Exhibit
10.1
EXECUTION VERSION
$2,081,275,000
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 February 15, 2007,
BEAR, XXXXXXX & CO. INC., as Sole Lead Arranger and Sole Bookrunner in connection with the
amendment and restatement contemplated hereby
and
BEAR, XXXXXXX & CO. INC.,
as Initial Sole Bookrunner and Initial Joint Lead Arranger
and
KEYBANK NATIONAL ASSOCIATION,
as Initial Joint Lead Arranger
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page |
Section 1. DEFINITIONS |
|
|
2 |
|
|
|
|
|
|
1.1 Defined Terms |
|
|
2 |
|
1.2 Other Definitional Provisions |
|
|
42 |
|
|
|
|
43 |
|
|
|
|
|
|
Section 2. AMOUNT AND TERMS OF TERM COMMITMENTS |
|
|
44 |
|
|
|
|
|
|
2.1 Term Commitments |
|
|
44 |
|
2.2 Procedure for Term Loan Borrowing |
|
|
45 |
|
2.3 Repayment of Term Loans |
|
|
46 |
|
|
|
|
|
|
Section 3. AMOUNT AND TERMS OF REVOLVING COMMITMENTS |
|
|
47 |
|
|
|
|
|
|
3.1 Revolving Commitments |
|
|
47 |
|
3.2 Procedure for Revolving Loan Borrowing |
|
|
48 |
|
3.3 Swing Line Sub Commitment |
|
|
53 |
|
3.4 Procedure for Swing Line Borrowing; Refunding of Swing Line Loans |
|
|
54 |
|
3.5 Commitment Fees, etc. |
|
|
57 |
|
3.6 Reduction or Termination of Revolving Commitments |
|
|
58 |
|
3.7 L/C Commitment |
|
|
58 |
|
3.8 Procedure for Issuance of Letter of Credit |
|
|
59 |
|
3.9 Fees and Other Charges |
|
|
60 |
|
3.10 L/C Participations |
|
|
60 |
|
3.11 Reimbursement Obligation of the Borrowers |
|
|
63 |
|
3.12 Obligations Absolute |
|
|
64 |
|
3.13 Letter of Credit Payments |
|
|
64 |
|
3.14 Applications |
|
|
65 |
|
|
|
|
|
|
Section 4. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT |
|
|
65 |
|
|
|
|
|
|
4.1 Optional Prepayments |
|
|
65 |
|
4.2 Mandatory Prepayments |
|
|
65 |
|
4.3 Conversion and Continuation Options |
|
|
69 |
|
4.4 Limitations on Eurodollar Tranches |
|
|
70 |
|
4.5 Interest Rates and Payment Dates |
|
|
71 |
|
4.6 Computation of Interest and Fees |
|
|
72 |
|
4.7 Inability to Determine Interest Rate |
|
|
73 |
|
4.8 Pro Rata Treatment and Payments |
|
|
74 |
|
4.9 Requirements of Law |
|
|
76 |
|
4.10 Taxes |
|
|
77 |
|
4.11 Indemnity |
|
|
80 |
|
4.12 Change of Lending Office |
|
|
80 |
|
|
|
|
|
|
|
|
Page |
4.13 Replacement of Lenders |
|
|
80 |
|
4.14 Evidence of Debt |
|
|
81 |
|
4.15 Illegality |
|
|
82 |
|
|
|
|
|
|
Section 5. REPRESENTATIONS AND WARRANTIES |
|
|
82 |
|
|
|
|
|
|
5.1 Financial Condition |
|
|
82 |
|
5.2 No Change |
|
|
83 |
|
5.3 Corporate Existence; Compliance with Law |
|
|
83 |
|
5.4 Power; Authorization; Enforceable Obligations |
|
|
83 |
|
5.5 No Legal Bar |
|
|
84 |
|
5.6 Litigation |
|
|
84 |
|
5.7 No Default |
|
|
84 |
|
5.8 Ownership of Property; Liens |
|
|
84 |
|
5.9 Intellectual Property |
|
|
84 |
|
5.10 Taxes |
|
|
85 |
|
5.11 Federal Regulations |
|
|
85 |
|
5.12 Labor Matters |
|
|
85 |
|
5.13 Pension and Benefit Plans |
|
|
85 |
|
5.14 Investment Company Act; Other Regulations |
|
|
86 |
|
5.15 Subsidiaries |
|
|
86 |
|
5.16 Use of Proceeds |
|
|
87 |
|
5.17 Environmental Matters |
|
|
87 |
|
5.18 Accuracy of Information, etc. |
|
|
88 |
|
5.19 Security Documents |
|
|
88 |
|
5.20 Solvency |
|
|
89 |
|
5.21 Regulation H |
|
|
89 |
|
5.22 Certain Documents |
|
|
89 |
|
5.23 Condition of the Property |
|
|
89 |
|
5.24 No Condemnation |
|
|
90 |
|
5.25 Operating Permits |
|
|
90 |
|
5.26 Adequate Utilities |
|
|
90 |
|
5.27 Public Access |
|
|
90 |
|
5.28 Boundaries |
|
|
90 |
|
5.29 Assessments |
|
|
90 |
|
5.30 Leases |
|
|
91 |
|
5.31 Anti Terrorism Laws |
|
|
91 |
|
|
|
|
|
|
Section 6. CONDITIONS PRECEDENT |
|
|
91 |
|
|
|
|
|
|
6.1 Conditions to Second Restatement Date |
|
|
92 |
|
6.2 Conditions to Each Extension of Credit |
|
|
95 |
|
|
|
|
|
|
Section 7. AFFIRMATIVE COVENANTS |
|
|
95 |
|
|
|
|
|
|
7.1 Financial Statements |
|
|
95 |
|
|
|
|
|
|
|
|
Page |
7.2 Certificates; Other Information |
|
|
96 |
|
7.3 Payment of Obligations |
|
|
98 |
|
7.4 Maintenance of Existence; Compliance |
|
|
98 |
|
7.5 Maintenance of Property; Insurance |
|
|
98 |
|
7.6 Inspection of Property; Books and Records; Discussions |
|
|
98 |
|
7.7 Notices |
|
|
99 |
|
