<PAGE>
FORM 10 - K
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 1999
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ________ to ________.
Commission file number 1-9444
CEDAR FAIR, L.P.
(Exact name of Registrant as specified in its charter)
DELAWARE 34-1560655
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Cedar Point Drive, Sandusky, Ohio 44870-5259
(Address of principal executive offices) (zip code)
Registrant's telephone number, including area code (419) 626-0830
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
Depositary Units New York Stock Exchange
(Representing Limited Partner
Interests)
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the Registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file
such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 of Regulation S-K is not contained herein, and will
not be contained, to the best of Registrant's knowledge, in
definitive proxy or information statements incorporated by
reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
The aggregate market value of Depositary Units held by non-
affiliates of the Registrant based on the closing price of such
units on February 1, 2000 of $18.6875 per unit was $924,000,000.
Number of Depositary Units representing limited partner interests
outstanding as of February 1, 2000: 51,980,183.
DOCUMENTS INCORPORATED BY REFERENCE
1999 Annual Report to Unitholders incorporated by reference into
Part II (Items 5-8) and Part IV (Item 14).
*********************************
The Exhibit Index is located at Page 21
Page 1 of 152 pages
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CEDAR FAIR, L.P.
INDEX
<TABLE>
<CAPTION>
<S> <C> <C>
PART I PAGE
Item 1. Business 3
Item 2. Properties 7
Item 3. Legal Proceedings 8
Item 4. Submission of Matters to a Vote 8
of Security Holders
PART II
Item 5. Market for Registrant's
Depositary Units and Related 9
Unitholder Matters
Item 6. Selected Financial Data 9
Item 7. Management's Discussion and
Analysis of Financial Condition 9
and Results of Operations
Item 8. Financial Statements and 9
Supplementary Data
Item 9. Changes in and Disagreements with
Accountants on Accounting and 9
Financial Disclosure
PART III
Item 10. Directors and Executive Officers 10
of Registrant
Item 11. Executive Compensation 14
Item 12. Security Ownership of Certain
Beneficial Owners and Management 16
Item 13. Certain Relationships and Related 17
Transactions
PART IV
Item 14. Exhibits, Financial Statement
Schedules, and Reports on Form 8-K 18
Signatures 20
</TABLE>
<PAGE>
PART I
ITEM 1. BUSINESS.
Cedar Fair, L.P. is a publicly traded Delaware limited
partnership managed by Cedar Fair Management Company (the
"General Partner").
Cedar Fair, L.P. and its affiliated companies (the "Partnership")
own and operate five amusement parks: Cedar Point, located on
Lake Erie between Cleveland and Toledo in Sandusky, Ohio; Knott's
Berry Farm, located near Los Angeles in Buena Park, California;
Dorney Park & Wildwater Kingdom ("Dorney Park"), located near
Allentown in South Whitehall Township, Pennsylvania; Valleyfair,
located near Minneapolis-St. Paul in Shakopee, Minnesota; and
Worlds of Fun/Oceans of Fun ("Worlds of Fun"), located in Kansas
City, Missouri. The parks are family-oriented, with recreational
facilities for people of all ages, and provide clean and
attractive environments with exciting rides and entertainment.
The Partnership also owns and operates separate-gated water parks
at Cedar Point, Worlds of Fun and Knott's Berry Farm, and
another, which was acquired in December 1999, near San Diego in
Chula Vista, California. All principal rides and attractions at
the parks are owned and operated by the Partnership and its
affiliated companies.
The Partnership's four seasonal parks are generally open daily
from 9:00 a.m. to 10:00-12:00 at night from early May until Labor
Day, after which they are open during weekends in September and
October. As a result, virtually all of the operating revenues of
these parks are derived during an approximately 130-day operating
season. Knott's Berry Farm is open daily from 9:00-10:00 a.m. to
6:00-12:00 at night on a year-round basis. Each park charges a
basic daily admission price, which allows unlimited use of all
rides and attractions with the exception of Challenge Park and
Soak City at Cedar Point, Challenge Park at Valleyfair, go-kart
and bumper boat attractions at Dorney Park, and Oceans of Fun and
RipCord at Worlds of Fun. The demographic groups that are most
important to the parks are young people ages 12 through 24 and
families. Families are believed to be attracted by a combination
of the rides and entertainment and the clean, wholesome
atmosphere. Young people are believed to be attracted by the
action-packed rides. During their operating seasons, the parks
conduct active television, radio, and newspaper advertising
campaigns in their major market areas.
