syndication Agent in writing, (b)
each such lease (other than each such terminated lease, if any, referred to in
clause (a) hereof) is in full force and (other than with respect to the Ground
Lease, except to the extent that a Material Adverse Effect would not reasonably
be expected to arise as a result thereof) there are no defaults thereunder by
any Group Member or, to the knowledge of either Borrower, any other party
thereto.
5.31. Anti-Terrorism Laws. No Group Member or any Affiliate of any
Group Member 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 Group Member or Affiliate of any Group
Member 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;
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(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
(f) a Person or entity who is affiliated with a Person or entity
listed above.
No Group Member 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. CONDITIONS PRECEDENT
6.1. Conditions to Initial Extension of Credit. The effectiveness of
this Agreement and the amendment and restatement evidenced hereby, and the
agreement of each Lender to make the extension of credit requested to be made by
it on the Closing Date, is subject to the satisfaction, prior to or concurrently
with such effectiveness and the making of such extension of credit, of each of
the following conditions precedent:
(a) Credit Agreement; Guarantee and Collateral Agreement. The
Administrative Agent shall have received (i) this Agreement, or, in the
case of each Lender that is not an Original Lender, an Addendum, executed
and delivered by each Agent, the Borrowers and each Person that is an
Original Lender as of the Closing Date, (ii) the Guarantee and Collateral
Agreement, executed and delivered by the Borrowers, each Subsidiary
Guarantor and each Canadian Guarantor, (iii) an Acknowledgment and Consent
in the form attached to the Guarantee and Collateral Agreement, executed
and delivered by each Issuer (as defined therein), if any, that is not a
Loan Party, (iv) the Subordinated Intercompany Note, executed and delivered
by the Borrowers and each other Group Member, (v) the Control Agreements,
executed and delivered by each Loan Party party thereto, (vi) each other
Loan Document executed and delivered by each party thereto, and (vii) if
requested by any Lender pursuant to Section 4.14(d), a promissory note or
notes conforming to the requirements of such Section and executed and
delivered by a duly authorized officer of the relevant Borrower(s).
(b) [Reserved].
(c) Financial Statements. The Lenders shall have received the
financial statements described in Section 5.1, and such financial
statements shall not, in the reasonable judgment of the Lenders, reflect
any material adverse change in the consolidated financial condition of
Cedar Fair LP and its Subsidiaries or the Target and its Subsidiaries, as
reflected in the financial statements or projections contained in the
Confidential Information Memorandum (such receipt and judgment to be
evidenced by such Lender's execution of this Agreement or such Lender's
Addendum).
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(d) Lien Searches. The Administrative Agent shall have received the
results of a recent lien search in each of the jurisdictions where assets
of the Loan Parties are located, and such search shall reveal no liens on
any of the assets of the Loan Parties except for liens permitted by Section
8.3 or discharged on or prior to the Closing Date pursuant to documentation
satisfactory to the Administrative Agent.
(e) Fees. The Lenders and the Agents shall have received all fees
required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on
or before the Closing Date. All such amounts will be paid with proceeds of
Loans made on the Closing Date and will be reflected in the funding
instructions given by Cedar Fair LP to the Administrative Agent on or
before the Closing Date.
(f) Closing Certificate. The Administrative Agent shall have received
(i) a certificate of each Loan Party, dated the Closing Date, substantially
in the form of Exhibit H, with appropriate insertions and attachments
including the certificate of incorporation, formation or limited
partnership of each Loan Party certified by the relevant authority of the
jurisdiction of organization of such Loan Party, and (ii) a long form good
standing certificate (or, in connection with the Canadian Loan Parties, a
certificate of status or its equivalent) for each Loan Party from its
jurisdiction of organization.
(g) Legal Opinions. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P.,
counsel to Cedar Fair LP and its Subsidiaries, substantially in the
form of Exhibit I-1;
(ii) the legal opinion of Fasken Xxxxxxxxx DuMoulin LLP, Canadian
counsel to Cedar Fair LP and its Subsidiaries, substantially in the
form of Exhibit I-2;
(iii) the legal opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P.,
California counsel to Cedar Fair LP and its Subsidiaries,
substantially in the form of Exhibit I-3;
(iv) the legal opinion of Xxxxxx Xxxxxxxx & Xxxx LLP, Michigan
counsel to Cedar Fair LP and its Subsidiaries, substantially in the
form of Exhibit I-4;
(v) the legal opinion of Xxxxxxxxx & Xxxxxx, P.L.L.P., Minnesota
counsel to Cedar Fair LP and its Subsidiaries, substantially in the
form of Exhibit I-5;
(vi) the legal opinion of Xxxxx Xxxx LLP, Missouri counsel to
Cedar Fair LP and its Subsidiaries, substantially in the form of
Exhibit I-6;
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(vii) the legal opinion of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A.,
North Carolina counsel to Cedar Fair LP and its Subsidiaries,
substantially in the form of Exhibit I-7; and
(viii) the legal opinion of Xxxxxxxx, Xxxxxxxx & Xxxxxx, P.A.,
South Carolina counsel to Cedar Fair LP and its Subsidiaries,
substantially in the form of Exhibit I-8; and
(ix) the legal opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P., Ohio
counsel to Cedar Fair LP and its Subsidiaries, substantially in the
form of Exhibit I-9;
(x) the legal opinion of Xxxxxxxxxxx Xxxxx & Bubba, P.C.,
Pennsylvania counsel to Cedar Fair LP and its Subsidiaries,
substantially in the form of Exhibit I-10.
(xi) the legal opinion of Squire, Xxxxxxx & Xxxxxxx L.L.P.,
Virginia counsel to Cedar Fair LP and its Subsidiaries, substantially
in the form of Exhibit I-11;
(xii) the legal opinion of XxXxxxx Xxxxxx, Nova Scotia counsel to
Cedar Fair LP and its Subsidiaries, substantially in the form of
Exhibit I-12; and
(xiii) the legal opinion of Xxxxxx & Silver, Ltd., Nevada counsel
to Cedar Fair LP and its Subsidiaries, substantially in the form of
Exhibit I-13.
Each such legal opinion shall cover such other matters incident to the
transactions contemplated by this Agreement as the Administrative Agent may
reasonably require.
(h) Pledged Stock; Stock Powers; Pledged Notes. The Collateral Agent
shall have received (i) the certificates representing the shares of Capital
Stock pledged pursuant to the Guarantee and Collateral Agreement and the
Canadian Security Documents, together with an undated stock or other
transfer power for each such certificate executed in blank by a duly
authorized officer of the pledgor thereof and (ii) each promissory note (if
any) pledged to the Collateral Agent pursuant to the Guarantee and
Collateral Agreement or the Canadian Security Documents endorsed (without
recourse) in blank (or accompanied by an executed transfer form in blank)
by the pledgor thereof.
(i) Filings, Registrations and Recordings. Each document (including
any Uniform Commercial Code and Personal Property Security Act financing
statement) required by the Security Documents or under law or reasonably
requested by the Collateral Agent to be filed, registered or recorded in
order to create in favor of the Collateral Agent, for the benefit of the
applicable Secured Parties, a perfected Lien on the Collateral described in
such Security Documents, prior and superior in right to any other Person
(other than with respect to Liens expressly permitted by Section 8.3),
shall be in proper form for filing, registration or recordation, and, where
permitted by law and feasible, shall have been filed, recorded or
registered.
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(j) Mortgages, etc. (i) The Collateral Agent shall have received a
modification to all Mortgages (as defined in the Original Credit Agreement)
with respect to each Mortgaged Property, executed and delivered by a duly
authorized officer of each party thereto, and duly recorded or registered
in all applicable registry, land titles or other recording offices.
(ii) The Collateral Agent shall have received in respect of each
Mortgaged Property an endorsement to mortgagee's title insurance policy (or
policies) or marked up unconditional endorsement for such title insurance
delivered in connection with the Original Credit Agreement, amended to
reflect any Mortgage which has been changed, by way of amendment, amendment
and restatement or otherwise since the Original Closing Date (collectively,
the "Title Endorsements"). Each such Title Endorsement shall (A) be in an
amount satisfactory to the Collateral Agent; (B) insure that the Mortgage
insured thereby creates a valid first Lien on such Mortgaged Property free
and clear of all defects and encumbrances, except as disclosed therein;
provided that such exceptions are acceptable to the Collateral Agent; (C)
name the Collateral Agent for the benefit of the applicable Secured Parties
as the insured thereunder; (D) be in the form of ALTA Loan Policy - 1970
(Amended 10/17/70 and 10/17/84) (or equivalent policies and, in the case of
Mortgaged Property in the State of Michigan, Form 1992); (E) contain such
endorsements and affirmative coverage as the Collateral Agent may
reasonably request and (F) be issued by title companies satisfactory to the
Collateral Agent (including any such title companies acting as co-insurers
or reinsurers, at the option of the Collateral Agent). The Collateral Agent
shall have received evidence satisfactory to it that all premiums in
respect of each such Title Policy, all charges for mortgage recording tax,
and all related expenses, if any, have been paid.
(iii) The Collateral Agent shall have received with respect to
properties situated in the United States (A) a policy of flood insurance
that (1) covers any parcel of improved real property that is encumbered by
any Mortgage, (2) is written in an amount not less than the outstanding
principal amount of the indebtedness secured by such Mortgage that is
reasonably allocable to such real property or the maximum limit of coverage
made available with respect to the particular type of property under the
National Flood Insurance Act of 1968, whichever is less, and (3) has a term
ending not later than the maturity of the Indebtedness secured by such
Mortgage and (B) confirmation that the Borrowers have received the notice
required pursuant to Section 208(e)(3) of Regulation H of the Board.
(iv) The Collateral Agent shall have received a copy of all recorded
or registered documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in clause (ii) above and a copy of
all other material documents affecting the Mortgaged Properties, and shall
be reasonably satisfied with the same.
(k) Solvency Certificate. The Administrative Agent shall have received
a solvency certificate from the chief financial officer of Cedar Fair LP.
(l) Insurance. The Collateral Agent shall have received insurance
certificates satisfying the requirements of Section 5.2(b) of the Guarantee
and Collateral Agreement.
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(m) Capital Structure. The capital and ownership structure of Cedar
Fair LP and its Subsidiaries after giving effect to the Transaction shall
be as described in the Commitment Letter or otherwise reasonably
satisfactory to the Administrative Agent and the Syndication Agent.
(n) Patriot Act, etc. The Administrative Agent and the Syndication
Agent shall have received all documentation and other information required
by bank regulatory authorities under applicable "know-your-customer" and
anti-money laundering rules and regulations, including the USA Patriot Act.
(o) Material Adverse Effect. The Administrative Agent shall have
received a certificate of Cedar Fair LP, dated the Closing Date, certifying
that there has not occurred since December 31, 2005, any event,
development, condition or circumstance that, individually or in the
aggregate, has had or would reasonably be expected to have a material
adverse effect on the business, assets, property, condition (financial or
otherwise) or results of operations of Cedar Fair LP and its Subsidiaries,
taken as a whole.
6.2. Conditions to Each Extension of Credit. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) No Default. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing by and issuance of a Letter of Credit on behalf of either
Borrower hereunder shall constitute a representation and warranty by any
Borrower as of the date of such extension of credit that the conditions
contained in this Section 6.2 have been satisfied.
SECTION 7. AFFIRMATIVE COVENANTS
Each Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or Agent hereunder, such Borrower shall and shall cause each
of its Subsidiaries to:
7.1. Financial Statements. Furnish to the Administrative Agent, the
Canadian Administrative Agent and the Syndication Agent:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of Cedar Fair LP, a copy of the audited
consolidated balance sheet of Cedar Fair LP and its consolidated
Subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting
forth in each case in comparative form the figures for the previous year,
reported on without a
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"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Deloitte and Touche LLP or other
independent certified (or, if applicable, chartered) public accountants of
nationally recognized standing;
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of Cedar Fair LP, the unaudited consolidated balance sheet of Cedar
Fair LP and its consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and of cash flows
for such quarter and the portion of the fiscal year through the end of such
quarter, setting forth in each case in comparative form the figures for the
previous year, certified by a Responsible Officer as being fairly stated in
all material respects (subject to normal year-end audit adjustments); and
(c) for each Quarterly Distribution Date, a Quarterly Distribution
Certificate setting forth (i) in the case of each Quarterly Distribution
Date occurring in February (or, as the case may be (as set forth in the
definition of Quarterly Distribution Date), March) and November of each
year, Available Distributable Cash as of the Reference Date for such
Quarterly Distribution Date and (ii) in the case of such Quarterly
Distribution Date occurring in May and August of each year, (x) LTM EBITDA
for such Quarterly Distribution Date, minus (y) LTM CAPEX for such
Quarterly Distribution Date, in either case, such Quarterly Distribution
Certificate to be delivered not less than ten (10) days prior to the
Quarterly Distribution Date to which it relates.
(d) for each monthly fiscal period of Cedar Fair LP ending on or about
May 31, June 30, July 31, August 31, September 30 and October 31 of each
fiscal year of Cedar Fair LP a monthly performance report setting forth
total attendance, revenues, revenue per capita and EBITDA for such fiscal
month and showing a comparison to budget and to the same monthly period in
the prior year, such monthly report to be delivered within 25 days after
the end of each fiscal month for which such report is due.