7.8 Environmental Laws |
|
|
99 |
|
7.9 Interest Rate Protection |
|
|
100 |
|
7.10 Additional Collateral, etc. |
|
|
100 |
|
7.11 Further Assurances |
|
|
102 |
|
7.12 Clean Down |
|
|
103 |
|
7.13 Surveys |
|
|
103 |
|
7.14 Ground Lease |
|
|
103 |
|
7.15 Acquisition Agreement Representations |
|
|
104 |
|
7.16 Tax Status |
|
|
104 |
|
7.17 Restriction Agreement |
|
|
104 |
|
|
|
|
|
|
Section 8. NEGATIVE COVENANTS |
|
|
104 |
|
|
|
|
|
|
8.1 Financial Condition Covenants |
|
|
104 |
|
8.2 Indebtedness |
|
|
105 |
|
8.3 Liens |
|
|
106 |
|
8.4 Fundamental Changes |
|
|
108 |
|
8.5 Disposition of Property |
|
|
109 |
|
8.6 Restricted Payments |
|
|
109 |
|
8.7 Investments |
|
|
110 |
|
8.8 Optional Payments of Certain Debt |
|
|
111 |
|
8.9 Transactions with Affiliates |
|
|
111 |
|
8.10 Sales and Leasebacks |
|
|
112 |
|
8.11 Hedge Agreements |
|
|
112 |
|
8.12 Changes in Fiscal Periods |
|
|
112 |
|
8.13 Negative Pledge Clauses |
|
|
112 |
|
8.14 Clauses Restricting Subsidiary Distributions |
|
|
112 |
|
8.15 Lines of Business |
|
|
113 |
|
8.16 Amendments to Acquisition Documentation |
|
|
113 |
|
8.17 Amendment to Ground Lease |
|
|
113 |
|
|
|
|
|
|
Section 9. EVENTS OF DEFAULT |
|
|
113 |
|
|
|
|
|
|
Section 10. THE AGENTS |
|
|
117 |
|
|
|
|
|
|
10.1 Appointment |
|
|
117 |
|
10.2 Delegation of Duties |
|
|
117 |
|
10.3 Exculpatory Provisions |
|
|
117 |
|
10.4 Reliance by Agents |
|
|
117 |
|
10.5 Notice of Default |
|
|
118 |
|
|
|
|
|
|
|
|
Page |
10.6 Non Reliance on Agents and Other Lenders |
|
|
118 |
|
10.7 Indemnification |
|
|
119 |
|
10.8 Agent in Its Individual Capacity |
|
|
120 |
|
10.9 Successor Administrative Agent |
|
|
120 |
|
10.10 Successor Canadian Administrative Agent |
|
|
120 |
|
10.11 Agents Generally |
|
|
121 |
|
10.12 The Lead Arrangers and Co Documentation Agents |
|
|
121 |
|
10.13 No Reliance on Administrative Agent’s, Canadian Administrative Agent’s and Syndication Agent’s Customer Identification Program |
|
|
121 |
|
10.14 USA Patriot Act |
|
|
121 |
|
|
|
|
|
|
Section 11. MISCELLANEOUS |
|
|
122 |
|
|
|
|
|
|
11.1 Amendments and Waivers |
|
|
122 |
|
11.2 Notices |
|
|
124 |
|
11.3 No Waiver; Cumulative Remedies |
|
|
125 |
|
11.4 Survival of Representations and Warranties |
|
|
125 |
|
11.5 Payment of Expenses and Taxes |
|
|
126 |
|
11.6 Successors and Assigns; Participations and Assignments |
|
|
127 |
|
11.7 Adjustments; Set off |
|
|
131 |
|
11.8 Counterparts |
|
|
131 |
|
11.9 Severability |
|
|
131 |
|
11.10 Integration |
|
|
132 |
|
11.11 GOVERNING LAW |
|
|
132 |
|
11.12 Submission To Jurisdiction; Waivers |
|
|
132 |
|
11.13 Acknowledgments |
|
|
132 |
|
11.14 Releases of Guarantees and Liens |
|
|
133 |
|
11.15 Confidentiality |
|
|
133 |
|
11.16 WAIVERS OF JURY TRIAL |
|
|
133 |
|
11.17 Delivery of Addenda |
|
|
134 |
|
11.18 Interest Rate Limitation |
|
|
134 |
|
11.19 Canadian Borrower |
|
|
134 |
|
11.20 Judgment Currency |
|
|
135 |
|
11.21 Facility Allocation Mechanism |
|
|
135 |
|
11.22 Preservation of Priority |
|
|
138 |
|
|
|
|
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
|
|
[Reserved] |
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 |
Q
|
|
Form of Restatement Date Certificate |
R
|
|
Form of Reaffirmation Agreement |
S
|
|
Form of Lender Authorization |
AMENDED
AND RESTATED
CREDIT AGREEMENT, dated as of February 15, 2007 (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”), as sole lead arranger and sole bookrunner in connection with the
amendment and restatement contemplated by this Agreement (in such capacity, the “
Lead
Arranger”), BEAR XXXXXXX and KEYBANK NATIONAL ASSOCIATION, as initial joint lead arrangers
(collectively, in such capacity, the “
Initial Lead Arrangers”), BEAR XXXXXXX, as sole
bookrunner (in such capacity, the “
Initial 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”), the U.S. Borrower, certain of
the Lenders, and Bear Xxxxxxx Corporate Lending Inc., as administrative agent, among others,
entered into a
Credit Agreement (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”) made 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 Loans”).