The Partnership also operates Knott's Camp Snoopy, a 7-acre
indoor amusement park at the Mall of America in Bloomington,
Minnesota, under a management contract that expires in 2012.
CEDAR POINT
Cedar Point, which was first developed as a recreational area in
1870, is located on a peninsula in Sandusky, Ohio bordered by
Lake Erie and Sandusky Bay, approximately 60 miles west of
Cleveland and 100 miles southeast of Detroit. Cedar Point is
believed to be the largest seasonal amusement park in the United
States, measured by the number of rides and attractions and the
ride capacity per hour. It serves a six-state region in the
Midwestern United States, which includes nearly all of Ohio and
Michigan, western Pennsylvania and New York, northern West
Virginia and Indiana and southwestern Ontario, Canada. The
park's total market area includes approximately 22 million
people, and the major areas of dominant influence in this market
area, which are Cleveland, Akron, Toledo, Detroit, Columbus,
Flint, Saginaw and Youngstown, include approximately 12 million
people.
The main amusement areas of Cedar Point consist of over two miles
of midways, with more than 65 rides and attractions, including
the new "Millennium Force," a 310-foot-tall, world-record-
breaking roller coaster, which is scheduled to open in May 2000;
"Magnum XL-200," "Raptor," "Mantis" and "Mean Streak," which are
among the world's tallest steel, inverted, stand-up and wood
roller coasters, respectively; nine additional roller coasters;
"Power Tower," a 300-foot-tall thrill ride; live entertainment
shows featuring talented college students in four theaters;
"Snake River Falls," one of the world's tallest water flume
rides; "Camp Snoopy," a family play-land themed around the
popular "PEANUTS" comic strip characters; the Cedar Point
Cinema, which features a film using an IMAX projection system on
a 66-foot by 88-foot screen in a 950-seat theater; a museum;
bathing beach facilities; "Soak City" water park, an extra-charge
attraction that includes "Zoom Flume," a large water slide raft
ride, twelve additional water slides, two river rafting rides,
two children's activity areas, and a giant wave pool; and
"Challenge Park," an extra-charge attraction area that includes
"RipCord," a free-fall ride from a height of more than 15
stories, a 36-hole themed miniature golf course and three go-kart
tracks. In addition, there are more than 50 restaurants, fast
food outlets and refreshment stands, and a number of gift shops,
novelty shops and game areas.
<PAGE>
Cedar Point also owns and operates four hotel facilities.
Breakers Express, scheduled to open for the 2000 season, is a 350-
room, limited-service seasonal hotel, which will be located near
the Causeway entrance to the park. Cedar Point's largest hotel,
the historic Hotel Breakers, has more than 600 guest rooms,
including 230 in the 10-story Breakers Tower. Hotel Breakers has
various dining and lounge facilities, a private beach, lake
<PAGE>
swimming, a conference/meeting center and two outdoor pools;
and the Breakers Tower has 18 tower suites with spectacular
views, an indoor pool, and a TGI Friday's restaurant.
In addition to Breakers Express and the Hotel Breakers, Cedar
Point offers the lakefront Sandcastle Suites Hotel, which
features 187 suites, a private beach, lake swimming, a courtyard
pool, tennis courts and the Breakwater Cafe, a contemporary
waterfront restaurant. The park's only year-round hotel is the
Radisson Harbour Inn, a 237-room full-service hotel, located at
the Causeway entrance to the park, with an adjoining TGI Friday's
restaurant.
Cedar Point also owns and operates the Cedar Point Marina, one of
the largest full-service marinas on the Great Lakes, which
provides dockage facilities for over 650 boats, and has been
fully renovated over the past two seasons with floating docks and
full guest amenities; and Camper Village, which provides sites
for approximately 225 recreational vehicles.
The Partnership, through a wholly owned subsidiary, owns and
operates the Cedar Point Causeway across Sandusky Bay. This
Causeway is a major access route to Cedar Point. The Partnership
also owns dormitory facilities located near the park that house
up to 2,875 of the park's approximately 3,800 seasonal employees.
KNOTT'S BERRY FARM
Knott's Berry Farm, located near Los Angeles in Buena Park,
California, first opened in 1920 and was acquired by the
Partnership in late 1997. Knott's Berry Farm is one of several
year-round theme parks in Southern California and serves a total
market area of approximately 20 million people centered in Orange
County, and a large national and international tourism
population.