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
7.2. Certificates; Other Information. Furnish to the Administrative
Agent, the Canadian Administrative Agent and the Syndication Agent (or, in the
case of clause (g), to the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 7.1(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 7.1, (i) a certificate of a Responsible Officer stating
that, to the best of each such
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Responsible Officer's knowledge, each Loan Party during such period has
observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Loan
Documents to which it is a party to be observed, performed or satisfied by
it, and that such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate and
(ii) in the case of quarterly or annual financial statements, (x) a
Compliance Certificate containing all information and calculations
necessary for determining compliance by each Group Member with the
provisions of this Agreement referred to therein as of the last day of the
fiscal quarter or fiscal year of Cedar Fair LP, as the case may be, and, if
applicable, for determining the Applicable Margins and Commitment Fee Rate,
and (y) to the extent not previously disclosed to the Administrative Agent,
a listing of any Intellectual Property acquired by any Loan Party since the
date of the most recent list delivered pursuant to this clause (y) (or, in
the case of the first such list so delivered, since the Closing Date);
(c) as soon as available, and in any event no later than 90 days after
the end of each fiscal year of Cedar Fair LP, a detailed consolidated
budget for the fiscal year following such fiscal year then ended (including
a projected consolidated balance sheet of Cedar Fair LP and its
Subsidiaries as of the end of the following fiscal year, the related
consolidated statements of projected cash flow, projected changes in
financial position and projected income and a description of the underlying
assumptions applicable thereto), and, as soon as available, significant
revisions, if any, of such budget and projections with respect to such
fiscal year (collectively, the "Projections"), which Projections shall in
each case be accompanied by a certificate of a Responsible Officer stating
that such Projections are based on reasonable estimates, information and
assumptions and that such Responsible Officer has no reason to believe that
such Projections are incorrect or misleading in any material respect;
(d) if Cedar Fair LP is not then a reporting company under the
Securities Exchange Act of 1934, as amended, within 45 days after the end
of each fiscal quarter of Cedar Fair LP (or 90 days, in the case of the
last fiscal quarter of any fiscal year), a narrative discussion and
analysis of the financial condition and results of operations of Cedar Fair
LP and its Subsidiaries for such fiscal quarter and for the period from the
beginning of the then current fiscal year to the end of such fiscal
quarter, as compared to the portion of the Projections covering such
periods and to the comparable periods of the previous year;
(e) no later than 10 Business Days prior to the effectiveness thereof,
copies of substantially final drafts of any proposed amendment, supplement,
waiver or other modification with respect to the Acquisition Documentation;
(f) within five days after the same are sent, copies of all financial
statements and reports that either Borrower sends to the holders of any
class of its debt securities or public equity securities and, within five
days after the same are filed, copies of all financial statements and
reports that either Borrower may make to, or file with, the SEC or any
other governmental or regulatory authority;
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(g) promptly upon the Canadian Administrative Agent's request, a copy
of each Canadian Benefit Plan and Canadian Pension Plan (or, where any such
Canadian Benefit Plan or Canadian Pension Plan is not in writing, a
complete description of all material terms thereof) then in effect and, if
applicable, all related trust agreements or other funding instruments and
all amendments thereto then in effect, and all written interpretations
thereof and written descriptions thereof that remain applicable and that
have been distributed to employees or former employees of the Group
Members; and
(h) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
7.3. Payment of Obligations. Pay, discharge or otherwise satisfy at or
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except, with respect to material
obligations the failure to pay or perform would not otherwise result in a
Default or Event of Default, where the amount or validity thereof is currently
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP with respect thereto have been provided on the books of the
relevant Group Member.
7.4. Maintenance of Existence; Compliance. (a) (i) Preserve, renew and
keep in full force and effect its organizational existence and (ii) take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business, except, in each case, as
otherwise permitted by Section 8.4 and except, in the case of clause (ii) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (b) comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, reasonably be expected to have a Material Adverse Effect.
7.5. Maintenance of Property; Insurance. (a) Keep all property useful
and necessary in its business in good working order and condition, ordinary wear
and tear excepted, except to the extent that failure to do so could not, in the
aggregate, reasonably be expected to have a material adverse effect on the
operations or value of any amusement park or material asset that comprises a
part thereof and (b) maintain with financially sound and reputable insurance
companies insurance on all such property in at least such amounts and against at
least such risks (but including in any event public liability, product
liability, business interruption, and flood insurance) as are usually insured
against in the same general area by companies engaged in the same or a similar
business and otherwise satisfying the criteria set forth in the Security
Documents.
7.6. Inspection of Property; Books and Records; Discussions. (a)
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and (b)
upon reasonable notice, permit representatives of any Lender to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Group Members with
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Responsible Officers or comparable officers of any other Group Member and with
their independent certified public accountants.
7.7. Notices. Promptly give notice to the Syndication Agent and the
Administrative Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of any Group Member or (ii) litigation, investigation or
proceeding that may exist at any time between any Group Member and any
Governmental Authority where the likelihood of an adverse determination is
not remote, that in either case, if not cured or if adversely determined,
as the case may be, could reasonably be expected to have a Material Adverse
Effect;
(c) any litigation or proceeding affecting any Group Member (i) in
which the amount involved is $5,000,000 or more and not covered by
insurance, (ii) in which injunctive or similar relief is sought or (iii)
which relates to any Loan Document;
(d) the following events, as soon as possible and in any event within
30 days after either Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
Cedar Fair LP or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan, or (iii) the equivalent of any event or occurrence
referred to in this paragraph under or with respect to any Canadian Pension
Plan or Canadian Benefit Plan; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 7.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Cedar Fair LP or the relevant Subsidiary
proposes to take with respect thereto.
7.8. Environmental Laws. (a) Comply with, and ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws,
and obtain and comply with and maintain, and ensure that all tenants and
subtenants obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws, except, in each case, to the extent the failure to do
so could not reasonably be expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws or reasonably requested by the Syndication Agent or the
Administrative Agent and promptly comply with all lawful orders and directives
of all Governmental Authorities regarding Environmental Laws, except to
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the extent the failure to do so could not reasonably be expected to have a
Material Adverse Effect.
7.9. Interest Rate Protection. In the case of Cedar Fair LP, within 90
days after the Closing Date, enter into, and thereafter maintain, Hedge
Agreements to the extent necessary to provide that at least 50% of the aggregate
principal amount of the Term Loans is subject to either a fixed interest rate or
interest rate protection for a period of not less than three years, which Hedge
Agreements shall have terms and conditions reasonably satisfactory to the
Syndication Agent.
7.10. Additional Collateral, etc. (a) With respect to any Property
acquired after the Closing Date by any Group Member (other than (x) any Property
described in paragraph (b), (c) or (d) below and (y) any Property subject to a
Lien expressly permitted by Section 8.3(g)) as to which the Collateral Agent,
for the benefit of the Secured Parties (in the case of any such Property owned
by a Group Member other than the Canadian Borrower, Canada's Wonderland Company
or an Excluded Foreign Subsidiary) or for the benefit of the Canadian Secured
Parties (in the case of any such Property owned by the Canadian Borrower,
Canada's Wonderland Company or an Excluded Foreign Subsidiary), does not have a
perfected Lien, promptly (i) execute and deliver to the Collateral Agent such
amendments to the Guarantee and Collateral Agreement and any other Security
Document or such other documents as the Collateral Agent reasonably deems
necessary or advisable to grant to the Collateral Agent, for the benefit of the
applicable Secured Parties (as set forth above), a security interest and Lien in
such Property, in each case, in accordance with the terms and conditions of the
applicable Security Documents and (ii) take all actions necessary or advisable
to grant to the Collateral Agent, for the benefit of the applicable Secured
Parties (as set forth above), a perfected first priority security interest and
Lien in such Property, including the filing of Uniform Commercial Code and
Personal Property Security Act financing statements in such jurisdictions as may
be required by the Guarantee and Collateral Agreement or any other Security
Document or by law or as may be requested by the Collateral Agent.
(b) With respect to any fee interest in any real property having a
value (together with improvements thereof) of at least $2,000,000 or any
leasehold interest with annual rental payments in excess of $250,000 or
constituting a ground lease or in respect of property on which an amusement,
water, theme or other like park is or is to be situated entered into or acquired
after the Closing Date by any Group Member (other than any such real property
subject to a Lien expressly permitted by Section 8.3(g)), promptly (i) execute
and deliver a first priority Mortgage or supplemental debenture, in favor of the
Collateral Agent, for the benefit of the Secured Parties (in the case of any
such Property owned by a Group Member other than the Canadian Borrower, Canada's
Wonderland Company or an Excluded Foreign Subsidiary) or in favor of the
Collateral Agent, for the benefit of the Canadian Secured Parties (in the case
of any such Property owned by the Canadian Borrower, Canada's Wonderland Company
or an Excluded Foreign Subsidiary), covering such real property, (ii) if
requested by the Collateral Agent, provide the applicable Secured Parties with
(x) title and extended coverage insurance covering such real property in an
amount at least equal to the purchase price of such real property (or such other
amount as shall be reasonably specified by the Collateral Agent) as well as a
current ALTA survey thereof, together with a surveyor's certificate and (y) any
consents or estoppels reasonably deemed necessary or advisable by the Collateral
Agent in connection with such Mortgage, each of the
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foregoing in form and substance reasonably satisfactory to the Collateral Agent
and (iii) if requested by the Collateral Agent, deliver to the Collateral Agent
legal opinions relating to the matters described above, which opinions shall be
in form and substance, and from counsel, reasonably satisfactory to the
Collateral Agent.
(c) With respect to any new Material Subsidiary (other than an
Excluded Foreign Subsidiary) created or acquired after the Closing Date by any
Group Member (which, for the purposes of this paragraph (c), shall include any
existing Material Subsidiary that ceases to be an Excluded Foreign Subsidiary or
any existing Subsidiary that becomes a Material Subsidiary), promptly (i)
execute and deliver to the Collateral Agent such amendments to the Guarantee and
Collateral Agreement and each other Security Document or such other documents as
the Collateral Agent reasonably deems necessary or advisable to grant to the
Collateral Agent, for the benefit of the U.S. Secured Parties, a perfected first
priority security interest and Lien in the Capital Stock of such new Subsidiary
that is owned by any Group Member, subject to Liens for Statutory Prior Claims,
(ii) deliver to the Collateral Agent the certificates representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the relevant Group Member, (iii) cause such new
Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and
any other document requested by the Collateral Agent to guarantee the
Obligations, (B) to take such actions necessary or advisable to grant to the
Collateral Agent for the benefit of the Secured Parties a perfected first
priority security interest and Lien in the Collateral, subject to Liens
expressly permitted by Section 8.3(g), with respect to such new Subsidiary,
including the filing of Uniform Commercial Code and Personal Property Security
Act financing statements in such jurisdictions as may be required by the
Guarantee and Collateral Agreement, any other Security Document or by law or as
may be requested by the Collateral Agent and (C) to deliver to the Collateral
Agent a certificate of such Subsidiary, substantially in the form of Exhibit H,
with appropriate insertions and attachments, and (iv) if requested by the
Collateral Agent, deliver to the Collateral Agent legal opinions relating to the
matters described above, which opinions shall be in form and substance, and from
counsel, reasonably satisfactory to the Collateral Agent.
(d) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Closing Date by any Group Member (other than by the Canadian
Borrower, Canada's Wonderland Company or any Group Member that is an Excluded
Foreign Subsidiary), promptly (i) execute and deliver to the Collateral Agent
such amendments to the Guarantee and Collateral Agreement and such other
Security Documents as the Collateral Agent deems necessary or advisable to grant
to the Collateral Agent, for the benefit of the Secured Parties, a perfected
first priority security interest and Lien in the Capital Stock of such new
Subsidiary that is owned by any such Group Member (provided that in no event
shall more than 65% of the total outstanding voting Capital Stock (and 100% of
any non-voting Capital Stock) of any such new Subsidiary be required to be so
pledged), subject to Liens securing Statutory Prior Claims which are paid when
due, or if not paid when due that are being contested in good faith by
appropriate proceedings and for which appropriate reserves have been
established, (ii) deliver to the Collateral Agent the certificates representing
such Capital Stock, together with undated stock or other transfer powers, in
blank, executed and delivered by a duly authorized officer of the relevant Group
Member, as the case may be, and take such other action as may be necessary or,
in the opinion of the Collateral Agent, desirable to perfect the Collateral
Agent's security interest and Lien therein, and (iii) if requested by the
Collateral Agent, deliver to the Collateral Agent legal opinions
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relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Collateral Agent.
(e) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Closing Date by any Group Member, promptly (i) execute and
deliver to the Collateral Agent (x) such amendments or supplements to the
Canadian Security Documents and such other Security Documents as the Collateral
Agent reasonably deems necessary or advisable to grant to the Collateral Agent,
for the benefit of the Canadian Secured Parties, a perfected first priority
security interest and Lien in the Capital Stock of such new Excluded Foreign
Subsidiary that is owned by any Group Member, subject to Liens securing
Statutory Prior Claims, (ii) deliver to the Collateral Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the relevant Group
Member, (iii) cause such new Excluded Foreign Subsidiary (A) to become a party
to the existing Canadian Security Documents or enter into new Canadian Security
Documents, as applicable, (B) to take such actions necessary or advisable to
grant to the Collateral Agent for the benefit of the Canadian Secured Parties a
perfected first priority security interest and Lien in the Collateral with
respect to such new Excluded Foreign Subsidiary, subject to Liens permitted by
Section 8.3, including the filing of Uniform Commercial Code and Personal
Property Security Act financing statements in such jurisdictions as may be
required by the Canadian Security Documents or by law or as may be requested by
the Collateral Agent, (C) to deliver to the Collateral Agent a certificate of
such Excluded Foreign Subsidiary, substantially in the form of Exhibit H, with
appropriate insertions and attachments and (D) to guarantee the Canadian
Obligations, and (iv) if requested by the Collateral Agent, deliver to the
Collateral Agent legal opinions relating to the matters described above, which
opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Collateral Agent.
7.11. Further Assurances. From time to time execute and deliver, or
cause to be executed and delivered, such additional instruments, certificates or
documents, and take all such actions, as the Administrative Agent, the
Syndication Agent or the Collateral Agent may reasonably request for the
purposes of implementing or effectuating the provisions of this Agreement and
the other Loan Documents, or of more fully perfecting or renewing the rights of
the Collateral Agent and the applicable Secured Parties with respect to the
Collateral (or with respect to any additions thereto or replacements or proceeds
thereof or with respect to any other property or assets hereafter acquired by
either Borrower or any Subsidiary which may be deemed to be part of the
Collateral) pursuant hereto or thereto. Upon the exercise by the Collateral
Agent or any other Secured Party of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording qualification or authorization of any Governmental
Authority, each Borrower will execute and deliver, or will cause the execution
and delivery of, all applications, certifications, instruments and other
documents and papers that the Collateral Agent or such Secured Party may be
required to obtain from either Borrower or any of its Subsidiaries for such
governmental consent, approval, recording, qualification or authorization.