WHEREAS, effective as of August 30, 2006 (the “
First Restatement Date”), the U.S.
Borrower, the Canadian Borrower, certain of the Lenders, the Syndication Agent, the
Co-Documentation Agents, the Canadian Administrative Agent, the Canadian Syndication Agent, the
Canadian Documentation Agent, the Administrative Agent and the Collateral Agent, among others,
amended and restated the Original
Credit Agreement (such amended and restated agreement, the
“
First Restated Credit Agreement”), such that, among other things, (a) the U.S. Revolving
Lenders (as defined below) agreed to extend to the U.S. Borrower on a revolving credit basis, in an
aggregate principal amount of up to Three Hundred Ten Million Dollars ($310,000,000), (b) the
Canadian Revolving Lenders (as defined below) agreed to extend to the Canadian Borrower, in U.S.
Dollars or Canadian Dollars, on a revolving credit basis, in an aggregate principal amount of up to
Thirty Five Million Dollars ($35,000,000), and (c) certain of the Lenders (the “
Existing U.S.
Term Lenders”) agreed to permit the U.S. Borrower to repay a portion of the Original Term Loans
in an aggregate principal amount of Two Hundred Seventy
2
Million Dollars ($270,000,000) and to permit the Canadian Borrower to borrow such principal
amount from certain of the Lenders (the “Existing Canadian Term Lenders”), such that the
aggregate principal amount of U.S. Term Loans owing by the U.S. Borrower was equal to One Billion
Four Hundred Seventy Five Million Dollars ($1,475,000,000) (the “Existing U.S. Term Loans”)
and the aggregate principal amount of Canadian Term Loans owing by the Canadian Borrower was equal
to Two Hundred Seventy Million Dollars ($270,000,000) (the “Existing Canadian Term Loans”).
WHEREAS, the U.S. Borrower and the Canadian Borrower desire that certain of the Lenders and
the other parties hereto agree to amend and restate the First Restated
Credit Agreement in its
entirety to: (i) establish U.S. Term Loans to be extended hereunder; (ii) establish Canadian Term
Loans to be extended hereunder; and (iii) make certain other changes as more fully set forth
herein, which amendment and restatement shall become effective upon the Second Restatement Date.
WHEREAS, the Required Lenders have, on or prior to the Second Restatement Date, authorized the
Administrative Agent to execute this Agreement.
WHEREAS, the Borrowers are delivering irrevocable notices to the Administrative Agent and the
Canadian Administrative Agent in accordance with the terms of Section 4.1 of the First Restated
Agreement stating the Borrowers’ intent to, as the case may be, optionally prepay or be deemed to
have optionally prepaid in full the Existing U.S. Terms Loans and Existing Canadian Term Loans
outstanding under the First Restated Agreement.
WHEREAS, (a) the U.S. Term Lenders party hereto have agreed to extend U.S. Term Loans
hereunder in an amount up to their respective U.S. Term Commitments in accordance with Section 2.1,
the proceeds of which shall, as the case may be, optionally prepay or be deemed to have optionally
prepaid in full the Existing U.S. Term Loans on the Second Restatement Date and (b) the Canadian
Term Lenders party hereto have agreed to extend Canadian Term Loans hereunder in an amount up to
their respective Canadian Term Commitments in accordance with Section 2.1, the proceeds of which
shall be used to refinance in full the Existing Canadian Term Loans on the Second Restatement Date.
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 the First
Restated
Credit Agreement and that this Agreement amend and restate in its entirety the First
Restated 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.
3
“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
Revolving Lender became a party to this Agreement as of the First Restatement Date, or by which a
Term Lender becomes a party to this Agreement as of the Second Restatement 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 Arranger, the Initial Lead Arrangers, the Collateral Agent, the Canadian
Syndication Agent, the Canadian Documentation Agent, the Canadian Administrative Agent and the
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 Amended and Restated Credit Agreement.