Knott's Berry Farm is comprised of six distinctively themed
areas, including "Ghost Town," "Wild Water Wilderness," "The
Boardwalk," "Indian Trails," "Fiesta Village" and "Camp Snoopy."
The park offers more than 40 rides and attractions, including the
new "Perilous Plunge," a 121-foot-tall water ride that will reach
a speed of 50 mph and generate the largest splash in amusement
park history; "Supreme Scream," a 300-foot-tall thrill ride;
"Ghost Rider," one of the tallest, longest and fastest wooden
roller coasters in the West; four additional roller coasters;
"Bigfoot Rapids," a white water raft ride; "Timber Mountain Log
Ride," one of the first log flume rides in the United States; a
nostalgic train ride; an antique Dentzel carousel; an old-
fashioned ferris wheel; a 2,100-seat theatre; a children's
activity area themed with the popular "PEANUTS" comic strip
characters; live entertainment shows in 22 indoor and outdoor
theatre venues; and "Independence Hall," an authentic replica of
the Philadelphia original, complete with a 2,075 pound Liberty
Bell. In addition, there are more than 30 restaurants,
fast food outlets and refreshment stands, and a number of gift
shops, novelty shops and game areas in the park, as well as
Knott's California Marketplace, a dining and shopping area that
is located outside the park's gates and is available free of
charge.
The park is also renowned for its seasonal promotions, including
a special Christmas promotion, "Knott's Merry Farm," and a
spectacular Halloween event called "Knott's Scary Farm," which
celebrated its 27th year in 1999 and is widely acknowledged as
the best in the industry.
Beginning in June 2000, the park will also offer "Knott's Soak
City U.S.A.," an extra-charge seasonal water park that will
feature 21 separate water rides and attractions, including 16
high-speed water slides, a wave pool, a lazy river, a children's
activity area, food and merchandise shops, and a second story
sundeck available for public dining and catered events.
Knott's Berry Farm also owns and operates the Radisson Resort
Hotel, a 320-room, full-service hotel located adjacent to the
park, which was acquired in February 1999 and has been completely
renovated for the 2000 season.
<PAGE>
In December 1999, the Partnership acquired White Water Canyon,
located just south of San Diego in Chula Vista, California. This
three-year-old water park offers its guests more than 20 water
rides and attractions, including 16 water slides, a wave pool and
a children's activity area, as well as food and merchandise
shops. Beginning with the 2000 season, the park will be renamed
"Knott's Soak City U.S.A.-San Diego."
DORNEY PARK & WILDWATER KINGDOM
Dorney Park, which was first developed as a summer resort area in
1884, was acquired by the Partnership in 1992, and is located
near Allentown in South Whitehall Township, Pennsylvania. Dorney
Park is one of the largest amusement parks in the Northeast and
serves a total market area of approximately 35 million people.
The park's major markets include Philadelphia, New Jersey, New
York City, Lancaster, Harrisburg, York, Scranton, Wilkes-Barre,
Hazleton and the Lehigh Valley.
Dorney Park features more than 50 rides and attractions,
including "Camp Snoopy," a family play-land themed around the
popular "PEANUTS" comic strip characters, and "Mad Mouse," a
modern version of the classic "Wild Mouse" ride, both of which
are scheduled to open in 2000; "Dominator," a 200-foot-tall
thrill ride; "Steel Force," one of the tallest and fastest roller
coasters in the world; "Hercules," a world-class wooden roller
coaster; three additional roller coasters; "White Water Landing,"
one of the world's tallest water flume rides featuring a guest
splash basin; "Thunder Canyon," a white-water rafting ride;
the "Cedar Creek Cannonball" train ride; "Wildwater
Kingdom," one of the largest water parks in the United States
featuring twelve water slides, including the "Pepsi Aquablast,"
the longest elevated water slide in the world, a giant wave pool
and two children's activity areas; "Thunder Creek Mountain," a
water flume ride; a giant ferris wheel; live musical shows
featuring talented college students; an antique Dentzel carousel
carved in 1921; and beginning in 2000 an extra-charge attraction
called "SkyScraper," which stands 85 feet tall and spins
passengers seated at opposite ends of a long vertical arm at
speeds of more than 50 mph. In addition, there are more than 30
restaurants, fast food outlets and refreshment stands, and a
number of gift shops, novelty shops and game areas.