7.12. Clean Down. The applicable Borrower shall prepay such portion of
the outstanding Revolving Loans (and refrain from requesting and/or drawing
further Revolving Loans under the Revolving Credit Facilities) as and to the
extent necessary to ensure that at least once during each fiscal year of Cedar
Fair LP there shall be a period of not less than thirty
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consecutive days in which the sum of (i) the aggregate unpaid principal balance
of the U.S. Revolving Loans, plus (ii) the sum of (a) the aggregate unpaid
principal balance of Canadian Revolving Loans denominated in Dollars and (b) the
Dollar Equivalent of the aggregate unpaid principal balance of Canadian
Revolving Loans denominated in Canadian Dollars, does not exceed $20,000,000.
7.13. Surveys. Within (i) 60 days after the Original Closing Date (or
in the case of (x) the Cedar Point and Xxxxxx Park properties, 90 days after the
Original Closing Date and (y) the Canada's Wonderland property, 90 days after
the Closing Date), furnish to the Administrative Agent and the title insurance
companies issuing the policies referred to in Section 6.1(j) (ii) (the "Title
Insurance Companies") boundary surveys of the sites of the Mortgaged Properties
certified to the Collateral Agent and Title Insurance Companies in a manner
reasonably satisfactory to them; provided that each such date shall be extended
by an additional 30 days in the sole discretion of the Administrative Agent, and
(ii) 210 days after the Original Closing Date (or, in the case of the Canada's
Wonderland property, 150 days after the Closing Date) furnish to the Collateral
Agent and Title Insurance Companies, maps or plats of an as-built survey of the
sites of the Mortgaged Properties certified to the Collateral Agent and the
Title Insurance Companies in a manner reasonably satisfactory to them, dated a
date satisfactory to the Collateral Agent and the Title Insurance Companies by
independent professional licensed land surveyors reasonably satisfactory to the
Collateral Agent and the Title Insurance Companies, which maps or plats and the
surveys on which they are based shall be made in accordance with the Minimum
Standard Detail Requirements for Land Title Surveys jointly established and
adopted by the American Land Title Association and the American Congress on
Surveying and Mapping in 2005 or, in the case of Mortgaged Properties located in
Canada, in accordance with standards established by the Ontario Land Surveyors,
as follows: items 1-4; 5(a) through 5(f); 5(g) (only including items that can be
determined on the basis of an aerial survey); 5(h) (the requirements in the
first and second sentences only); 5(i) (excluding fences and fire escapes) but
only to the extent that the requirements can be determined on the basis of an
aerial survey; 5(j) (only indicating access to the Property hereinafter
defined), 5(k), 5(l), (6), (7) and (8); and also including the following items
of Table A: items 1, 2, 3 and 4 and shows the size and location of items 6,
7(b)(1) (only to the extent those items are determined on the basis of an aerial
survey), 7(c) (only to the extent those items are determined on the basis of an
aerial survey), 9 (only including items that can be determined on the basis of
an aerial survey), 10, 14, 16 and 18.
7.14. Ground Lease. (a) Promptly and faithfully to cause Paramount
Parks, Inc. to observe, perform and comply in all material respects with all of
the terms, covenants and provisions of the Ground Lease; (b) cause Paramount
Parks, Inc. to refrain from doing anything and not do or permit any act, event
or omission as a result of which there is likely to occur a default or breach
under the Ground Lease; (c) cause Paramount Parks, Inc. to provide written
notice to the Collateral Agent of any default or breach under the Ground Lease
promptly upon learning of such default and immediately deliver to the Collateral
Agent a copy of such notice of default and all responses to such notice of
default and all other material instruments, notices or demands received by or
delivered to Paramount Parks, Inc. under or in connection with the Ground Lease;
and (d) cause Paramount Parks, Inc. to exercise all renewal options under the
Ground Lease in a timely manner in accordance with the terms and conditions
thereof. In the event of a default by Paramount Parks, Inc. under the Ground
Lease or the failure of Paramount Parks, Inc. to comply with its obligations
under this Section 7.14 (including the obligation to
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exercise all renewal options under the Ground Lease), then, in each and every
such case, the Collateral Agent may (but shall not be obligated to), in its sole
discretion and without notice to Paramount Parks, Inc., cause such default or
defaults by Paramount Parks, Inc. to be remedied and otherwise take or perform
such other actions as the Collateral Agent may reasonably deem necessary or
desirable as a result thereof or in connection therewith. The U.S. Borrower
shall cause Paramount Parks, Inc., on demand, to reimburse the Collateral Agent
for all advances reasonably made and expenses reasonably incurred by the
Collateral Agent in curing any such default(s) (including, without limitation,
reasonable attorney's fees), together with interest thereon from the date if
different until the same is paid in full to the Collateral Agent and all such
sums so advanced shall be secured hereby. The provisions of this Section are in
addition to any other right or remedy given to or allowed the Collateral Agent
under the Ground Lease or otherwise.
7.15. Acquisition Agreement Representations. To the extent reasonably
necessary to preserve or protect the rights of the Secured Parties in respect of
the Collateral, Cedar Fair LP covenants and agrees to enforce and pursue all
remedies reasonably available to it in connection with any breach of a
representation and warranty made by Seller under the Acquisition Agreement.
7.16. Tax Status (a) So long as the Canadian Borrower (or its
successor) is treated as a "disregarded entity" owned by Paramount Parks
Experience Inc. (or any successor), the Borrowers shall (and shall cause their
Affiliates to) manage their activities and carry out their operations so that
all interest paid by the Canadian Borrower (or its successor) under the Loan
Documents will satisfy the second sentence of paragraph 6 of Article 11 of the
Convention between the United States and Canada with respect to Taxes on Income
and on Capital.
(b) The Borrowers shall make commercially reasonable efforts to cause
Paramount Parks Experience Inc. to satisfy the provisions of Section
861(a)(1)(A) of the Code while any portion of the Canadian Loans are
outstanding, provided, however, that the Borrowers shall not be required to
cause Paramount Parks Experience Inc. to dispose of or reduce any assets or
gross income currently owned by it or to acquire or increase any assets or gross
income that it does not currently own or plan to produce.
(c) As soon as practicable after the end of each taxable year, the
Borrowers shall provide a written certificate to the Canadian Administrative
Agent (which shall provide a copy of such certificate to any Canadian Lender
upon request) regarding (i) whether it has complied with paragraph (a) of this
Section for such taxable year and (ii) whether the provisions of Section
861(a)(1)(A) of the Code have been satisfied for interest paid on the Canadian
Loans for such taxable year.
7.17. Restriction Agreement. Cedar Fair LP shall indemnify Collateral
Agent against losses incurred in connection with any claim made, pursuant to the
Restriction Agreement, by a holder of an undivided fee simple interest in the
real property subject to Restriction Agreement and will execute and deliver any
document that Collateral Agent may reasonably request to preserve the first lien
on the Mortgaged Property which, as of the Closing Date, was subject to the
Restriction Agreement.
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7.18. Post-Closing Covenant. Notwithstanding anything to the contrary
set forth in Section 6(b)(ii) of the Security Agreement (Canada), deliver to the
Collateral Agent as soon as reasonably practicable and, in any event, within 30
days following the Closing Date, a blocked account agreement, in form and
substance reasonably satisfactory to the Collateral Agent, in respect of all
deposit accounts held by the Canadian Guarantor in which closing balances as of
the end of any day exceed $100,000 in any individual account, or $500,000 in the
aggregate for all such accounts.
SECTION 8. NEGATIVE COVENANTS
Each Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or Agent hereunder, each Borrower shall not, and shall not
permit any of its Subsidiaries to, directly or indirectly:
8.1. Financial Condition Covenants. (a) Consolidated Leverage Ratio.
Permit the Consolidated Leverage Ratio as at the last day of any period of four
consecutive fiscal quarters of Cedar Fair LP ending with any fiscal quarter set
forth below to exceed the ratio set forth below opposite such fiscal quarter:
Fiscal Quarters Ending Consolidated
During the Following Periods: Leverage Ratio
----------------------------- --------------
Fiscal Q3 2006 through and including the last day of 6.75 to 1.00
Fiscal Q3 2007
Fiscal Q4 2007 through and including the last day of 5.75 to 1.00
Fiscal Q3 2008
Fiscal Q4 2008 through and including the last day of 5.50 to 1.00
Fiscal Q3 2009
Fiscal Q4 2009 through and including the last day of 5.25 to 1.00
Fiscal Q3 2010
Thereafter 5.00 to 1.00
; provided, however, that in the event that Cedar Fair LP completes an offering
of Capital Stock yielding Net Cash Proceeds to Cedar Fair LP of at least
$200,000,000 on or prior to the last day of Fiscal X0 0000, the Consolidated
Leverage Ratio shall be 6.15 to 1.00 for each fiscal quarter ending during the
period from the date of receipt of such proceeds through the last day of Fiscal
Q3 2007.
(b) Consolidated Fixed Charge Coverage Ratio. Permit the Consolidated
Fixed Charge Coverage Ratio for any period of four consecutive fiscal quarters
of Cedar Fair LP ending with any fiscal quarter set forth below to be less than
the ratio set forth below opposite such fiscal quarter:
Fiscal Quarters Ending Consolidated Fixed
During the Following Periods: Charge Coverage Ratio
----------------------------- ---------------------
Fiscal Q3 2006 through and including the last day of 1.05 to 1.00
Fiscal Q3 2007
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Thereafter 1.25 to 1.00
8.2. Indebtedness. Create, issue, incur, assume, become liable in
respect of or suffer to exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness (i) of Cedar Fair LP to any Subsidiary, (ii) of any
Subsidiary Guarantor to Cedar Fair LP or any other Subsidiary, (iii) of any
Excluded Foreign Subsidiary to any other Excluded Foreign Subsidiary, (iv)
of any Subsidiary of the Canadian Borrower to the Canadian Borrower and (v)
of the Canadian Borrower to any Subsidiary of the Canadian Borrower;
provided, however, that (A) (i) if the U.S. Borrower or any Subsidiary
Guarantor is the obligor on such Indebtedness and the payee is not the U.S.
Borrower or a Subsidiary Guarantor, such Indebtedness must be expressly
subordinated to the prior payment in full in cash of the U.S. Obligations
pursuant to the terms of the Subordinated Intercompany Note and (ii) if the
Canadian Borrower or any guarantor of the Canadian Obligations is the
obligor on such Indebtedness and the payee is not the Canadian Borrower or
a guarantor of the Canadian Obligations, such Indebtedness must be
expressly subordinated to the prior payment in full in cash of the Canadian
Obligations pursuant to the terms of the Subordinated Intercompany Note,
and (B) if any Loan Party is the payee on such Indebtedness, such
Indebtedness must be pledged as Collateral as contemplated by Section 7.10.
(c) Guarantee Obligations (i) incurred in the ordinary course of
business by the U.S. Borrower or any Subsidiary Guarantor of obligations of
the U.S. Borrower or any Subsidiary Guarantor and (ii) incurred in the
ordinary course of business by the Canadian Borrower or any Subsidiary
thereof of the obligations of the Canadian Borrower or any Subsidiary
thereof;
(d) Indebtedness outstanding on the date hereof and listed on Schedule
8.2(d) and any refinancings, refundings, renewals or extensions thereof
(without increasing, or shortening the maturity of, the principal amount
thereof);
(e) Indebtedness (including, without limitation, Capital Lease
Obligations) secured by Liens permitted by Section 8.3(g) in an aggregate
principal amount not to exceed $25,000,000 at any one time outstanding;
(f) Hedge Agreements permitted under Section 8.11;
(g) Subordinated Debt or Qualifying Senior Unsecured Debt of Cedar
Fair LP or any Subsidiary Guarantor the Net Cash Proceeds of which are
solely used to finance Permitted Acquisitions (including the payment of
related transaction fees and costs); provided that any such Subordinated
Debt shall not be guaranteed by any Group Member (other than guarantees by
any Subsidiary Guarantor, but only if and to the extent that any such
guarantee is subordinated to the Obligations and the guarantees of
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the Obligations on the same terms as such Subordinated Debt is subordinated
to the Obligations and the guarantees of the Obligations);
(h) Subordinated Debt or Qualifying Senior Unsecured Debt of Cedar
Fair LP or any Subsidiary Guarantor the Net Cash Proceeds of which are
applied solely to the prepayment of Loans in accordance with Section
4.2(b); provided that any such Subordinated Debt shall not be guaranteed by
any Group Member (other than guarantees by any Subsidiary Guarantor, but
only if and to the extent that such guarantee is subordinated to the
Obligations and the guarantees of the Obligations on the same terms as such
Subordinated Debt is subordinated to the Obligations and the guarantees of
the Obligations);
(j) earn-out obligations, deferred compensation and purchase price
adjustment obligations in connection with Permitted Acquisitions or
Dispositions permitted by Section 8.5; and
(k) additional unsecured Indebtedness of Cedar Fair LP or any of its
Subsidiaries in an aggregate principal amount (for Cedar Fair LP and all
Subsidiaries) not to exceed $25,000,000 at any one time outstanding.
8.3. Liens. Create, incur, assume or suffer to exist any Lien upon any
of its property, whether now owned or hereafter acquired, except for:
(a) Liens securing Statutory Prior Claims and Liens for taxes not yet
due or that are being contested in good faith by appropriate proceedings,
provided that adequate reserves with respect thereto are maintained on the
books of Cedar Fair LP or its Subsidiaries, as the case may be, in
conformity with GAAP;
(b) carriers', warehousemen's, mechanics', landlord's, materialmen's,
repairmen's or other like Liens arising in the ordinary course of business
that are not overdue for a period of more than 30 days or that are being
contested in good faith by appropriate proceedings, provided such Liens
have not been registered on title;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(d) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds, performance bonds and other obligations of a like nature incurred in
the ordinary course of business;
(e) zoning, entitlements and other land use and environmental
restrictions or regulations imposed by a Governmental Authority, easements,
rights-of-way, restrictions and other similar encumbrances incurred in the
ordinary course of business that, in the aggregate, are not substantial in
amount and that do not in any case materially and adversely affect the
value of the property subject thereto or materially interfere with the
ordinary conduct of the business of Cedar Fair LP or any of its
Subsidiaries;
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(f) Liens in existence on the date hereof listed on Schedule 8.3(f),
securing Indebtedness permitted by Section 8.2(d), provided that no such
Lien secures any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of Cedar Fair LP or any other
Subsidiary incurred pursuant to Section 8.2(e) to finance the acquisition
of fixed or capital assets, provided that (i) such Liens shall be created
upon or within 90 days following the acquisition of such fixed or capital
assets, (ii) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (iii) the amount of
Indebtedness secured thereby is not increased;
(h) Liens created pursuant to the Security Documents;
(i) any interest or title of a lessor under any lease entered into by
Cedar Fair LP or any Subsidiary in the ordinary course of its business and
covering only the assets so leased;
(j) any Lien on fixed assets owned by Cedar Fair LP or any Subsidiary
as a result of a Permitted Acquisition, so long as (i) such Lien is
released within one hundred eighty (180) days of such Permitted Acquisition
(unless the Borrowers shall have obtained the prior written consent of the
Administrative Agent and the Required Lenders or such Lien is otherwise
permitted pursuant to another clause of this Section 8.3) and (ii) such
Lien was not created at the time of or in contemplation of such Permitted
Acquisition;
(k) Liens which are set forth as exceptions to the Title Policies (as
defined in the Original Credit Agreement) provided such Liens are
acceptable to the Collateral Agent as provided in Section 6.1(j)(ii); and
(l) Liens not otherwise permitted by this Section so long as neither
(i) the aggregate outstanding principal amount of the obligations secured
thereby nor (ii) the aggregate fair market value (determined as of the date
such Lien is incurred) of the assets subject thereto exceeds (as to Cedar
Fair LP and all Subsidiaries) $10,000,000 at any one time.