4
“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:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Eurodollar |
|
Base Rate |
|
Canadian |
|
Acceptance |
|
|
Loans |
|
Loans |
|
Prime Rate 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 |
% |
|
|
N.A. |
|
U.S. Term Loans |
|
|
2.00 |
% |
|
|
1.00 |
% |
|
|
N.A. |
|
|
|
N.A. |
|
Canadian Term Loans |
|
|
2.00 |
% |
|
|
1.00 |
% |
|
|
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 First
Restatement 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
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
5
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 Second Restatement Date, the First Restatement 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) 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
6
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.
“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.
7
“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 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
8
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.
“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
9
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.
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.
10
“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 Second Restatement 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.
“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, (b) the Canadian Guarantee
Agreement, and (c) all other documents delivered to the Collateral Agent granting or perfecting a
Lien on Canadian Property of any Person, including all financing
11
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 a Canadian Term Loan in an aggregate principal amount not to exceed the
amount set forth (i) under the heading “Canadian Term Commitment” opposite such Lender’s name on
Schedule 1 to such Lender’s Lender Addendum, (ii) on such Lender’s Lender Authorization or
(iii) 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 Term Commitments as of the Second Restatement Date is Two Hundred Sixty-Eight Million Six
Hundred Fifty Thousand Dollars ($268,650,000).
“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.
12
“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 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
13
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.
“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.
“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 First Restatement 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.
14
“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 (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
15
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. 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
16
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
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.
“Continuing Canadian Term Lenders”: each lender of Canadian term loans under the
First Restated Credit Agreement that has delivered a signature page or an Addendum hereto or a
Lender Authorization in respect hereof indicating agreement to continue as a Canadian Term Lender
under this Agreement.
17
“Continuing Lenders”: the Continuing Canadian Term Lenders and the Continuing U.S.
Term Lenders.
“Continuing U.S. Term Lenders”: each lender of U.S. terms loans under the First
Restated Credit Agreement that has delivered a signature page or an Addendum hereto or a Lender
Authorization in respect hereof indicating agreement to continue as a U.S. Team Lender under this
Agreement.
“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 Second Restatement 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.
“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.
18
“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 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
19
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.
“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
20
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 minus 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 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.
21
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 Canadian Term Commitments”: the “Canadian Term Commitments” made under (and
as defined in) the First Restated Credit Agreement.
“Existing Canadian Term Lenders”: as defined in the recitals hereto.
“Existing Canadian Term Loans”: as defined in the recitals hereto.
“Existing Lenders” means all Lenders under the First Restated Credit Agreement.
“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 was outstanding on
the First Restatement Date. The Existing Letters of Credit are listed in Schedule 3.7.
“Existing U.S. Term Commitments”: the “U.S. Term Commitments” made under (and as
defined in) the First Restated Credit Agreement.
“Existing U.S. Term Lenders”: as defined in the recitals hereto.
“Existing U.S. Term Loans”: as defined in the recitals hereto.
“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
22
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 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.
“First Restated Credit Agreement”: as defined in the recitals hereto.
“First Restatement Date”: as defined in the recitals hereto.
“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
23
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.
“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 dated as of the Original Closing
Date, as amended and restated as of the First Restatement 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
24
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 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.
“Initial Lead Arrangers”: as defined in the preamble hereto.
25
“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
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 (except for prepayments (or deemed prepayments) on the Second
Restatement Date of Existing Canadian Term Loans or Existing U.S. Term Loans made by the Continuing
Lenders) 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, three or six months thereafter
and (2) in the case of BA Loan, one, 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, three or
six months thereafter and (2) in the case of BA Loans, one, 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
26
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;
(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 Arranger”: as defined in the preamble hereto.
“Lender Authorization”: an instrument substantially in the form of Exhibit S, by
which an Existing Lender may (a) agree to be a Continuing Lender and (b) authorize the
27
Administrative Agent to execute this Agreement on its behalf as of the Second Restatement
Date.
“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.
“Lender Presentation”: the Lender Presentation dated January 2007 and furnished to
the Lenders.
“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.
“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, the
Reaffirmation Agreement 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 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:
|
|
|
Fiscal Quarters Ending During the Period From: |
|
Maximum Consolidated 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 |
29
; 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 X0 0000, 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.
“Mortgage Modifications”: as defined in Section 6.1(h).
“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, in each
case, to the extent, if any, amended by the applicable Mortgage Modifications, 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 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.
30
“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).
“Non-Renewal Canadian Term Loan”: as defined in Section 2.2(c).
“Non-Renewal U.S. Term Loan”: as defined in Section 2.2(c).
“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.
“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
31
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 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.
32
“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 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.
33
“Reaffirmation Agreement”: each Reaffirmation Agreement to be executed by the
Borrowers and the other Loan Parties, substantially in the form of Exhibit R.
“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.
“Refinanced Indebtedness”: the Existing U.S. Term Loans and the Existing Canadian
Term Loans.
“Refinancing”: the repayment in full or deemed repayment in full, as the case may be,
with the proceeds of the U.S. Term Loans and the Canadian Term Loans, of the Refinanced
Indebtedness.
“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.
“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
34
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. § 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.
“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.
“Restatement Certificate”: a certificate, duly executed by a U.S. Term Lender or
Canadian Term Lender, as applicable, substantially, in the form of Exhibit Q.
“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.
35
“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 First Restatement
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.
“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.
36
|
|
|
Year |
|
Seasonal Distribution 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.