VALLEYFAIR
Valleyfair, which opened in 1976 and was acquired by the
Partnership's predecessor in 1978, is located near Minneapolis-
St. Paul in Shakopee, Minnesota, and is the largest amusement
park in Minnesota. Valleyfair's market area is centered in
Minneapolis-St. Paul, which has a population of approximately two
million, but the park also draws visitors from other areas in
Minnesota and surrounding states with a combined population of
eight million.
Valleyfair offers more than 35 rides and attractions, including
the new "Power Tower," a 275-foot-tall thrill ride, which is
scheduled to open in 2000; "Wild Thing," one of the tallest and
fastest roller coasters in the world; "Mad Mouse," a family-style
roller coaster; four additional roller coasters; a water park
named "Whitewater Country," which includes "Hurricane Falls," a
large water slide raft ride, and "Splash Station," a children's
water park; "Thunder Canyon," a white-water raft ride; "The
Wave," a water flume ride featuring a guest splash basin; a
nostalgic train ride; a giant ferris wheel; a log flume ride; a
500-seat amphitheater; a kiddie ride area; "Challenge Park," an
extra-charge attraction area which includes "RipCord," a free-
fall ride from a height of more than 15 stories, a Can-Am-style
go-kart track and a 36-hole themed miniature golf course;
"Berenstain Bear Country," which is an indoor/outdoor children's
activity area; "The Hydroblaster," a 40-foot tall wet/dry slide,
or "water coaster;" and a 430-seat indoor theatre for live show
presentations. In addition, there are more than 20 restaurants,
fast food outlets and refreshment stands, and a number of gift
shops, novelty shops and game areas.
WORLDS OF FUN
Worlds of Fun, which opened in 1973, and Oceans of Fun, the
adjacent water park that opened in 1982, were acquired by the
Partnership in 1995. Located in Kansas City, Missouri, Worlds of
Fun serves a total market area of approximately seven million
people centered in Kansas City, but also including most of
Missouri, as well as portions of Kansas and Nebraska.
<PAGE>
Worlds of Fun is a traditional amusement park themed around Jules
Verne's adventure book Around the World in Eighty Days. The park
offers more than 50 rides and attractions, including the new
"Boomerang," a 12-story-tall steel roller coaster, scheduled to
open in 2000; "Mamba," one of the tallest and fastest roller
coasters in the world: "Timber Wolf," a world-class wooden roller
coaster; "Orient Express," a steel looping roller coaster;
"Detonator," a 185-foot-tall thrill ride, which launches riders
straight up its twin-tower structure; "RipCord," an extra-charge
attraction which lifts riders to a height of more than 15 stories
before dropping them back to earth in a free fall; "Monsoon," a
water flume ride; "Fury of the Nile," a white-water rafting ride;
a 4,000-seat outdoor amphitheater; live musical shows; and
"Berenstain Bear Country," a major indoor/outdoor children's
activity area. Oceans of Fun, which requires a separate
admission fee, features a wide variety of water attractions
including "Hurricane Falls," a large water slide raft ride; "The
Typhoon," one of the world's longest dual water slides; a giant
wave pool; and several children's activity areas, including
"Crocodile Isle." In addition, the park offers more than 25
restaurants, fast food outlets and refreshment stands, and a
number of gift shops, novelty shops and game areas.
WORKING CAPITAL AND CAPITAL EXPENDITURES
The Partnership carries significant receivables and inventories
of food and merchandise during the operating season. Seasonal
working capital needs are met with a revolving credit facility.
The General Partner believes that annual park attendance is to
some extent influenced by the investment in new attractions from
year to year. Capital expenditures are planned on a seasonal
basis with the majority of such capital expenditures incurred in
the period from October through May, just prior to the beginning
of the peak operating season. Capital expenditures made in a
calendar year may differ materially from amounts identified with
a particular operating season because of timing considerations
such as weather conditions, site preparation requirements and
availability of ride components, which may result in accelerated
or delayed expenditures around calendar yearend.
COMPETITION
In general, the Partnership competes with all phases of the
recreation industry within its primary market areas of Cleveland,
Detroit, Los Angeles, San Diego, Philadelphia, Minneapolis-St.
Paul, and Kansas City, including several other amusement/theme
parks in the Partnership's market areas. The Partnership's
business is subject to factors generally affecting the recreation
and leisure market, such as economic conditions, changes in
discretionary spending patterns and weather conditions.
In Cedar Point's major markets, its primary amusement park
competitors are Paramount Kings Island in southern Ohio, and Sea
World of Ohio and Six Flags-Ohio near Cleveland.