8.4. Fundamental Changes. Enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or Dispose of, all or substantially all of its
property or business, except that:
(a) (i) any Subsidiary of the U.S. Borrower (other than the Canadian
Borrower or its Subsidiaries) may be merged, consolidated or amalgamated
with or into the U.S. Borrower (provided that the U.S. Borrower shall be
the continuing or surviving Person) or with or into any Subsidiary
Guarantor (provided that the Subsidiary Guarantor shall be the continuing
or surviving Person), (ii) any Subsidiary of the Canadian Borrower may be
merged, consolidated or amalgamated with or into the Canadian Borrower
(provided that, with respect to a merger or consolidation other than an
amalgamation, the Canadian Borrower shall be the continuing or surviving
Person) or with or into any
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Canadian Guarantor (provided that, with respect to a merger or
consolidation other than an amalgamation, the Canadian Guarantor shall be
the continuing or surviving Person, and, if an amalgamation has occurred,
the resulting Person shall have delivered to the Collateral Agent such
acknowledgements, confirmations, Security Documents and legal opinions and
shall have taken such other actions as are reasonably requested by the
Collateral Agent to ensure that the amalgamated Person has granted to the
Collateral Agent, for the benefit of the Canadian Secured Parties, a
perfected first priority Lien (except as otherwise permitted in Section
8.3) in its present and after-acquired property);
(b) (i) any Subsidiary of the U.S. Borrower (other than the Canadian
Borrower or its Subsidiaries) may Dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the U.S. Borrower or any Subsidiary
Guarantor and (ii) any Subsidiary of the Canadian Borrower may Dispose of
any or all of its assets (upon voluntary liquidation or otherwise) to the
Canadian Borrower or any Canadian Guarantor;
(c) (i) any Subsidiary of the U.S. Borrower (other than the Canadian
Borrower or its Subsidiaries) may merge with another Person to effect a
transaction permitted under Section 8.7(i) (provided that the U.S. Borrower
or a Subsidiary Guarantor shall be the continuing or surviving Person) and
(ii) any Subsidiary of the Canadian Borrower may merge or amalgamate with
another Person to effect a transaction permitted under Section 8.7(i)
(provided that, in the case of a merger, the Canadian Borrower or a
Canadian Guarantor shall be the continuing or surviving Person and in the
case of an amalgamation, the resulting Person shall have delivered to the
Collateral Agent such acknowledgements, confirmations, Security Documents
and legal opinions and shall have taken such other actions as are
reasonably requested by the Collateral Agent to ensure that the amalgamated
Person has granted to the Collateral Agent, for the benefit of the Canadian
Secured Parties, a perfected first priority Lien (except as otherwise
permitted in Section 8.3) in its present and after-acquired property); and
(d) transactions permitted under Section 8.5 shall be permitted.
8.5. Disposition of Property. Dispose of any of its property, whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 8.4(b);
(d) subject to Section 8.7, (i) the sale or issuance of the Capital
Stock of any Wholly Owned Subsidiary of the U.S. Borrower to the U.S.
Borrower or any Wholly Owned Subsidiary Guarantor and (ii) the sale or
issuance of the Capital Stock of any Wholly Owned Subsidiary of the
Canadian Borrower to the Canadian Borrower or any Canadian Guarantor that
is a Wholly Owned Subsidiary of the Canadian Borrower;
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(e) the Disposition of other property having a fair market value not
to exceed $250,000,000 in the aggregate; provided that (i) after giving
effect to such Disposition and any required prepayment of the Term Loans
and/or the Revolving Loans pursuant to Section 4.2(c), Cedar Fair LP shall
be in compliance, on a pro forma basis, with the covenants set forth in
Section 8.1 and (ii) at least 80% of the consideration received in respect
of such Disposition is cash; and
(f) the Disposition of other property having a fair market value not
to exceed $25,000,000 in the aggregate in any fiscal year of the Borrower;
provided that at least 80% of the consideration received in respect of such
Disposition is cash.
8.6. Restricted Payments. Declare or pay any dividends or
distributions (other than dividends or distributions payable solely in common
stock of the Person making such dividends or distributions) on, or make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, defeasance, retirement or other acquisition of,
any Capital Stock of any Group Member, whether now or hereafter outstanding, or
make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of either Borrower or any
Subsidiary (collectively, "Restricted Payments"), except that:
(a) any Subsidiary of the U.S. Borrower may make Restricted Payments
to the U.S. Borrower or any Wholly Owned Subsidiary Guarantor;
(b) any Subsidiary of the Canadian Borrower may make Restricted
Payments to the Canadian Borrower or any Canadian Guarantor that is a
Wholly Owned Subsidiary of the Canadian Borrower; and
(c) Cedar Fair LP may make Restricted Payments on each Quarterly
Distribution Date for which a Quarterly Distribution Certificate has been
delivered in accordance with Section 7.1(c); provided that (i) in the case
of each Quarterly Distribution Date occurring in February (or, as the case
may be (as set forth in the definition of Quarterly Distribution Date),
March) and November of each year, such Restricted Payment shall not exceed
Available Distributable Cash as of such Quarterly Distribution Date; (ii)
in the case of each Quarterly Distribution Date occurring in May and August
of each year, (A) LTM EBITDA minus LTM CAPEX for such Quarterly
Distribution Date is equal to or greater than Minimum LTM EBITDA minus LTM
CAPEX for such Quarterly Distribution Date and (B) such Restricted Payment
shall not exceed the Seasonal Adjusted Distribution Cap for such Quarterly
Distribution Date; (iii) no Default or Event of Default has occurred and is
continuing as of such Quarterly Distribution Date, both before and after
giving effect to such Restricted Payment; and (iv) no Distribution
Suspension Period is then in effect.
8.7. Investments. Make any advance, loan, extension of credit (by way
of guaranty or otherwise) or capital contribution to, or purchase any Capital
Stock, bonds, notes, debentures or other debt securities of, or any assets
constituting a business unit of, or make any other investment in, any Person
(all of the foregoing, "Investments"), except:
108
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 8.2;
(d) loans and advances to officers and employees of any Group Member
and the Managing General Partner in the ordinary course of business
(including for travel, entertainment and relocation expenses) in an
aggregate amount for all Group Members not to exceed $2,000,000 at any one
time outstanding;
(e) [Reserved];
(f) Investments in fixed or capital assets useful in the business of
Cedar Fair LP and any other Loan Party made by Cedar Fair LP or any of its
Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) (i) Cedar Fair LP's Investments in its Subsidiaries (and such
Subsidiaries' Investments in their Subsidiaries) identified on Schedule
5.15, as such amounts are outstanding as of the Closing Date, (ii)
intercompany Investments by any Group Member in Cedar Fair LP or any Person
that, prior to such Investment, is a Subsidiary Guarantor, and (iii)
Investments by the Canadian Borrower in any Canadian Guarantor;
(h) any endorsement of a check or other medium of payment for deposit
or collection through normal banking channels or any similar transaction in
the normal course of business;
(i) Permitted Acquisitions and Investments acquired as part of any
Permitted Acquisition or a part of a Disposition permitted under Section
8.5(e) or (f);
(j) Investments by Cedar Fair LP or a Subsidiary thereof in the
Canadian Borrower after the Closing Date in an aggregate amount not to
exceed $50,000,000;
(k) repurchases of Capital Stock of current and former employees and
officers of a Group Member or the Managing General Partner (or their family
members, trusts for their benefit or their estates) in an amount not to
exceed $5,000,000; and
(l) in addition to Investments otherwise expressly permitted by this
Section 8.7, Investments by Cedar Fair LP or any of its Subsidiaries in an
aggregate amount (valued at cost) not to exceed $25,000,000 during the term
of this Agreement.
8.8. Optional Payments of Certain Debt. Make or offer to make any
optional or voluntary payment, prepayment, repurchase or redemption of or
otherwise optionally or voluntarily defease or segregate funds with respect to
any unsecured Indebtedness (other than intercompany Indebtedness permitted by
Section 8.2(b) as long as no Event of Default has occurred and is continuing),
except, when no Default or Event of Default has occurred and is continuing, with
the Net Cash Proceeds of, without duplication, the sale or issuance of Capital
Stock of Cedar Fair LP or contributions to capital of Cedar Fair LP, but only to
the extent that
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such Net Cash Proceeds are not required to prepay Term Loans or Revolving Loans
pursuant to Section 4.2(a).
8.9. Transactions with Affiliates. Enter into any transaction,
including any purchase, sale, lease or exchange of property, the rendering of
any service or the payment of any management, advisory or similar fees, with any
Affiliate (other than Cedar Fair LP or any Wholly Owned Subsidiary Guarantor)
unless such transaction is (a) otherwise permitted under this Agreement, (b) in
the ordinary course of business of the relevant Group Member, and (c) upon fair
and reasonable terms no less favorable to the relevant Group Member than it
would obtain in a comparable arm's length transaction with a Person that is not
an 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 Group Member or any Affiliate of a Group Member, or (b) subject
to the other provisions of this Agreement, any transaction between a Borrower
and an Affiliate of such Borrower or a Subsidiary Guarantor if such Borrower
reasonably determines in good faith that such transaction is beneficial to such
Borrower and its Subsidiaries taken as a whole and that such transaction shall
not be entered into for the purpose of hindering the exercise by the
Administrative Agent or the other Secured Parties of their rights or remedies
under this Agreement and the other Loan Documents.
8.10. Sales and Leasebacks. Enter into any arrangement with any Person
providing for the leasing by any Group Member of real or personal property that
has been or is to be sold or transferred by such Group Member to such Person or
to any other Person to whom funds have been or are to be advanced by such Person
on the security of such property or rental obligations of such Group Member.
8.11. Hedge Agreements. Enter into any Hedge Agreement, except (a)
those required by Section 7.9, (b) Hedge Agreements entered into to hedge or
mitigate risks (including, without limitation, currency exchange risk) to which
Cedar Fair LP or any Subsidiary has actual exposure (other than those in respect
of Capital Stock) and (c) Hedge Agreements entered into in order to effectively
cap, collar or exchange interest rates (from fixed to floating rates, from
floating to fixed rates, from one floating rate to another floating rate or
otherwise) with respect to any interest-bearing liability or investment of Cedar
Fair LP or any Subsidiary, but, in each case, not for speculative purposes.
8.12. Changes in Fiscal Periods. Permit the fiscal year of Cedar Fair
LP to end on a day other than December 31 or change Cedar Fair LP's method of
determining fiscal quarters.
8.13. Negative Pledge Clauses. Enter into or suffer to exist or become
effective any agreement that prohibits, limits or imposes any condition upon the
ability of any Group Member to create, incur, assume or suffer to exist any Lien
upon any of its property or revenues, whether now owned or hereafter acquired,
to secure its obligations under the Loan Documents or any refinancing thereof
other than (a) this Agreement and the other Loan Documents and (b) any
agreements governing any purchase money Liens or Capital Lease Obligations
otherwise permitted hereby (in which case, any prohibition or limitation shall
only be effective against the assets financed thereby).
110
8.14. Clauses Restricting Subsidiary Distributions. Enter into or
suffer to exist or become effective any consensual encumbrance or restriction on
the ability of (a) any Subsidiary of the U.S. Borrower to (i) make Restricted
Payments in respect of any Capital Stock of such Subsidiary held by, or pay any
Indebtedness owed to, the U.S. Borrower or any Subsidiary Guarantor, (ii) make
loans or advances to, or other Investments in, the U.S. Borrower or any
Subsidiary Guarantor or (iii) transfer any of its assets to the U.S. Borrower or
any Subsidiary Guarantor or (b) any Subsidiary of the Canadian Borrower to (i)
make Restricted Payments in respect of any Capital Stock of such Subsidiary held
by, or pay any Indebtedness owed to, the Canadian Borrower or any Canadian
Guarantor, (ii) make loans or advances to, or other Investments in, the Canadian
Borrower or any Canadian Guarantor or (iii) transfer any of its assets to the
Canadian Borrower or any Canadian Guarantor, except, in the case of each of
clauses (a) and (b), for such encumbrances or restrictions existing under or by
reason of (A) any restrictions existing under the Loan Documents, (B) any
restrictions with respect to a Subsidiary imposed pursuant to an agreement that
has been entered into in connection with the Disposition of all or substantially
all of the Capital Stock or assets of such Subsidiary permitted hereby, and (B)
customary restrictions on transfer in connection with purchase money security
interests and Capital Lease Obligations otherwise permitted under this Agreement
(provided that such restrictions shall be limited to the assets that are the
subject of such purchase money security interest or Capital Lease Obligation).
8.15. Lines of Business. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which Cedar Fair LP and
its Subsidiaries are engaged on the Closing Date or that are reasonably related
thereto.
8.16. Amendments to Acquisition Documentation. (a) Amend, supplement
or otherwise modify (pursuant to a waiver or otherwise) the terms and conditions
of the indemnities and licenses furnished to Cedar Fair LP or any of its
Subsidiaries pursuant to the Acquisition Documentation such that after giving
effect thereto such indemnities or licenses shall be materially less favorable
to the interests of the Loan Parties or the Lenders with respect thereto or (b)
otherwise amend, supplement or otherwise modify the terms and conditions of the
Acquisition Documentation or any such other documents except for any such
amendment, supplement or modification that (i) becomes effective after the
Closing Date and (ii) could not reasonably be expected to have a Material
Adverse Effect.