“Second Restatement Date”: the date on which the conditions precedent set forth in
Section 6.1 shall have been satisfied or waived.
“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.
“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 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.
38
“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).
“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(h)(ii).
39
“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.
“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.
40
“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 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 Second Restatement 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
41
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.
“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).
42
“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 a U.S. Term Loan in an aggregate principal amount not to exceed the amount set forth
(i) under the heading “U.S. Term Commitment” opposite such Lender’s name on Schedule 1 to
such Lender’s Addendum (ii) on such Lender’s Lender Authorization or (iii) 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
Second Restatement Date is One Billion Four Hundred Sixty-Seven Million Six Hundred Twenty-Five
Thousand Dollars ($1,467,625,000).
“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.
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
43
“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 First Restated Credit Agreement. (a) This Agreement amends
and restates the provisions of the First Restated Credit Agreement and (i) all of the terms and
provisions of the First Restated Credit Agreement shall continue to apply for the period from the
First Restatement Date to the Second Restatement
Date, including any determinations of payment dates, interest rates, Events of Default or any
amount that may be payable to any Agent or any Lender (or their assignees or replacements), and
(ii) the obligations under the First Restated Credit Agreement which have not been repaid shall
from and after the Second Restatement 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 Second Restatement Date, all of the terms and conditions set forth in the
44
First Restated Credit Agreement shall be of no further force and effect, it being understood that
all obligations of each Loan Party under the First Restated Credit Agreement and related Loan
Documents shall be governed by this Agreement and the related Loan Documents from and after the
Second Restatement 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 First Restated Credit Agreement which remain unpaid and outstanding as of the Second
Restatement 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.
(a) Subject to the terms and conditions hereof, (i) each U.S. Term Lender severally agrees to
make (or be deemed to have made) a term loan to the U.S. Borrower in Dollars (each, a “U.S.
Term Loan”) on the Second Restatement Date in an amount not to exceed the amount of the U.S.
Term Commitment of such Lender and (ii) each Canadian Term Lender severally agrees to make (or be
deemed to have made) a term loan to the Canadian Borrower in Dollars (each, a “Canadian Term
Loan”) on the Second Restatement Date in an amount not to exceed the amount of the Canadian
Term Commitment of such Lender. 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.
(b) Subject to the terms and conditions hereof, (i) each of the Continuing U.S. Term Lenders
agrees that the Existing U.S. Term Loans made by such Continuing U.S. Term Lender under the First
Restated Credit Agreement shall remain outstanding on and after the Second Restatement Date as U.S.
Term Loans made pursuant to this Agreement, and shall be deemed to constitute U.S. Term Loans made
in satisfaction of its obligation to make U.S. Term Loans on the Second Restatement Date in
accordance with Section 2.1(a) in an amount equal to the amount of such Existing U.S. Term Loans
and (ii) each of the Continuing Canadian Term Lenders agrees that the Existing Canadian Term Loans
made by such Continuing Canadian Term Lender under the First Restated Credit Agreement shall remain
outstanding on and after the Second Restatement Date as Canadian Term Loans made pursuant to this
Agreement, and shall be deemed to constitute Canadian Term Loans made in satisfaction of its
obligation to make
Canadian Term Loans on the Second Restatement Date in accordance with Section 2.1(a) in an
amount equal to the amount of such Existing Canadian Term Loans. Such Existing U.S. Term Loans
shall on and after the Second Restatement Date have all of the rights and benefits of U.S. Term
Loans as set forth in this Agreement and the other Loan Documents and such Existing Canadian Term
Loans shall on and after the Second Restatement Date have all of the rights and benefits of
Canadian Term Loans as set forth in this Agreement and the other Loan Documents. Notwithstanding
anything herein to the contrary, all such Term Loans deemed so made hereunder on the Second
Restatement Date pursuant to this Section 2.1 that are Eurodollar Loans
45
will have initial Interest
Periods ending on the same dates as the Interest Periods applicable to the Existing U.S. Term Loans
and/or Existing Canadian Term Loans, as applicable, of such Continuing Lenders.
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 Second
Restatement Date) requesting that the U.S. Term Lenders make U.S. Term Loans on the Second
Restatement Date and specifying the amount to be borrowed. Upon receipt of such notice the
Administrative Agent shall promptly notify each U.S. Term Lender thereof.
Not later than 1:00 P.M.,
New York City time, on the Second Restatement Date, each U.S. Term Lender
shall make available to the Administrative Agent at the Funding Office an amount in immediately
available funds (except as specified in Section 2.1(b)) equal to the U.S. Term Loan or U.S. Term
Loans to be made by such U.S. Term Lender. The Administrative Agent shall credit the account of
the U.S. Borrower on the books of such office of the Administrative Agent with the aggregate of the
amounts made available to the Administrative Agent by the U.S. Term Lenders in immediately
available funds or in accordance with Section 2.1(b).
(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 Second Restatement Date) requesting that the Canadian Term Lenders make Canadian Term
Loans on the Second Restatement Date and specifying the amount to be borrowed. 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 Second Restatement Date each Canadian Term Lender shall
make available to the Canadian Administrative Agent at the Canadian Payment Office an amount in
immediately available funds (except as specified in Section 2.1(b)) 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 or in accordance with Section 2.1(b).