In Southern California, Knott's Berry Farm's primary
amusement/theme park competitors are Disneyland, which is
approximately 10 minutes away, Universal Studios, approximately
40 minutes away, and Six Flags Magic Mountain, approximately 75
minutes away. The San Diego Zoo and Sea World-San Diego are
located approximately 90 minutes from Knott's. LEGOLAND, a
children's park that opened in 1999, is located approximately 70
minutes away in Carlsbad, California.
Dorney Park faces significant competition, with Hershey Park in
central Pennsylvania and Six Flags Great Adventure in New Jersey
being the major competitors in its market area.
<PAGE>
In Worlds of Fun's major markets, its primary amusement park
competitors are Six Flags Over Mid-America in eastern Missouri
and Silver Dollar City in southern Missouri.
Adventureland, a theme park in Des Moines, Iowa, is located
approximately 250 miles from Valleyfair and Worlds of Fun.
The principal competitive factors in the amusement park industry
include the uniqueness and perceived quality of the rides and
attractions in a particular park, its proximity to metropolitan
areas, the atmosphere and cleanliness of the park, and the
quality and variety of the food and entertainment available. The
Partnership believes that its amusement parks feature a
sufficient quality and variety of rides and attractions,
restaurants, gift shops and family atmosphere to make them highly
competitive with other parks.
GOVERNMENT REGULATION
All rides are run and inspected daily by both the Partnership's
maintenance and ride operations personnel before being put into
operation. The parks are also periodically inspected by the
Partnership's insurance carrier and, at Cedar Point and Dorney
Park, by state ride-safety inspectors.
EMPLOYEES
The Partnership has approximately 1,200 full-time employees.
During the operating season, Cedar Point, Valleyfair, Dorney Park
and Worlds of Fun have approximately 3,800, 1,500, 2,700 and
2,200 seasonal employees, respectively, most of whom are high
school and college students. Knott's Berry Farm hires
approximately 1,000 seasonal employees for peak periods and 1,200
part-time employees who work year-round. Approximately 2,800 of
Cedar Point's seasonal employees and 380 of Valleyfair's seasonal
employees live in dormitories owned by the Partnership. The
Partnership maintains training programs for all new employees,
and believes that its relations with its employees are good.
ITEM 2. PROPERTIES.
Cedar Point is located on approximately 365 acres owned by the
Partnership on the Cedar Point peninsula in Sandusky, Ohio. The
Partnership also owns approximately 80 acres of property on the
mainland adjoining the approach to the Cedar Point Causeway. The
new Breakers Express hotel, the Radisson Harbour Inn and
adjoining TGI Friday's restaurant, two seasonal-employee housing
complexes and a fast-food restaurant operated by the Partnership
are located on this property.
The Partnership controls, through ownership or an easement, a six-
mile public highway and owns approximately 38 acres of vacant
land adjacent to this highway, which is a secondary access route
to Cedar Point and serves about 250 private residences. The
roadway is maintained by the Partnership pursuant to deed
provisions. The Cedar Point Causeway, a four-lane roadway across
Sandusky Bay, is the principal access road to Cedar Point and is
owned by a subsidiary of the Partnership.
Knott's Berry Farm is situated on approximately 160 acres,
virtually all of which have been developed. Knott's Soak City
U.S.A.-San Diego is located on 65 acres, of which 33 acres have
been developed and 32 acres remain available for future
expansion.
Dorney Park is situated on approximately 200 acres, of which 170
acres have been developed and 30 acres remain available for
future expansion.
<PAGE>
At Valleyfair approximately 125 acres have been developed, and
approximately 75 additional acres remain available for future
expansion.
Worlds of Fun is located on approximately 350 acres, of which 235
acres have been developed and 115 acres remain available for
future expansion.
The Partnership, through its subsidiary Cedar Point of Michigan,
Inc., owns approximately 450 acres of land in southern Michigan.
All of the Partnership's property is owned in fee simple without
encumbrance. The Partnership considers its properties to be well
maintained, in good condition and adequate for its present uses
and business requirements.
<PAGE>
ITEM 3. LEGAL PROCEEDINGS.
Not applicable.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not applicable.
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S DEPOSITARY UNITS AND RELATED
UNITHOLDER MATTERS.