8.17. Amendment to Ground Lease. Amend, terminate, supplement or
otherwise modify the terms of the Ground Lease, unless any such amendment,
termination, supplement or modification is approved by the Administrative Agent
and the Syndication Agent in their reasonable discretion.
SECTION 9. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) either Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
either Borrower shall fail to make a Disposition Repayment Offer, or pay
the amounts required to be paid pursuant thereto; or either Borrower shall
fail to pay any interest on any Loan
111
or Reimbursement Obligation, or any other amount payable hereunder or under
any other Loan Document, within five days after any such interest or other
amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made; or
(c) (i) any Loan Party shall default in the observance or performance
of any agreement contained in Section 4.2(c)(ii), clause (i) or (ii) of
Section 7.4(a) (with respect to the Borrowers only), Section 7.7(a) or
Section 8 of this Agreement or (ii) an "Event of Default" under and as
defined in any Mortgage shall have occurred and be continuing; or
(d) any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section),
and, where capable of being remedied, such default shall continue
unremedied for a period of 30 days; or
(e) any Group Member (i) defaults in making any payment of any
principal of any Indebtedness (including any Guarantee Obligation, but
excluding the Loans) on the scheduled or original due date with respect
thereto; or (ii) defaults in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created; or (iii) defaults
in the observance or performance of any other agreement or condition
relating to any such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or to become
subject to a mandatory offer to purchase by the obligor thereunder or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable; provided, that a default, event or condition described in
clause (i), (ii) or (iii) of this paragraph (e) shall not at any time
constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii)
of this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the
aggregate $15,000,000; or
(f) (i) any Group Member shall commence any case, proceeding or other
action (A) under any existing or future Insolvency Law or similar law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a bankrupt or
insolvent, or seeking reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with respect
112
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Group Member shall make a general
assignment for the benefit of its creditors; or (ii) there shall be
commenced against any Group Member any case, proceeding or other action of
a nature referred to in clause (i) above that (A) results in the entry of
an order for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of at least 60 days; or
(iii) there shall be commenced against any Group Member any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part
of its assets that results in the entry of an order for any such relief
that shall not have been vacated, discharged, or stayed or bonded pending
appeal within 60 days from the entry thereof; or (iv) any Group Member
shall take any action in furtherance of, or indicating its consent to,
approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) any Group Member shall generally not, or shall
be unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of any
Group Member or any Commonly Controlled Entity, (iii) a Reportable Event
shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is reasonably likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v)
any Group Member or any Commonly Controlled Entity shall, or reasonably is
likely to, incur any liability in connection with a withdrawal from, or the
Insolvency or Reorganization of, a Multiemployer Plan, (vi) any other event
or condition shall occur or exist with respect to a Plan, (vii) any Loan
Party terminates any applicable Canadian Pension Plan or Canadian Benefit
Plan, (viii) any event providing grounds to terminate or wind up a Canadian
Pension Plan or Canadian Benefit Plan in whole or in part by order of any
applicable regulatory authority shall occur, (ix) any event or condition
occurs which would permit the applicable regulator to appoint a trustee or
similar Person to administer a Canadian Pension Plan or Canadian Benefit
Plan, or (x) any Loan Party shall fail to make any contributions when due
to a Canadian Pension Plan, a Canadian Benefit Plan or a Canadian
multi-employer pension plan; and in each case in clauses (i) and (iii)
through (x) above, such event or condition, together with all other such
events or conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) one or more judgments or decrees shall be entered against any
Group Member involving in the aggregate a liability (not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $10,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or
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(i) any of the Security Documents shall cease, for any reason, to be
in full force and effect, or any Loan Party shall so assert, or any Lien
created by any of the Security Documents shall cease to be enforceable and
of the same effect and priority purported to be created thereby; or
(j) the guarantee contained in Section 2 of the Guarantee and
Collateral Agreement or Section 2 of the Canadian Guarantee Agreement shall
cease, for any reason, to be in full force and effect or any Group Member
shall so assert; or
(k) (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than any trustee or other fiduciary holding
securities under an employee benefit plan of the Group Members or the
Current Holder Group, shall become, or obtain rights (whether by means or
warrants, options or otherwise) to become, the "beneficial owner" (as
defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act), directly or
indirectly, of more than 40% of the economic or voting interest in the
outstanding Capital Stock of Cedar Fair LP; (ii) the holders of Capital
Stock 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 Capital Stock 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 51% of the voting
power of the Capital Stock of Cedar Fair LP or such surviving or resulting
entity (or parent corporation) outstanding after such merger or
consolidation; (iii) the holders of Capital Stock in either Borrower shall
approve a plan of complete liquidation of such Borrower or an agreement or
agreements for the sale or disposition by such Borrower of all or
substantially all of the assets of such Borrower; or (iv) Cedar Fair LP
shall cease to own, directly or indirectly, 100% of the beneficial
ownership (as defined in Rules 13(d)-3 and 13(d)-5 under the Exchange Act)
of the economic and voting interest of the Canadian Borrower; or
(l) any Subordinated Debt or the guarantees thereof shall cease, for
any reason, to be validly subordinated to the Obligations or the
obligations of the Subsidiary Guarantors under the Guarantee and Collateral
Agreement and the Canadian Guarantors under the other Security Documents in
respect thereof, as the case may be, as provided in any Subordinated Debt
Indenture or any other relevant document, or any Loan Party, the trustee in
respect of any Subordinated Debt or the holders of at least 25% in
aggregate principal amount of such Subordinated Debt shall so assert;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to either Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) shall immediately
become due and payable, and (B) if such event is any other Event of Default,
either or both of the following actions may be taken: (i) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to each Borrower
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declare the Revolving Commitments to be terminated forthwith, whereupon the
Revolving Commitments shall immediately terminate; and (ii) with the consent of
the Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to each Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement and the other Loan Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) to be due and payable forthwith, whereupon the same shall
immediately become due and payable. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of an
acceleration pursuant to this paragraph, the Borrowers shall at such time
deposit in an interest-bearing cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit, with interest accruing thereon at the
Administrative Agent's prevailing rates for deposits of comparable amount,
currency and term. Amounts held in such cash collateral account shall be applied
by the Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay other
obligations of the Borrowers hereunder and under the other Loan Documents and
any Specified Agreements. After all such Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other obligations of the Borrowers hereunder and under the other Loan
Documents and any Specified Agreements shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to Cedar Fair
LP (or such other Person as may be lawfully entitled thereto). Except as
expressly provided above in this Section, presentment, demand, protest and all
other notices of any kind are hereby expressly waived by the Borrowers.
SECTION 10. THE AGENTS
10.1. Appointment. Each Lender (and, if applicable, each other Secured
Party) hereby irrevocably designates and appoints each Agent as the agent of
such Lender (and, if applicable, each other Secured Party) under this Agreement
and the other Loan Documents, and each such Lender irrevocably authorizes such
Agent, in such capacity, to take such action on its behalf under the provisions
of this Agreement and the other Loan Documents and to exercise such powers and
perform such duties as are expressly delegated to such Agent by the terms of
this Agreement and the other Loan Documents, together with such other powers as
are reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender or other Secured Party, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against any Agent.
10.2. Delegation of Duties. Each Agent may execute any of its duties
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
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10.3. Exculpatory Provisions. Neither any Agent nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates shall be (i) liable for any action lawfully taken or omitted to be
taken by it or such Person under or in connection with this Agreement or any
other Loan Document (except to the extent that any of the foregoing are found by
a final and nonappealable decision of a court of competent jurisdiction to have
resulted from its or such Person's own gross negligence or willful misconduct)
or (ii) responsible in any manner to any of the Lenders or any other Secured
Party for any recitals, statements, representations or warranties made by any
Loan Party or any officer thereof contained in this Agreement or any other Loan
Document or any Specified Agreement or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agents under
or in connection with, this Agreement or any other Loan Document or any
Specified Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document or
any Specified Agreement or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document or any Specified Agreement, or to inspect
the properties, books or records of any Loan Party.
10.4. Reliance by Agents. Each Agent shall be entitled to rely, and
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including counsel to
the Borrowers), independent accountants and other experts selected by such
Agent. The Administrative Agent or the Canadian Administrative Agent may deem
and treat the payee of any Note as the owner thereof for all purposes unless a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent or the Canadian Administrative Agent, as
applicable. Each Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders (or, if so specified
by this Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense that may be incurred by it by reason of taking or continuing to take any
such action. The Agents shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Loan Documents in
accordance with a request of the Required Lenders (or, if so specified by this
Agreement, all Lenders), and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Lenders and all future holders of
the Loans and all other Secured Parties.
10.5. Notice of Default. No Agent shall be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent has received notice from a Lender or Cedar Fair LP referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, the Administrative Agent shall give notice thereof to
the Lenders. The Administrative Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Lenders (or, if so specified by this Agreement, all Lenders or any other
instructing group of Lenders specified by
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this Agreement); provided that unless and until the Administrative Agent shall
have received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Secured Parties.
10.6. Non-Reliance on Agents and Other Lenders. Each Lender (and, if
applicable, each other Secured Party) expressly acknowledges that neither the
Agents nor any of their respective officers, directors, employees, agents,
attorneys-in-fact or affiliates have made any representations or warranties to
it and that no act by any Agent hereafter taken, including any review of the
affairs of a Loan Party or any affiliate of a Loan Party, shall be deemed to
constitute any representation or warranty by any Agent to any Lender or any
other Secured Party. Each Lender (and, if applicable, each other Secured Party)
represents to the Agents that it has, independently and without reliance upon
any Agent or any other Lender or any other Secured Party, and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of the Loan Parties and their affiliates
and made its own decision to make its Loans hereunder and enter into this
Agreement or any Specified Agreement. Each Lender (and, if applicable, each
other Secured Party) also represents that it will, independently and without
reliance upon any Agent or any other Lender or any other Secured Party, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents or
any Specified Agreement, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of the Loan Parties and their affiliates. Except
for notices, reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Administrative Agent
shall not have any duty or responsibility to provide any Lender or any other
Secured Party with any credit or other information concerning the business,
operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Group Member or any affiliate of a Group Member that may
come into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or affiliates. Each of the
Syndication Agent and the Canadian Administrative Agent shall not have any duty
or responsibility to provide any Lender or any other Secured Party with any
credit or other information concerning the business, operations, property,
condition (financial or otherwise), prospects or creditworthiness of any Group
Member or any affiliate of a Group Member that may come into the possession of
the Syndication Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
10.7. Indemnification. The Lenders agree to indemnify each Agent in
its capacity as such (to the extent not reimbursed by the Borrowers and without
limiting the obligation of the Borrowers to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is sought
after the date upon which the Commitments shall have terminated and the Loans
shall have been paid in full, ratably in accordance with such Aggregate Exposure
Percentages immediately prior to such date), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(whether before or after the payment of the Loans) be imposed on, incurred by or
asserted against such Agent in any way relating to or arising out of,
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the Commitments, this Agreement, any of the other Loan Documents, any Specified
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by such Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from such Agent's gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, if the Internal Revenue Service or any other Governmental Authority
asserts a claim that any Agent did not properly withhold tax from amounts paid
to or for the account of any Lender (because the appropriate form was not
delivered, was not properly executed, or because such Lender failed to notify
such Agent of a change in circumstances which rendered the exemption from, or
reduction of, withholding tax ineffective, or for any other reason) such Lender
shall indemnify the Agents fully, on an after-tax basis, for all amounts paid,
directly or indirectly, by the Agents as tax or otherwise, including penalties
and interest, together with all related costs and expenses (including taxes, if
any). The agreements in this Section shall survive the payment of the Loans and
all other amounts payable hereunder.
10.8. Agent in Its Individual Capacity. Each Agent and its affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender",
"Lenders", "Secured Party" and "Secured Parties" shall include each Agent in its
individual capacity.
10.9. Successor Administrative Agent. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders and the Cedar
Fair LP. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Loan Documents, then the Required Lenders shall
appoint from among the Secured Parties a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 9(a) or Section
9(f) with respect to either Borrower shall have occurred and be continuing) be
subject to approval by Cedar Fair LP (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Administrative Agent by the date that is 10 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Required Lenders appoint a
successor agent as provided for above. The Syndication Agent may, at any time,
by notice to the Lenders and the Administrative Agent, resign as Syndication
Agent hereunder, whereupon the duties, rights, obligations and responsibilities
of the Syndication Agent hereunder shall automatically be assumed by, and inure
to the benefit of, the Administrative Agent (or, if there is
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no Administrative Agent at such time, to the Lenders as contemplated by the
preceding sentence), without any further act by the Syndication Agent, the
Administrative Agent or any Lender. After any retiring Administrative Agent's
(or Syndication Agent's) resignation as Administrative Agent (or Syndication
Agent), the provisions of this Section 10 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent (or
Syndication Agent) under this Agreement and the other Loan Documents.
10.10. Successor Canadian Administrative Agent. The Canadian
Administrative Agent may resign as Canadian Administrative Agent upon 10 days'
notice to the Lenders and each Borrower. If the Canadian Administrative Agent
shall resign as Canadian Administrative Agent under this Agreement and the other
Loan Documents, then the Required Lenders shall appoint from among the Secured
Parties a successor agent for the Lenders, which successor agent shall (unless
an Event of Default under Section 9(a) or Section 9(f) with respect to any
Borrower shall have occurred and be continuing) be subject to approval by the
Borrowers (which approval shall not be unreasonably withheld or delayed),
whereupon such successor agent shall succeed to the rights, powers and duties of
the Canadian Administrative Agent, and the term "Canadian Administrative Agent"
shall mean such successor agent effective upon such appointment and approval,
and the former Canadian Administrative Agent's rights, powers and duties as
Canadian Administrative Agent shall be terminated, without any other or further
act or deed on the part of such former Canadian Administrative Agent or any of
the parties to this Agreement or any holders of the Loans. If no successor agent
has accepted appointment as Canadian Administrative Agent by the date that is 10
days following a retiring Canadian Administrative Agent's notice of resignation,
the retiring Canadian Administrative Agent's resignation shall nevertheless
thereupon become effective and the Canadian Lenders shall assume and perform all
of the duties of the Canadian Administrative Agent hereunder until such time, if
any, as the Required Lenders appoint a successor agent as provided for above.