(c) On the Second Restatement Date, Interest Periods with respect to the Term Loans shall be
as follows: (i) U.S. Term Loans shall be made, or deemed made, as Eurodollar Loans in an amount
equal to the amount of the Existing U.S. Term Loans then outstanding as Eurodollar Loans (such U.S.
Term Loans to correspond in amount to Existing U.S. Term Loans of a given interest period), (ii)
Canadian Term Loans shall be made, or deemed made, as Eurodollar Loans in an amount equal to the
amount of the Existing Canadian Term Loans then outstanding as Eurodollar Loans (such Canadian Term
Loans to correspond in amount to Existing Canadian Term Loans of a given interest period), (iii)
Interest Periods for the U.S. Term Loans described in clause (i) above shall end on the same dates
as the Interest Periods applicable for the corresponding Existing U.S. Term Loans described in
clause (i) above, and the Eurodollar Rates applicable to such U.S. Term Loans during such Interest
Periods shall be the same as those applicable to such Existing U.S. Term Loans, (iv) Interest
Periods for the Canadian Term Loans
46
described in clause (ii) above shall end on the same dates as
the Interest Periods applicable for the corresponding Existing Canadian Term Loans described in
clause (ii) above, and the Eurodollar Rates applicable to such Canadian Term Loans during such
Interest Periods shall be the same as those applicable to such Existing Canadian Term Loans, (v)
U.S. Term Loans shall be made or deemed made as Base Rate Loans in amount equal to the amount of
Existing U.S. Term Loans then outstanding as Base Rate Loans, and (vi) Canadian Term Loans shall be
made or deemed made as Base Rate Loans in amount equal to the amount of Existing Canadian Term
Loans then outstanding as Base Rate Loans. No Borrower will be required to make any payments under
Section 4.11 of the First Restated Credit Agreement to Existing U.S. Term Lenders that become U.S.
Term Lenders or to Existing Canadian Term Lenders that become Canadian Term Lenders in connection
with the exchange of their Existing U.S. Term Loans for U.S. Term Loans or their Existing Canadian
Term Loans for Canadian Term Loans, as applicable, in each case, except to the extent that (i) any
U.S. Term Lender’s U.S. Term Loans are less than such U.S. Term Lender’s Existing U.S. Term Loans
(such amount, a “Non-Renewed U.S. Term Loan”) or (ii) any Canadian Term Lender’s Canadian
Term Loans are less than such Canadian Term Lender’s Existing Canadian Term Loans (such amount, a
“Non-Renewed Canadian Term Loan”), in which case the applicable Borrower shall be required
to make payments under Section 4.11 of the First Restated Credit Agreement to each applicable U.S.
Term Lender based on the amount of such U.S. Term Lender’s Non-Renewed U.S. Term Loan and to each
applicable Canadian Term Lender based on the amount of such Canadian Lender’s Non-Renewed Canadian
Term Loan.
2.3 Repayment of Term Loans. (a) The U.S. Term Loan of each U.S. Term Lender
shall mature in 23 consecutive installments, commencing on March 31, 2007, 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 |
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 |
|
47
|
|
|
|
|
Installment |
|
Principal Amount |
December 31, 2011
|
|
$ |
3,687,500 |
|
March 31, 2012
|
|
$ |
3,687,500 |
|
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 March 31, 2007, 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 |
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 |
|
September 30, 2011
|
|
$ |
675,000 |
|
December 31, 2011
|
|
$ |
675,000 |
|
February
17, 2012
|
|
$255,150,000 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
48
Commitment then in
effect. During the Revolving Commitment Period the U.S. Borrower may 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
49
the respective lengths of
the initial Interest Period therefor. Each borrowing under the U.S. 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 theretofore 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. 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 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; 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
51
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 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
52
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 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 (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 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 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 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 First Restatement 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 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.
58
(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 Second Restatement 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).
(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 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 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 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 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 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 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).
(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.
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 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) Upon its receipt or deemed receipt of the proceeds of the U.S. Term Loans, the U.S.
Borrower, in accordance with its irrevocable voluntary election delivered to the Administrative
Agent in connection the refinancing of the Existing U.S. Term Loans, shall apply a portion of such
proceeds sufficient to (i) refinance in full the Existing U.S. Term Loans, (ii) pay all accrued and
unpaid interest and fees, if any, on all Existing U.S. Term Loans held by Existing U.S. Term
Lenders that are not Continuing Lenders, (iii) pay to each Existing U.S. Term Lender that is not a
Continuing Lender all amounts then due and owing as a result of the prepayment of such Existing
U.S. Term Lender’s Existing U.S. Term Loans and (iv) pay all other Obligations then due and owing
to the Existing U.S. Term Lenders, in their capacity as such, under the First Restated Agreement.
Upon its receipt or deemed receipt of the proceeds of the Canadian Term Loans, the Canadian
Borrower, in accordance with its irrevocable voluntary election delivered to the Administrative
Agent and the Canadian Administrative Agent in connection the refinancing of the Existing Canadian
Term Loans, shall apply a portion of such proceeds sufficient to (i) refinance in full the Existing
Canadian Term Loans, (ii) pay all accrued and unpaid interest and fees, if any, on all Existing
Canadian Term Loans held by Existing Canadian Term Lenders that are not Continuing Lenders, (iii)
pay to each Existing Canadian
Term Lender that is not a Continuing Lender all amounts then due and owing as a result of the
prepayment of such Existing Canadian Term Lender’s Existing Canadian Term Loans and (iv) pay all
other Obligations then due and owing to the Existing Canadian Term Lenders, in their capacity as
such, under the First Restated Credit Agreement.