Cedar Fair, L.P. Depositary Units representing limited partner
interests are listed for trading on The New York Stock Exchange
under the symbol "FUN" (CUSIP 150185 10 6). As of February 15,
2000, there were approximately 11,000 registered holders of Cedar
Fair, L.P. Depositary Units, representing limited partner
interests, including 3,200 participants in the Partnership's
distribution reinvestment plan. The cash distributions declared
and the high and low prices of the Partnership's units are shown
in the table below:
<TABLE>
<CAPTION>
1999 Distribution High Low
<S> <C> <C> <C>
4th Quarter $.3625 $21 1/4 $18 7/16
3rd Quarter .3625 24 15/16 20 5/8
2nd Quarter .3500 26 23 1/4
1st Quarter .3500 26 23 1/4
<CAPTION>
1998 Distribution High Low
<S> <C> <C> <C>
4th Quarter $.3250 $26 15/16 $22
3rd Quarter .3250 28 13/16 21 3/4
2nd Quarter .3200 30 1/8 25 1/2
1st Quarter .3200 28 5/8 25
</TABLE>
<PAGE>
ITEM 6. SELECTED FINANCIAL DATA.
<TABLE>
<CAPTION> For the years ended December 31,
1999 1998 1997(1) 1996 1995(2)
(In thousands except amounts per unit and per capita)
<S> <C> <C> <C> <C> <C>
OPERATING DATA
Net revenues $438,001 $419,500 $264,137 $250,523 $218,197
Operating 116,755 112,608 76,303 81,121 73,013
income
Net income 85,804 83,441 68,458 74,179 66,136
Per limited
partner unit(6) 1.63 1.58 1.47 1.59 1.45
FINANCIAL POSITION
Total assets $708,961 $631,325 $599,619 $304,104 $274,717
Working capital
(deficit) (62,375) (56,264) (40,472) (27,511) (27,843)
Long-term debt 261,200 200,350 189,750 87,600 80,000
Partners' 349,986 341,991 285,381 169,994 151,476
equity
DISTRIBUTIONS DECLARD
Per limited
partner unit $1.425 $1.29 $1.265 $1.20 $1.1375
OTHER DATA
Depreciation and
amortization $35,082 $32,065 $21,528 $19,072 $16,742
EBITDA(7) 151,837 144,673 97,831 100,193 89,755
Capital
expenditures 80,400 68,055 44,989 30,239 28,520
Combined
attendance 10,600 10,825 6,844 6,920 6,304
Combined guest
per capita
spending(8) $34.58 $33.20 $32.66 $31.75 $30.29
<PAGE>
<CAPTION> 1994(3) 1993(4) 1992(5) 1991 1990
<S> <C> <C> <C> <C> <C>
OPERATING DATA
Net revenues $198,358 $178,943 $152,961 $127,950 $121,962
Operating 68,016 57,480 49,111 42,394 40,324
income
Net income 62,825 61,879 42,921 35,975 33,173
Per limited
partner unit (6) 1.40 1.38 0.98 0.84 0.78
FINANCIAL POSITION
Total assets $223,982 $218,359 $209,472 $142,532 $141,668
Working capital
(deficit) (25,404) (22,365) (19,028) (14,616) (13,446)
Long-term debt 71,400 86,800 89,700 65,900 69,900
Partners' 115,054 99,967 81,333 55,132 51,755
equity
DISTRIBUTIONS DECLARED
Per limited
partner unit $1.0625 $0.9625 $0.8625 $0.7625 $0.675
OTHER DATA
Depreciation and
amortization $14,960 $14,473 $12,421 $10,314 $9,706
EBITDA(7) 82,976 71,953 61,532 52,708 50,030
Capital
expenditures 19,237 23,813 15,934 10,333 15,168
Combined
attendance 5,918 5,511 4,857 4,088 4,130
Combined guest
per capita
spending(8) $30.04 $28.86 $27.98 $27.84 $26.64
</TABLE>
<PAGE>
NOTE 1 - Knott's Berry Farm is included in 1997 data only for the
three days subsequent to its acquisition on December 29, 1997.
NOTE 2 - Worlds of Fun/Oceans of Fun is included in 1995 data for
the period subsequent to its acquisition on July 28, 1995.
NOTE 3 - The 1994 operating results include nonrecurring gains of
$2.1 million relating to insurance claim settlements, partially
offset by a $0.7 million charge to interest expense for
refinancing of long-term debt.
NOTE 4 - The 1993 operating results include a nonrecurring credit
for deferred taxes of $11.0 million, or $0.25 per unit.