After any retiring Canadian Administrative Agent's resignation as Canadian
Administrative Agent, the provisions of this Section 10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Canadian Administrative Agent under this Agreement and the other Loan Documents.
10.11. Agents Generally. Except as expressly set forth herein, no
Agent shall have any duties or responsibilities hereunder in its capacity as
such.
10.12. The Lead Arrangers and Co-Documentation Agents. The Lead
Arrangers, in their capacity as such, shall have no duties or responsibilities,
and shall incur no liability, under this Agreement and other Loan Documents. The
Co-Documentation Agents, in their capacity as such, shall have no duties or
responsibilities, and shall incur no liability, under this Agreement and other
Loan Documents.
10.13. No Reliance on Administrative Agent's, Canadian Administrative
Agent's and Syndication Agent's Customer Identification Program. Each Lender
acknowledges and agrees that neither such Lender, nor any of its Affiliates,
participants or assignees, may rely on the Administrative Agent, the Canadian
Administrative Agent or the Syndication Agent to carry out such Lender's or its
Affiliates, 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
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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 the 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.
10.14. USA Patriot Act. Each lender or assignee or participant of a
Lender 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, and (ii) subject to
supervision by a banking authority regulating such affiliated depository
institution or foreign bank) shall deliver to the Administrative Agent and the
Syndication Agent the certification, or, if applicable, recertification,
certifying that such Lender 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.
SECTION 11. MISCELLANEOUS
11.1. Amendments and Waivers. Neither this Agreement, any other Loan
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 11.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may,
or, with the written consent of the Required Lenders, the Administrative Agent
and each Loan Party party to the relevant Loan Document may, from time to time,
(a) enter into written amendments, supplements or modifications hereto and to
the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of the Loan Parties hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall (i) forgive the principal amount or extend the
final scheduled date of maturity of any Loan, extend the scheduled date or
reduce the amount of any amortization payment in respect of any Term Loan under
Section 2.3, reduce the stated rate of any interest or fee payable hereunder
(except (x) in connection with the waiver of applicability of any post-default
increase in interest rates, which waiver shall be effective with the consent of
the Majority Facility Lenders of each adversely affected Facility and (y) that
any amendment or modification of defined terms used in the financial covenants
in this Agreement shall not constitute a reduction in the rate of interest or
fees for purposes of this clause (i)) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender's Revolving Commitment, in each case without the written consent of each
Lender directly affected thereby; (ii) eliminate or reduce the voting rights of
any Lender under this Section 11.1 without the written consent of such Lender;
(iii) reduce any percentage specified in the definition of Required Lenders,
consent to the assignment or transfer by either Borrower of any of its rights
and obligations under this Agreement and the other Loan Documents, release all
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or substantially all of the Collateral or release any Subsidiary Guarantor from
its obligations under the Guarantee and Collateral Agreement (other than as
otherwise permitted hereby or thereby), in each case without the written consent
of all Lenders; (iv) increase the U.S. L/C Sub-Commitment or the Canadian L/C
Sub-Commitment, in each case without the written consent of the Majority
Facility Lenders with respect to the applicable Revolving Credit Facility and
each applicable Issuing Lender; (v) increase the U.S. Swing Line Sub-Commitment
or the Canadian Swing Line Sub-Commitment, in each case without the written
consent of the Majority Facility Lenders with respect to the applicable
Revolving Credit Facility and each applicable Swing Line Lender; (vi) reduce the
percentage specified in the definition of Majority Facility Lenders with respect
to any Facility without the written consent of all Lenders under such Facility;
(vii) amend, modify or waive any provision of Section 10 without the written
consent of each Agent adversely affected thereby; (viii) amend, modify or waive
any provision of Section 3.3 or 3.4 without the written consent of each Swing
Line Lender; (ix) amend, modify or waive any provision of Sections 3.7 to 3.14
without the written consent of each Issuing Lender; (x) alter the order of
application of any mandatory prepayment under any Facility, without the written
consent of the Majority Facility Lenders under such Facility; (xi) amend, modify
or waive any Loan Document so as to alter the ratable treatment of the Borrower
Hedge Agreement Obligations (as defined in the Guarantee and Collateral
Agreement) and the Borrower Credit Agreement Obligations in a manner adverse to
any Qualified Counterparty with Obligations then outstanding without the written
consent of any such Qualified Counterparty or (xii) amend, modify or waive any
Loan Document, including Section 4.8, so as to alter the pro rata treatment of
borrowings and payments hereunder. Any such waiver and any such amendment,
supplement or modification shall apply equally to each of the Lenders and shall
be binding upon the Loan Parties, the Lenders, the Agents and all future holders
of the Loans. In the case of any waiver, the Loan Parties, the Lenders and the
Agents shall be restored to their former position and rights hereunder and under
the other Loan Documents, and any Default or Event of Default waived shall be
deemed to be cured and not continuing for the period of such waiver; but no such
waiver shall extend to any subsequent or other Default or Event of Default, or
impair any right consequent thereon.
Notwithstanding the foregoing, this Agreement may be amended (or
amended and restated) with the written consent of the Required Lenders, the
Administrative Agent and the Borrowers (a) to add one or more additional credit
facilities to this Agreement and to permit the extensions of credit from time to
time outstanding thereunder and the accrued interest and fees in respect thereof
(collectively, the "Additional Extensions of Credit") to share ratably in the
benefits of this Agreement and the other Loan Documents with the Term Loans and
Revolving Extensions of Credit and the accrued interest and fees in respect
thereof and (b) to include appropriately the Lenders holding such credit
facilities in any determination of the Required Lenders and Majority Facility
Lenders; provided, that no such amendment shall permit the Additional Extensions
of Credit to share ratably with or with preference to the Term Loans in the
application of mandatory prepayments without the consent of the Majority
Facility Lenders under the U.S. Term Facility and the Canadian Term Facility or
otherwise to share ratably with or with preference to the Revolving Extensions
of Credit without the consent of the Majority Facility Lenders under the U.S.
Revolving Facility and the Canadian Revolving Facility.
In addition, notwithstanding the foregoing, this Agreement may be
amended with the written consent of the Administrative Agent, the Borrowers and
the Lenders providing the
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relevant Replacement Term Loans (as defined below) to permit the refinancing of
all outstanding U.S. Term Loans and/or Canadian Term Loans ("Refinanced Term
Loans") with one or more replacement "B" term loan tranche(s) hereunder
("Replacement Term Loans"), provided that (a) the aggregate principal amount of
such Replacement Term Loans shall not exceed the aggregate principal amount of
such Refinanced Term Loans, (b) the Applicable Margin for such Replacement Term
Loans shall not be higher than the Applicable Margin for such Refinanced Term
Loans, (c) the weighted average life to maturity of such Replacement Term Loans
shall not be shorter than the weighted average life to maturity of such
Refinanced Term Loans at the time of such refinancing and (d) all other terms
applicable to such Replacement Term Loans shall be substantially identical to,
or less favorable to the Lenders providing such Replacement Term Loans than,
those applicable to such Refinanced Term Loans, except to the extent necessary
to provide for covenants and other terms applicable to any period after the
latest final maturity of the Term Loans in effect immediately prior to such
refinancing.
Cedar Fair LP shall be permitted to replace any Lender that fails to
consent to any amendment, waiver or consent to any Loan Document requested by a
Borrower in respect of which the consent of all (or all affected) Lenders or all
Lenders under a particular Facility is required, and supported by, as
applicable, the Required Lenders or the Majority Facility Lenders, with a
replacement financial institution; provided that (i) no later than thirty (30)
days after the date on which the consent of as applicable, the Required Lenders
or the Majority Facility Lenders was obtained with respect to such amendment,
waiver or consent, Cedar Fair LP shall notify the Lender of Cedar Fair LP's
intention to replace such Lender, (ii) such replacement does not conflict with
any applicable Requirement of Law, (iii) the replacement financial institution
shall purchase, at par, all Loans and other amounts owing to such replaced
Lender on or prior to the date of replacement, (iv) the Borrowers shall be
liable to such replaced Lender under Section 4.11 if any Eurodollar Loan or BA
Loan owing to such replaced Lender shall be purchased other than on the last day
of the Interest Period relating thereto, (v) the replacement financial
institution, if not already a Lender, shall be approved by the Administrative
Agent and, if such replaced Lender is a Revolving Lender, approved by the
applicable Issuing Lender and Swing Line Lender (which approvals shall not be
withheld or delayed unreasonably), (vi) the replaced Lender and the replacement
financial institution shall be obligated to effect such replacement in
accordance with the provisions of Section 11.6 (provided that the Administrative
Agent agrees to waive the processing and recordation fee referred to therein in
respect of a replacement pursuant to this paragraph of Section 11.1), (vii)
until such time as such replacement shall be consummated, the applicable
Borrower shall pay all additional amounts (if any) required pursuant to Section
4.9 or 4.10, as the case may be, (viii) any such replacement shall not be deemed
to be a waiver of any rights that (A) either Borrower, the Administrative Agent
or any other Lender shall have against the replaced Lender or (B) the replaced
Lender shall have against either Borrower, the Administrative Agent or any other
Lender, (ix) the provisions of Section 11.5 shall continue to benefit the
replaced Lender, and (x) the replacement financial institution has agreed to the
respective amendment, waiver or consent in connection with such replacement.
11.2. Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of the Borrowers and the Agents, and
as
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set forth in an administrative questionnaire delivered to the Administrative
Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:
The Borrowers: c/o Cedar Fair, L.P.
Xxx Xxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxx 00000
Attention: Chief Financial Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Syndication Agent: Bear Xxxxxxx Corporate Lending Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X'Xxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
The Administrative Agent: KeyBank National Association
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopy: (000) 000-0000
The Canadian Administrative General Electric Capital Corporation
Agent: 000 Xxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Cedar Fair Portfolio Manager
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
GE Canada Finance Holding Company
00 Xxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx, X0X 0X0
Attention: Cedar Fair Portfolio Manager
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
provided that any notice, request or demand to or upon any Agent, any Issuing
Lender or the Lenders shall not be effective until received.
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Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices involving a Lender pursuant to Section 2 unless otherwise
agreed by the Administrative Agent and/or the Canadian Administrative Agent, as
applicable, and the applicable Lender. The Administrative Agent and/or the
Canadian Administrative Agent, as applicable, or Cedar Fair LP may, in its
discretion, agree to accept notices and other communications to it hereunder by
electronic communications pursuant to procedures approved by it; provided that
approval of such procedures may be limited to particular notices or
communications.
11.3. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.4. Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
11.5. Payment of Expenses and Taxes. Each Borrower agrees (a) to pay
or reimburse each Agent for all its reasonable out-of-pocket costs and expenses
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including the reasonable fees and disbursements of counsel to such
Agent and filing and recording fees and expenses, with statements with respect
to the foregoing to be submitted to Cedar Fair LP prior to the Closing Date (in
the case of amounts to be paid on the Closing Date) and from time to time
thereafter on a monthly basis or such other periodic basis as such Agent shall
deem appropriate, (b) to pay or reimburse each Lender and Agent for all its
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Loan Documents and any such other
documents, including the fees and disbursements of counsel (including the
allocated fees and expenses of in-house counsel) to each Lender and of counsel
to such Agent, (c) to pay, indemnify, and hold each Lender and Agent harmless
from, on an after-tax basis, any and all recording and filing fees and any and
all liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, that may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, and (d)
to pay, indemnify, and hold each Lender and Agent and their respective officers,
directors, employees, affiliates, agents, advisors, trustees and controlling
persons (each, an "Indemnitee") harmless from and against any and all other
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or
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nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents
(regardless of whether any Loan Party is or is not a party to any such actions
or suits) and any such other documents, including any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law applicable to the operations of any Group
Member or any of the Properties and the reasonable fees and expenses of legal
counsel in connection with claims, actions or proceedings by any Indemnitee
against any Loan Party under any Loan Document (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"), provided, that the Borrowers
shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of such Indemnitee. Without
limiting the foregoing, and to the extent permitted by applicable law, each
Borrower agrees not to assert and to cause its Subsidiaries not to assert, and
hereby waives and agrees to cause its Subsidiaries to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section 11.5 shall be payable not later than 10 days after written
demand therefor. Statements payable by the Borrowers pursuant to this Section
11.5 shall be submitted to the Chief Financial Officer (Telephone No. (419)
000-0000) (Telecopy No. (000) 000-0000), at the address of the Borrowers set
forth in Section 11.2, or to such other Person or address as may be hereafter
designated by Cedar Fair LP in a written notice to the Administrative Agent. The
agreements in this Section 11.5 shall survive repayment of the Loans and all
other amounts payable hereunder.
11.6. Successors and Assigns; Participations and Assignments. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of any Issuing Lender that issues any Letter of
Credit), except that (i) no Borrower may assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by any such Borrower without such
consent shall be null and void) and (ii) no Lender may assign or otherwise
transfer its rights or obligations hereunder except in accordance with this
Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an "Assignee") all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Commitments and the Loans at the time owing to it) with the
prior written consent (such consent not to be unreasonably withheld) of:
(A) Cedar Fair LP, provided that no consent of Cedar Fair LP
shall be required for an (x) assignment to a Lender, an affiliate of a
Lender, an Approved Fund (as defined below) or, if an Event of Default
has occurred and is continuing, any other Person, (y) any assignment
by the Administrative Agent or the Syndication Agent (or any of their
affiliates) or (z) any assignment of Term Loans, and provided further
that no assignment of Canadian Revolving Loans or Canadian Revolving
Commitments to a Person that is not a Qualifying Canadian
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Lender shall be made without the consent of Cedar Fair LP unless such
assignment is made upon and during the occurrence of an Event of
Default; and
(B) the Administrative Agent, provided that no consent of the
Administrative Agent shall be required for (x) an assignment to an
Assignee that is a Lender immediately prior to giving effect to such
assignment, except in the case of an assignment of a Revolving
Commitment to an Assignee that does not already have a Revolving
Commitment, (y) any assignment by the Administrative Agent (or its
affiliates) or (z) any assignment of Term Loans; and
(C) in the case of any assignment of a Revolving Commitment, the
applicable Issuing Lender and the applicable Swing Line Lender.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an affiliate
of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender's Commitments or Loans under
any Facility, the amount of the Commitments or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered
to the Administrative Agent) shall not be less than $5,000,000 (or, in
the case of the U.S. Term Facility or the Canadian Term Facility,
$1,000,000) unless each of Cedar Fair LP and the Administrative Agent
otherwise consent, provided that (1) no such consent of Cedar Fair LP
shall be required if an Event of Default has occurred and is
continuing and (2) such amounts shall be aggregated in respect of each
Lender and its affiliates or Approved Funds, if any;
(B) the parties to each assignment shall execute and deliver to
the Administrative Agent, the Canadian Administrative Agent and the
Syndication Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 payable to the Administrative
Agent; provided that only one such fee shall be payable in connection
with simultaneous assignments to or by Approved Funds;
(C) the Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent and the Canadian Administrative Agent an
administrative questionnaire;
(D) in the case of an assignment to a CLO (as defined below)
managed by such Lender or an affiliate of such Lender, the assigning
Lender shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement and the
other Loan Documents, provided that the Assignment and Assumption
between such Lender and such CLO may provide that such Lender will
not, without the consent of such CLO, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender
directly
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affected thereby pursuant to the proviso to the second sentence of
Section 11.1 and (2) directly affects such CLO; and
(E) in no event shall any such assignment be made to a Person
that, directly or indirectly, is primarily engaged in the ownership or
operation of amusement parks, water parks, theme parks or other
similar properties.