(g) 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 principal amount of the Canadian Term
Loans as of the Second Restatement Date (after giving effect to Sections 2.1 and 5.16), 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(g) because of such Event of Default.
(h) 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 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 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.
(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
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 Second Restatement 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
73
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).
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
74
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.
(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
75
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, 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
76
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);
(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
77
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, 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 First Restatement 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
78
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.
(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
79
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 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
80
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 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),
81
(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 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 G 1, G 2, G 3, G 4, G 5 or G 6, respectively (a “U.S. Term Note”, “Canadian
Term Note”, “U.S. Revolving Note”, “Canadian
82
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:
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 were furnished to the
Administrative Agent and the Syndication Agent, prior to the First Restatement Date, was prepared
giving effect (as if such events had occurred on such date) to (i) the consummation of the
Transaction (as defined in the First Restated Credit Agreement), (ii) the Loans made on the
Original Closing Date and the Loans made on the First Restatement 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 was 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
83
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.
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,
84
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.
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.
85
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.
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
86
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
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 Second Restatement 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.
87
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 Existing Canadian Term Loans were used on the First Restatement Date by the
Canadian Borrower solely to return capital to its parent and such proceeds were in turn 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 of $270,000,000. The proceeds of the
Term Loans shall be used on the Second Restatement Date to refinance in full the Refinanced
Indebtedness in accordance with the exercise by the Borrowers of their optional prepayment rights
in respect thereof. 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;
(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
88
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, the Lender
Presentation 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 First Restatement Date and, in the case of the
Lender Presentation, 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, the Lender Presentation or in any other 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 Second
Restatement Date, there are no Statutory Prior Claims that encumber any Pledged Stock,
89
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 Second Restatement 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.
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.
90
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 First
Restatement Date, as each such policy may thereafter be endorsed to reflect the matters shown on
the 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
91
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;
(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
92
6.1 Conditions to Second Restatement Date. The effectiveness of this Agreement and
the amendment and restatement evidenced hereby, and the agreement of each Term Lender to make the
extension of credit requested to be made by it on the Second Restatement 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) Loan Documents. All legal matters incident to this Agreement and the other
Loan Documents shall be satisfactory to the Term Lenders, to the Issuing Bank and to the
Administrative Agent and the Administrative Agent shall have received (i) this Agreement,
or, in the case of each Term Lender, an Addendum or Lender Authorization, executed and
delivered by each Agent, the Borrowers and each Person that is a Term Lender as of the
Second Restatement Date, (ii) each other Loan Document required to be executed and delivered
by each party thereto on the Second Restatement Date, and (iii) 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) Concurrent Transactions. The Borrowers shall have delivered irrevocable
notice to the Administrative Agent and the Canadian Administrative Agent in accordance with
the terms of Section 4.1 of the First Restated Credit Agreement stating (i) the Borrowers’
intent to, as the case may be, optionally prepay or be deemed to have optionally prepaid in
full the Existing U.S. Term Loans and Existing Canadian Term Loans outstanding under the
First Restated Credit Agreement, and (ii) that the Second Restatement Date shall be the
effective date of such prepayment.
(c) Lien Searches. The Administrative Agent shall have received the results of
recent judgment and execution searches in Ontario and Nova Scotia, and such searches shall
reveal no judgments or executions against the Canadian Borrower, Canada’s Wonderland
Company, or their respective assets, which could affect the priority of the Liens securing
the Canadian Obligations.
(d) 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 Second Restatement Date.
(e) Restatement Date Certificate. The Administrative Agent shall have received
(i) a certificate of each Loan Party, dated the Second Restatement Date, substantially in
the form of Exhibit Q, 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; provided that in lieu of delivering certificates of
incorporation for each Loan Party, the Borrowers may deliver a certificate of a duly
authorized officer certifying that there have been no material amendments to those
93
certificates of incorporation previously delivered to the Administrative Agent in connection
with First Restated Agreement.
(f) 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;
(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;
(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;
(ix) [Reserved];
(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
94
(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.
(g) 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.
(h) Mortgages, etc. (i) (i) The Collateral Agent shall have received
modifications (the “Mortgage Modifications”) to each Mortgage (as defined in the
First Restated Agreement) with respect to each Mortgaged Property as the Collateral Agent
reasonably determines as being necessary in connection with the amendment and restatement
contemplated hereby, 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, as amended in respect of the First Restated
Credit Agreement, amended to reflect any Mortgage which has been changed, by way of
amendment, amendment and restatement or otherwise since the First Restatement Date
or as amended in respect of this Agreement (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.
95
(iii) If requested by the Collateral Agent, 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.
(i) Non-Continuing Lenders. The Administrative Agent shall have received
written verification acceptable to it that the Lenders under the Original Credit Agreement
that are not Continuing Lenders have been, or will be, paid in full all amounts required to
be paid to them by Borrower pursuant to Section 4.2(g).
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:
96
(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 “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
97
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
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 First Restatement
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;
98
(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;
(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
99
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 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.