NOTE 5 - Dorney Park & Wildwater Kingdom is included in 1992 data
for the period subsequent to its acquisition on July 21, 1992.
NOTE 6 - Net income per limited partner unit is computed based on
the weighted average number of units outstanding and equivalents
outstanding - assuming dilution.
NOTE 7 - EBITDA represents earnings before interest taxes,
depreciation and amortization.
NOTE 8 - Guest per capita spending includes all amusement park,
causeway tolls and parking revenues for the amusement park
operating season. Revenues from water park, marina, hotel,
campground and other out-of-park operations are excluded from
these statistics.
<PAGE>
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS.
Management's Analysis of Results of Operations
Net revenues for the year ended December 31, 1999 were $438.0
million, a 4% increase over the year ended December 31, 1998.
This followed a 59% increase in 1998, when revenues rose to
$419.5 million from $264.1 million in 1997, impacted by the
inclusion of Knott's Berry Farm, which was acquired on December
29, 1997. Net revenues for 1999 reflect a 4% increase in
combined in-park guest per capita spending and an increase of 18%
increase in out-of-park revenues, offset slightly by a 2%
decrease in combined attendance (to 10.6 million from 10.8
million in 1998). In 1999, Knott's Berry Farm and Dorney Park
both had record years, which nearly offset attendance declines at
Cedar Point, Valleyfair and Worlds of Fun caused by the lack of
major new rides and some less than ideal weather conditions.
In 1998, Knott's Berry Farm's full-year contribution accounted
for most of the increase in combined attendance and revenues.
Meanwhile, attendance at the Partnership's original four parks
was up 7% over 1997, due to the successful debuts of Power Tower
at Cedar Point and Mamba at Worlds of Fun, as well as improved
weather at Cedar Point throughout the season. In addition,
Dorney Park achieved its second straight record year. In 1997,
Dorney Park and Worlds of Fun both had excellent years, which
nearly offset attendance declines at Cedar Point and Valleyfair
caused by unusually cool and wet weather during important parts
of the season, and combined attendance was down 1% to 6.8
million. Combined guest per capita spending increased 2% in 1998
and 3% in 1997.
<PAGE>
Costs and expenses before depreciation and amortization in 1999
increased to $286.2 million from $274.8 million in 1998 and
$166.3 million in 1997, in part due to the inclusion of the Buena
Park Hotel's operations in 1999 and Knott's Berry Farm's
operations beginning in 1998. Included in costs and expenses are
approximately $6.4 million of incentive fees earned by the
General Partner in 1999. This compares to $5.4 million and $4.7
million of incentive fees earned in 1998 and 1997, respectively.
Operating income in 1999 increased 4% to $116.8 million,
following a 48% increase in 1998 and a 6% decrease in 1997. The
1999 increase in operating income was largely the result of
increased revenues and operating margins at Knott's Berry Farm,
offset by higher depreciation expense from significant capital
expenditures in recent years. In 1998, operating income
increased as the result of increases in attendance and guest per
capita spending at each of the Partnership's original four parks,
together with Knott's Berry Farm's first full-year profit
contribution. In 1997, operating income decreased as the result
of attendance declines at Cedar Point and Valleyfair.
Net income for 1999 increased 3% to $85.8 million compared to
$83.4 million in 1998 and $68.5 million in 1997. In 1999,
interest expense rose due to higher short-term interest rates and
borrowings for the acquisitions of the Buena Park Hotel in
February and White Water Canyon in December. The provision for
partnership taxes, new in 1998, increased in 1999 based on the
increase in taxable revenues.
For 2000, the Partnership plans to invest a record $110 million
in capital improvements, including Millennium Force, the world's
tallest and fastest roller coaster, and the Breakers Express
hotel at Cedar Point; a major water ride and a multi-million-
dollar water park at Knott's Berry Farm; and Valleyfair's new 275-
foot-tall thrill ride, Power Tower. An additional $11 million
has been invested in the renovation of the Buena Park Hotel at
Knott's. We are optimistic that these major investments, as well
as other improvements at each of the parks, will generate a high
level of public interest and acceptance. However, stable
population trends in our market areas and uncontrollable factors,
such as weather, the economy, and competition for leisure time
and spending, preclude us from anticipating significant long-term
increases in attendance at our parks. Historically, the
Partnership has been able to improve its profitability by
continuing to make substantial investments in its parks and
resort facilities. This has enabled us to maintain consistently
high attendance levels as well as steady increases in guest per
capita spending and revenues from guest accommodations, while
carefully controlling operating and administrative expenses.