For the purposes of this Section 11.6, the terms "Approved Fund" and
"CLO" have the following meanings:
"Approved Fund" means (a) as to any Lender, a CLO managed by such
Lender or an affiliate of such Lender and (b) with respect to any Lender that is
a fund which invests in bank loans and similar extensions of credit, any other
fund that invests in bank loans and similar extensions of credit and is managed
by the same investment manager or advisor as such Lender or by an affiliate of
such investment manager or advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise investing
in bank loans and similar extensions of credit in the ordinary course and is
administered or managed by a Lender or an affiliate of such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment and Assumption the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
4.9, 4.10, 4.11 and 11.5); provided that nothing in this Section 11.6 shall be
construed as (y) creating any new Loan or other Obligation and shall not
constitute a novation of such Loan or other Obligation or (z) constitute or
require the repayment and/or re-advance of any principal of any Loan or other
Indebtedness, it being the intention of the parties that only an assignment of
Obligations held by, and of the rights and obligations of, a Lender are
contemplated hereby, which Obligations shall continue to be the same, and not
new, Obligations. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 11.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the U.S. Borrower, and the Canadian Administrative Agent, acting for this
purpose as an agent for the Canadian Borrower, shall maintain at one of their
respective offices a copy of each Assignment and Assumption delivered to it and
a register for the recordation of the names and addresses of the Lenders, and
the Commitments of, and principal amount of the Loans and L/C Obligations owing
to, each Lender under the Facility for which it has been appointed agent
pursuant to the terms hereof from time to time (the "Register"). The entries in
the Register shall be conclusive,
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and the Borrowers, the Administrative Agent, the Canadian Administrative Agent,
the Issuing Lenders and the Lenders may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the Assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent, in the case of the U.S. Facility,
or the Canadian Administrative Agent, in the case of the Canadian Facility,
shall accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of the Borrowers, the
Administrative Agent or the Canadian Administrative Agent, sell participations
to one or more banks or other entities (a "Participant") in all or a portion of
such Lender's rights and obligations under this Agreement (including all or a
portion of its Commitments and the Loans owing to it); provided that (A) such
Lender's obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (C) the Borrowers, the Administrative Agent,
the Canadian Administrative Agent, the Issuing Lenders and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement, (D) no portion of a
Canadian Revolving Commitment shall be made subject to a participation to a
Person that would not receive payments thereunder free and clear of Canadian
non-resident withholding tax without the consent of the Canadian Borrower unless
such participation is made on or after an Event of Default has occurred and is
continuing and (E) in no event shall any such participation be sold to a Person
that, directly or indirectly, is primarily engaged in the ownership or operation
of amusement parks, water parks, theme parks or other similar properties. Any
agreement pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement may provide that such Lender will not,
without the consent of the Participant, agree to any amendment, modification or
waiver that (1) requires the consent of each Lender directly affected thereby
pursuant to the proviso to the second sentence of Section 11.1 and (2) directly
affects such Participant. Subject to paragraph (c)(ii) of this Section, the
Borrowers agree that each Participant shall be entitled to the benefits of
Sections 4.9, 4.10 and 4.11 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 11.7(b) as though it were a Lender, provided such
Participant shall be subject to Section 11.7(a) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 4.9 or 4.10 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with Cedar Fair
LP's prior written consent or after the occurrence and during the
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continuance of an Event of Default. Any Participant that is a Foreign Lender
shall not be entitled to the benefits of Section 4.10 with respect to any United
States withholding taxes unless such Participant complies with Section 4.10(d).
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; provided that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party hereto.
(e) The Borrowers, upon receipt of written notice from the relevant
Lender, agree to issue Notes to any Lender requiring Notes to facilitate
transactions of the type described in paragraph (d) above.
(f) Notwithstanding the foregoing, any Conduit Lender may assign any
or all of the Loans it may have funded hereunder to its designating Lender
without the consent of the Borrowers or the Administrative Agent and without
regard to the limitations set forth in Section 11.6(b); provided that in no
event shall any such assignment be made to a Person that, directly or
indirectly, is primarily engaged in the ownership or operation of amusement
parks, water parks, theme parks or other similar properties. Each of the
Borrowers, each Lender and the Administrative Agent hereby confirms that it will
not institute against a Conduit Lender or join any other Person in instituting
against a Conduit Lender any bankruptcy, reorganization, arrangement, insolvency
or liquidation proceeding under any state bankruptcy or similar law, for one
year and one day after the payment in full of the latest maturing commercial
paper note issued by such Conduit Lender; provided, however, that each Lender
designating any Conduit Lender hereby agrees to indemnify, save and hold
harmless each other party hereto for any loss, cost, damage or expense arising
out of its inability to institute such a proceeding against such Conduit Lender
during such period of forbearance.
11.7. Adjustments; Set-off. (a) Except to the extent that this
Agreement expressly provides for payments to be allocated to a particular Lender
or to the Lenders under a particular Facility, if any Lender (a "Benefitted
Lender") shall receive any payment of all or part of the Obligations owing to
it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 9(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the Obligations owing to such other Lender, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrowers,
any such notice being
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expressly waived by each Borrower to the extent permitted by applicable law,
upon any amount becoming due and payable by any Borrower hereunder (whether at
the stated maturity, by acceleration or otherwise), which amount is not paid
when due, to set off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of such Borrower. Each Lender agrees
promptly to notify Cedar Fair LP and the Administrative Agent after any such
setoff and application made by such Lender, provided that the failure to give
such notice shall not affect the validity of such setoff and application.
11.8. Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with Cedar Fair LP and the Administrative Agent.
11.9. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
11.10. Integration. This Agreement and the other Loan Documents
represent the entire agreement of the Borrowers, the Agents and the Lenders with
respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by any Agent or any Lender relative
to subject matter hereof not expressly set forth or referred to herein or in the
other Loan Documents.
11.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
11.12. Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction
of the courts of the State of New York, the courts of the United
States for the Southern District of New York, and appellate courts
from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have
to the venue of any such
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action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or
certified mail (or any substantially similar form of mail), postage
prepaid, to such Borrower at its address set forth in Section 11.2 or
at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or
proceeding referred to in this Section any special, exemplary,
punitive or consequential damages.
11.13. Acknowledgments. Each Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) no Agent or Lender has any fiduciary relationship with or
duty to the Borrowers arising out of or in connection with this
Agreement or any of the other Loan Documents, and the relationship
between the Agents and Lenders, on one hand, and the Borrowers, on the
other hand, in connection herewith or therewith is solely that of
debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Lenders or among the Borrowers and the
Lenders.
11.14. Releases of Guarantees and Liens. (a) Notwithstanding
anything to the contrary contained herein or in any other Loan Document, the
Collateral Agent is hereby irrevocably authorized by each Secured Party (without
requirement of notice to or consent of any Secured Party except as expressly
required by Section 11.1) to take any action requested by Cedar Fair LP having
the effect of releasing any Collateral or guarantee obligations (i) to the
extent necessary to permit consummation of any transaction not prohibited by any
Loan Document or that has been consented to in accordance with Section 11.1 or
(ii) under the circumstances described in paragraph (b) below.
(b) At such time as the Loans, the Reimbursement Obligations and the
other obligations under the Loan Documents shall have been paid in full, the
Commitments have been terminated, no Letters of Credit shall be outstanding
(unless any such Letter of Credit has been cash collateralized at 105% of its
face amount) and the net termination liability under or in respect of Specified
Agreements at such time shall have been cash collateralized (by collateral
arrangements satisfactory to the Qualified Counterparty in its sole discretion)
or paid in full, the Collateral shall be released from the Liens created by the
Security Documents, and the Security
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Documents and all obligations (other than those expressly stated to survive such
termination) of the Collateral Agent and each Loan Party under the Security
Documents shall terminate, all without delivery of any instrument or performance
of any act by any Person.
11.15. Confidentiality. Each Agent and each Lender agrees to keep
confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement that is designated by such Loan Party as
confidential; provided that nothing herein shall prevent any Agent or any Lender
from disclosing any such information (a) to any Agent, any other Lender or any
Lender Affiliate, (b) subject to an agreement to comply with the provisions of
this Section, to any actual or prospective Transferee, to any pledgee referred
to in Section 11.6(d) or any direct or indirect counterparty to any Hedge
Agreement (or any professional advisor to such counterparty), (c) to its
employees, directors, trustees, agents, attorneys, accountants and other
professional advisors or those of any of its affiliates, (d) upon the request or
demand of any Governmental Authority, (e) in response to any order of any court
or other Governmental Authority or as may otherwise be required pursuant to any
Requirement of Law, (f) if requested or required to do so in connection with any
litigation or similar proceeding, (g) that has been publicly disclosed, (h) to
the National Association of Insurance Commissioners or any similar organization
or any nationally recognized rating agency that requires access to information
about a Lender's investment portfolio in connection with ratings issued with
respect to such Lender, or (i) in connection with the exercise of any remedy
hereunder or under any other Loan Document.
11.16. WAIVERS OF JURY TRIAL. THE BORROWERS, THE AGENTS AND THE
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
11.17. Delivery of Addenda. Each initial Lender that does not execute
a counterpart of this Agreement shall become a party to this Agreement by
delivering to the Administrative Agent and the Canadian Administrative Agent an
Addendum duly executed by such Lender or pursuant to an Assignment and
Assumption Agreement in accordance with Section 11.6.
11.18. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "Charges"), shall exceed the maximum
lawful rate (the "Maximum Rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
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11.19. Canadian Borrower. The Canadian Borrower hereby irrevocably
appoints Cedar Fair, L.P. as the borrowing agent and attorney-in-fact for the
Canadian Borrower which appointment shall remain in full force and effect unless
and until the Agents shall have received prior written notice signed by the
Canadian Borrower that such appointment has been revoked. The Canadian Borrower
hereby irrevocably appoints and authorizes Cedar Fair LP (i) to provide the
Agents with all notices with respect to Loans and Letters of Credit obtained for
the benefit of the Canadian Borrower and all other notices, consents and
instructions under this Agreement, and (ii) to take such action as Cedar Fair XX
xxxxx appropriate on its behalf to obtain Loans and Letters of Credit and to
exercise such other powers as are reasonably incidental thereto to carry out the
purposes of this Agreement. The handling of the accounts of each Borrower in a
combined fashion, as more fully set forth herein, is done solely as an
accommodation to the Borrowers in order to utilize the collective borrowing
powers of each Borrower in the most efficient and economical manner and at their
request, and no Agent or Lender shall incur liability to either Borrower or any
other Person as a result thereof. Each Borrower expects to derive benefit,
directly or indirectly, from the handling of the accounts in a combined fashion
and represents that the successful operation of each Borrower is dependent on
the continued successful performance of the integrated group. To induce the
Agents and the Lenders to do so, and in consideration thereof, each Borrower
hereby agrees to indemnify each Agent and Lender and hold each Agent and Lender
harmless against any and all liability, expense, loss incurred or claim of
damage or injury asserted against any Agent or Lender by such Borrower or any
other Group Member or any other Person whosoever, arising from or incurred by
reason of (a) the handling of the accounts of the Borrowers as herein provided,
(b) the reliance of the Agent and the Lenders on any instructions of Cedar Fair
LP or (c) any other action taken by any Agent or any Lender hereunder or under
the other Loan Documents.
11.20. Judgment Currency. If in the recovery by any Secured Party of
any amount owing hereunder in any currency judgment can only be obtained in
another currency, and because of changes in the exchange rate of such currencies
between the date of judgment and payment in full of the amount of such judgment
the amount of recovery under the judgment differs from the full amount owing
hereunder, the applicable Borrower shall pay any such shortfall to the
applicable Secured Party, and such shortfall can be claimed by the applicable
Secured Party against such Borrower as an alternative or additional cause of
action.