100
(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 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 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) (a) With respect to any Property acquired after
the First Restatement 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 First Restatement 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
101
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 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 First Restatement 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 First
Restatement 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
102
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 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 First
Restatement 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.
103
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 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. Coordinate with the Syndication Agent to finalize the surveys of the
Mortgaged Properties delivered to the Collateral Agent prior to the date hereof pursuant to Section
7.13 of the First Restated Credit Agreement and use diligent and good faith efforts to cause the
applicable surveyors, within sixty (60) days (or, in the case of the Mortgaged Property
situated in Erie County, Ohio and known as “Cedar Point”, 120 days) following the Second
Restatement Date, to incorporate into their respective final surveys the requests and comments of
the Syndication Agent and its counsel. The Borrowers shall use diligent and good faith efforts to
deliver to the Syndication Agent and the Collateral Agent and to the applicable title insurance
company, no later than the end of such 60-day period (or, as the case may be, 120-day period), a
final survey in respect of each Mortgaged Property, reflecting such requests and comments of the
Syndication Agent and certified to the Collateral Agent and to such title insurance company in a
manner reasonably satisfactory to each of them.
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 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
104
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 First Restatement Date, was subject to
the Restriction Agreement.
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:
105
|
|
|
Fiscal Quarters Ending |
|
Consolidated |
During the Following Periods: |
|
Leverage Ratio |
Fiscal Q3 2006 through and including the last day of Fiscal
Q3 2007
|
|
6.75 to 1.00 |
Fiscal Q4 2007 through and including the last day of Fiscal
Q3 2008
|
|
5.75 to 1.00 |
Fiscal Q4 2008 through and including the last day of Fiscal
Q3 2009
|
|
5.50 to 1.00 |
Fiscal Q4 2009 through and including the last day of Fiscal
Q3 2010
|
|
5.25 to 1.00 |
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
Fiscal Q3 2007
|
|
1.05 to 1.00 |
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
106
(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 First Restatement Date 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 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);
(i) earn out obligations, deferred compensation and purchase price adjustment
obligations in connection with Permitted Acquisitions or Dispositions permitted by Section
8.5; and
(j) 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:
107
(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;
(f) Liens in existence on the First Restatement Date 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 First Restatement 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)
108
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 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
109
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;
(e) the Disposition of other property having a fair market value not to exceed
$250,000,000 in the aggregate from and after the First Restatement Date; 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:
110
(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:
(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 First Restatement Date, (ii) intercompany Investments by any Group
Member in Cedar Fair LP or any Person that, prior to such Investment, is a
111
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 First Restatement 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 from and after the First
Restatement Date; 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 from and after the First Restatement Date.
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 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
112
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).
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
113
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 were engaged on
the First Restatement 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 First Restatement 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 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
114
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 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
115
“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
(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
116
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 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
117
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.
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.
118
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 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
119
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, 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.
120
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 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
121
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 Arranger and the
Initial 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 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 Second Restatement Date and (2) at such other times as are required under the USA
Patriot Act.
122
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 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
123
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 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
124
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 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: Xxxxx Xxxxxx |
|
|
|
|
Telecopy: (000) 000-0000 |
|
|
|
|
Telephone: (000) 000-0000 |
125
|
|
|
|
|
|
|
The Administrative Agent:
|
|
KeyBank National Association |
|
|
|
|
000 Xxxxxx Xxxxxx |
|
|
|
|
Xxxxxxxxx, Xxxx 00000 |
|
|
|
|
Attention: Xxxxx Xxxxx |
|
|
|
|
Telecopy: (000) 000-0000 |
|
|
|
|
|
|
|
The Canadian Administrative Agent:
|
|
General Electric Capital Corporation |
|
|
|
|
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.
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.
126
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 Second Restatement Date (in the case of amounts to be paid on the Second
Restatement 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 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. (000) 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
127
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 Lender
shall be made without the consent of Cedar Fair LP unless such assignment is made
upon and during the continuance 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
128
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 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
129
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, 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)
130
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 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
131
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 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.
132
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 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
133
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 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
134
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 or Lender Authorization 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.
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.
135
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 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
136
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
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
137
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 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
138
(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 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.
11.22 Preservation of Priority. It is the intention of each of the parties hereto
that the First Restated Credit Agreement be amended and restated in its entirety pursuant to this
Agreement so as to preserve the perfection and priority of all Liens securing indebtedness and
obligations under the First Restated Credit Agreement and the Original Credit Agreement and that
all Indebtedness and Obligations of the Borrowers and the other Loan Parties hereunder shall be
secured by the Liens evidenced under the Loan Documents and that this Agreement does not
139
constitute
a novation or termination of the obligations and liabilities existing under the First Restated
Credit Agreement or the Original Credit Agreement (or serve to terminate Sections 4.11, 10.7 and
11.5 of the First Restated Agreement or any Borrower’s obligations thereunder with respect to the
Lenders), except for the repayment (or deemed repayment) of the Refinanced Indebtedness as stated
herein.
[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, |
|
|
|
|
Initial 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 Initial 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 |
|
|
|
|
|
|
Eurodollar |
|
Base Rate |
|
Prime Rate |
|
Acceptance |
|
Commitment |
Pricing 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 First Restatement 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.
“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.
2
“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 |