11.21. Facility Allocation Mechanism. (a) Implementation of FAM.
(i) On the FAM Exchange Date, (x) the Commitments shall, unless,
on or prior to the FAM Exchange Date, the Majority Facility Lenders
under each Facility shall have otherwise directed the Administrative
Agent (but without limiting the applicability of any conflicting
provision of Section 9, including clause (A) of the final full
paragraph thereof), automatically and without further act be
terminated as provided in Section 9, (y) the Lenders shall
automatically and without further act (and without regard to the
provisions of Section 11.6), unless, on or prior to the FAM Exchange
Date, the Majority Facility Lenders under each Facility shall have
otherwise directed the Administrative Agent, be deemed to have
exchanged interests in the Facilities such that in lieu of the
interest of each Lender in each Facility in which it shall have
assumed an interest and/or participated as of such date (including
such Lender's interest in the Specified
133
Obligations of each Loan Party in respect of each such Facility), such
Lender shall hold an interest in every one of the Facilities
(including the Specified Obligations of each Loan Party in respect of
each such Facility and each L/C Reserve Account established pursuant
to clause (b) below), whether or not such Lender shall previously have
participated therein, equal to such Lender's FAM Percentage thereof
and (z) simultaneously with the deemed exchange of interests pursuant
to clause (y) above, in the case of any FAM Dollar Lender that has
prior to the date thereof notified the Administrative Agent and the
U.S. Borrower in writing that it has elected to have this clause (z)
apply to it, the interests in the Canadian Dollar Loans to be received
by such FAM Dollar Lender in such deemed exchange shall, automatically
and with no further action required, be converted into the Dollar
Equivalent, determined using the Exchange Rate calculated as of such
date, of such amount, and on and after such date, all amounts accruing
and owed to such FAM Dollar Lender in respect of such Obligations
shall accrue and be payable in Dollars at the rate otherwise
applicable hereunder; provided that such FAM Exchange will not affect
the aggregate amount of the Obligations of the U.S. Borrower and the
Canadian Borrower to the Lenders under the Loan Documents. Each Lender
and each Loan Party hereby consents and agrees to the FAM Exchange,
and each Lender agrees that the FAM Exchange shall be binding upon its
successors and assigns and any person that acquires a participation in
its interests in any Facility. Each Loan Party agrees from time to
time to execute and deliver to the Administrative Agent all promissory
notes and other instruments and documents as the Administrative Agent
shall reasonably request to evidence and confirm the respective
interests of the Lenders after giving effect to the FAM Exchange, and
each Lender agrees to surrender any promissory notes originally
received by it in connection with its Loans hereunder to the
Administrative Agent against delivery of new promissory notes
evidencing its interests in the Facilities; provided, however, that
the failure of any Loan Party to execute or deliver or of any Lender
to accept any such promissory note, instrument or document shall not
affect the validity or effectiveness of the FAM Exchange.
(ii) As a result of the FAM Exchange, upon and after the FAM
Exchange Date, each payment received by the Administrative Agent or
the Canadian Administrative Agent pursuant to any Loan Document in
respect of the Specified Obligations, and each distribution made by
the Administrative Agent or the Canadian Administrative Agent pursuant
to any Loan Document in respect of the Specified Obligations, shall be
distributed to the Lenders pro rata in accordance with their
respective FAM Percentages. Any direct payment received by a Lender
upon or after the FAM Exchange Date, including by way of setoff, in
respect of any Specified Obligation shall be paid over to the
Administrative Agent for distribution to the Lenders in accordance
herewith.
(b) Letters of Credit.
(i) In the event that on the FAM Exchange Date any Letter of
Credit shall be outstanding and undrawn in whole or in part or there
shall be any unpaid
134
Reimbursement Obligation under any such Letter of Credit, each
applicable Lender shall, before giving effect to the FAM Exchange,
promptly pay over to the Administrative Agent, in immediately
available funds and in the currency that each such Letter of Credit is
denominated, an amount equal to such Lender's U.S. Revolving Credit
Percentage or Canadian Revolving Credit Percentage, as applicable, of
each such Letter of Credit's undrawn face amount or (to the extent it
has not already done so) such Reimbursement Obligation, as the case
may be, together with interest thereon from the FAM Exchange Date to
the date on which such amount shall be paid to the Administrative
Agent at the rate that would be applicable at the time to a Revolving
Loan that is a Base Rate Loan in a principal amount equal to such
amount, as the case may be. The Administrative Agent shall establish a
separate account or accounts for each Lender (each, an "L/C Reserve
Account") for the amounts received with respect to each such Letter of
Credit and/or Reimbursement Obligation pursuant to the preceding
sentence. The Administrative Agent shall deposit in each Lender's L/C
Reserve Account such Lender's FAM Percentage of the amounts received
from the Lenders as provided above. The Administrative Agent shall
have sole dominion and control over each L/C Reserve Account, and the
amounts deposited in each L/C Reserve Account shall be held in such
L/C Reserve Account until withdrawn as provided in paragraph (ii),
(iii), (iv) or (v) below. The Administrative Agent shall maintain
records enabling it to determine the amounts paid over to it and
deposited in the L/C Reserve Accounts in respect of each Letter of
Credit and/or Reimbursement Obligation and the amounts on deposit in
respect of each Letter of Credit and/or Reimbursement Obligation
attributable to each Lender's FAM Percentage. The amounts held in each
Lender's L/C Reserve Account shall be held as a reserve against such
Lender's Revolving Percentage of the L/C Obligations then outstanding,
shall be the property of such Lender, shall not constitute Loans to or
give rise to any claim of or against any Loan Party and shall not give
rise to any obligation on the part of the U.S. Borrower or the
Canadian Borrower to pay interest to such Lender, it being agreed that
the reimbursement obligations in respect of Letters of Credit shall
arise only at such times as drawings are made thereunder, as provided
in Section 3.11.
(ii) In the event that after the FAM Exchange Date any drawing
shall be made in respect of a Letter of Credit, the Administrative
Agent shall, at the request of the applicable Issuing Lender, withdraw
from the L/C Reserve Account of each Lender any amounts, up to the
amount of such Lender's FAM Percentage of such drawing, deposited in
respect of such Letter of Credit and remaining on deposit and deliver
such amounts to the applicable Issuing Lender in satisfaction of the
reimbursement obligations of the Lenders under Section 3.10 (but not
of the U.S. Borrower and the Canadian Borrower under Section 3.10,
respectively). In the event any Lender shall default on its obligation
to pay over any amount to the Administrative Agent in respect of any
Letter of Credit as provided in this Section 11.21(b), the applicable
Issuing Lender shall, in the event of a drawing thereunder, have a
claim against such Lender to the same extent as if such Lender had
defaulted on its obligations under Section 3.10, but shall have no
claim against any other Lender in respect of such defaulted amount,
notwithstanding the
135
exchange of interests in the reimbursement obligations pursuant to
Section 11.21(a). Each other Lender shall have a claim against such
defaulting Lender for any damages sustained by it as a result of such
default, including, in the event such Letter of Credit shall expire
undrawn, its FAM Percentage of the defaulted amount.
(iii) In the event that after the FAM Exchange Date any Letter of
Credit shall expire undrawn, the Administrative Agent shall withdraw
from the L/C Reserve Account of each Lender the amount remaining on
deposit therein in respect of such Letter of Credit and distribute
such amount to such Lender.
(iv) With the prior written approval of the Administrative Agent
and the applicable Issuing Lender, any Lender may withdraw the amount
held in its L/C Reserve Account in respect of the undrawn amount of
any Letter of Credit. Any Lender making such a withdrawal shall be
unconditionally obligated, in the event there shall subsequently be a
drawing under such Letter of Credit, to pay over to the Administrative
Agent, for the account of the applicable Issuing Lender on demand, its
FAM Percentage of such drawing.
(v) Pending the withdrawal by any Lender of any amounts from its
L/C Reserve Account as contemplated by the above paragraphs, the
Administrative Agent will, at the direction of such Lender and subject
to such rules as the Administrative Agent may prescribe for the
avoidance of inconvenience, invest such amounts in Cash Equivalents.
Each Lender that has not withdrawn the amounts in its L/C Reserve
Account as provided in paragraph (iv) above shall have the right, at
intervals reasonably specified by the Administrative Agent, to
withdraw the earnings on investments so made by the Administrative
Agent with amounts in its L/C Reserve Account and to retain such
earnings for its own account.
(c) Net Payments Upon Implementation of FAM Exchange. Notwithstanding
any other provision of this Agreement, if, as a direct result of the
implementation of the FAM Exchange, the U.S. Borrower or the Canadian Borrower
is required to withhold Non-Excluded Taxes from amounts payable to the
Administrative Agent, any Lender or any Participant hereunder, or if
Non-Excluded Taxes are otherwise imposed on such amounts, or if the
Administrative Agent or any Lender or Participant hereunder is required to pay
any such Non-Excluded Taxes, the amounts so payable to the Administrative Agent,
such Lender or such Participant shall be increased to the extent necessary to
yield to the Administrative Agent, such Lender or such Participant (i) (after
making all required withholding or deductions including withholding or
deductions applicable to additional sums payable under this Section 11.21(c) or
after payment of Non-Excluded Taxes) an amount equal to the sum such
Administrative Agent, Lender or Participant, as the case may be, would have
received had no such withholding or deductions been made or had such
Non-Excluded Taxes not been imposed; (ii) the Borrowers shall pay the full
amount withheld or deducted to the relevant taxation authority in accordance
with applicable law; and (iii) within 30 days of such payments, the applicable
Borrower shall deliver to the Administrative Agent the original or certified
copy of a receipt evidencing payment thereof; provided, however, that the U.S.
Borrower and the Canadian Borrower shall not be
136
required to increase any such amounts payable to such Lender or Participant
under this Section 11.21(c) (but, rather, shall be required to increase any such
amounts payable to such Lender or Participant to the extent required by Section
4.10) if such Lender or Participant was prior to or on the FAM Exchange Date
already a Lender or Participant with respect to the U.S. Borrower or the
Canadian Borrower, as the case may be. If a Foreign Lender, in its good faith
judgment, is eligible for an exemption from, or reduced rate of, U.S. Federal
withholding tax on payments by the U.S. Borrower under this Agreement, such
Foreign Lender shall comply with the requirements of paragraph (d) of Section
4.10 as soon as practicable, and the U.S. Borrower shall not be required to
increase any such amounts payable to such Foreign Lender to the extent of any
U.S. withholding tax resulting from the failure by a Foreign Lender to so
comply. If the U.S. Borrower or the Canadian Borrower, as the case may be, fails
to withhold, pay or remit any such Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the U.S. Borrower and
the Canadian Borrower shall indemnify, on a joint and several basis, the
Administrative Agent, the Lenders and the Participants for any taxes, interest,
costs or penalties that may be payable by the Administrative Agent, such Lenders
or such Participants as a result of any such failure. This Section 11.21(c)
shall not have any impact on the application of Section 4.10 to any payments to
the extent Section 4.10 otherwise applies to such payments.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
CEDAR FAIR, L.P.
By Cedar Fair Management Inc., its
General Partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
3147010 NOVA SCOTIA COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
BEAR, XXXXXXX & CO. INC., as Joint Lead
Arranger and Sole Bookrunner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BEAR XXXXXXX CORPORATE LENDING INC., as
Syndication Agent and an Original Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
KEYBANK NATIONAL ASSOCIATION, as Joint
Lead Arranger, Administrative Agent,
Collateral Agent, U.S. Issuing Lender,
U.S. Swing Line Lender and an Original
Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GE CANADA FINANCE HOLDING COMPANY, as
Canadian Administrative Agent, Canadian
Swing Line Lender and Canadian Issuing
Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
3
GENERAL ELECTRIC CAPITAL CORPORATION, as
Co-Documentation Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Co-Documentation Agent and an Original
Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NATIONAL CITY (CANADIAN BRANCH OF
NATIONAL CITY BANK), as Canadian
Syndication Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FIFTH THIRD BANK, as Canadian
Documentation Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Annex A
PRICING GRID FOR U.S. REVOLVING LOANS, U.S. SWING LINE LOANS, CANADIAN REVOLVING
LOANS, CANADIAN SWING LINE LOANS AND COMMITMENT FEES
Applicable
Applicable Applicable Margin for
Margin for Margin for Canadian
Pricing Eurodollar Base Rate Prime Rate Acceptance Commitment
Level Loans Loans Loans Fee Fee Rate
------- ---------- ---------- ---------- ---------- ----------
I 2.50% 1.50% 1.50% 2.50% 0.500%
II 2.25% 1.25% 1.25% 2.25% 0.500%
III 2.00% 1.00% 1.00% 2.00% 0.425%
IV 1.75% 0.75% 0.75% 1.75% 0.375%
The Applicable Margin for U.S. Revolving Loans, U.S. Swing Line Loans, Canadian
Revolving Loans, Canadian Swing Line Loans and the Commitment Fee Rate shall be
adjusted, on and after the first Adjustment Date (as defined below) occurring
after the completion of two full fiscal quarters of Cedar Fair LP after the
Closing Date, based on changes in the Consolidated Leverage Ratio, with such
adjustments to become effective on the date (the "Adjustment Date") that is
three Business Days after the date on which the relevant financial statements
are delivered to the Lenders pursuant to Section 7.1(a) or (b) and to remain in
effect until the next adjustment to be effected pursuant to this paragraph. If
any financial statements referred to above are not delivered within after the
time periods specified in Section 7.1(a) or (b), then, until the date that is
three Business Days after the date on which such financial statements are
delivered, the highest rate set forth in each column of the Pricing Grid shall
apply. On each Adjustment Date, the Applicable Margin for U.S. Revolving Loans,
U.S. Swing Line Loans, Canadian Revolving Loans, Canadian Swing Line Loans and
the Commitment Fee Rate shall be adjusted to be equal to the Applicable Margins
and Commitment Fee Rate opposite the Pricing Level determined to exist on such
Adjustment Date from the financial statements relating to such Adjustment Date.
Notwithstanding the foregoing, whenever any Event of Default shall have occurred
and be continuing, then the highest rate set forth in each column of the Pricing
Grid shall apply.
As used herein, the following rules shall govern the determination of
Pricing Levels on each Adjustment Date:
"Pricing Level I" shall exist on an Adjustment Date if the
Consolidated Leverage Ratio for the relevant period is greater than or equal to
4.25 to 1.00.
2
"Pricing Level II" shall exist on an Adjustment Date if the
Consolidated Leverage Ratio for the relevant period is less than 4.25 to 1.00
but greater than or equal to 3.75 to 1.00.
"Pricing Level III" shall exist on an Adjustment Date if the
Consolidated Leverage Ratio for the relevant period is less than 3.75 to 1.00
but greater than or equal to 3.25 to 1.00.
"Pricing Level IV" shall exist on an Adjustment Date if the
Consolidated Leverage Ratio for the relevant period is less than 3.25 to 1.00.
Annex B
MINIMUM LTM EBITDA MINUS LTM CAPEX
Minimum LTM EBITDA minus
Quarterly Distribution Date LTM CAPEX
--------------------------- ------------------------
May 2007 $200,000,000
August 2007 $218,000,000
May 2008 $235,000,000
August 2008 $240,000,000
May 2009 $238,000,000
August 2009 $242,000,000
May 2010 $244,000,000
August 2010 $238,000,000
May 2011 $249,000,000
August 2011 $250,000,000
May 2012 $256,000,000
August 2012 $260,000,000