<PAGE>
Partnership Financial Condition
The Partnership ended 1999 in sound financial condition in terms
of both liquidity and cash flow. The negative working capital
ratio of 3.6 at December 31, 1999 is the result of the
Partnership's highly seasonal business and careful management of
cash flow. Receivables and inventories are at normally low
seasonal levels and credit facilities are in place to fund
current liabilities, capital expenditures and pre-opening
expenses as required.
In 1999, cash generated from operations totaled $124.0 million
and new bank borrowings totaled $60.9 million. The Partnership
used $80.4 million for capital expenditures, $29.0 for
acquisitions, $72.5 million for distributions to the general and
limited partners, and $3.4 million to repurchase limited
partnership units on the open market. Distributions in 2000, at
the current annual rate of $1.45 per unit, would total
approximately $75 million, 4% higher than the distributions paid
in 1999.
The Partnership has available through April 2002 a $200 million
revolving credit facility, of which $161.2 million was borrowed
and in use as of December 31, 1999. An additional $90 million
revolving credit facility is available through November 2000 to
fund peak seasonal requirements. Credit facilities and cash flow
are expected to be adequate to meet seasonal working capital
needs, planned capital expenditures and regular quarterly cash
distributions.
Additional Year 2000 Disclosure:
The Partnership implemented all changes believed to be needed for
its computer-dependent rides and equipment and its internal
information systems, and did not experience any significant
malfunctions or errors in its operating or business systems when
the year changed from 1999 to 2000. Based on operations since
January 1, 2000, the Partnership does not expect any significant
impact to its ongoing business as a result of the Year 2000
issue. However, as daily operations at the Partnership's
seasonal parks will not begin until April and May of 2000, it is
possible that the full impact of the date change has not been
fully recognized. The Partnership believes that any future
problems, not yet recognized, are likely to be minor and
correctable.
<PAGE>
In addition, the Partnership's parks could be negatively impacted
if its major utility or financial service providers are adversely
affected by the Year 2000 issue. The Partnership currently is
not aware of any significant Year 2000 problems that have arisen
for its principal suppliers of essential utilities or financial
services.
The Partnership expended less than $1 million in Year 2000
readiness efforts from 1997 to 1999. These efforts included
replacing some outdated, noncompliant hardware and reprogramming
or replacing some noncompliant software.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
To The Partners of Cedar Fair, L.P.:We have audited the
accompanying consolidated balance sheets of Cedar Fair, L.P. (a
Delaware limited partnership) and subsidiaries as of December 31,
1999 and 1998, and the related consolidated statements of
operations, partners' equity and cash flows for each of the three
years in the period ended December 31, 1998. These financial
statements are the responsibility of the Partnership's
management. Our responsibility is to express an opinion on these
financial statements based on our audits.
We conducted our audits in accordance with auditing standards
generally accepted in the United States. Those standards require
that we plan and perform the audit to obtain reasonable assurance
about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as
well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of Cedar Fair, L.P. and subsidiaries as of December 31, 1999 and
1998, and the results of their operations and their cash flows
for each of the three years in the period ended December 31, 1999
in conformity with accounting principles generally accepted in
the United States.
ARTHUR ANDERSEN LLP
Cleveland, Ohio,
January 24, 2000.
<PAGE>
<TABLE>
CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands except per unit data)
<CAPTION>
For the years ended December 31, 1999 1998 1997
<S> <C> <C> <C>
Net revenues
Admissions $217,499 $213,869 $135,625
Food, merchandise and games 184,190 178,529 105,944
Accommodations and other 36,312 27,102 22,568
438,001 419,500 264,137
Cost and expenses:
Cost of products sold 49,404 48,061 26,006
Operating expenses 185,937 178,827 108,800
Selling, general and administrative 50,853 47,939 31,500
Depreciation and amortization 35,082 32,065 21,528
321,246 306,892 187,834
Operating income 116,755 112,608 76,303
Interest expense, net 15,371 14,660 7,845
Income before taxes 101,384 97,948 68,458
Provision for taxes 15,580 14,507 --
Net income 85,804 83,441 68,458
Net income allocated to general
partners 429 417 330
Net income allocated to limited
partners $85,375 $83,024 $68,128
Earnings Per Limited Partner Unit:
Weighted average limited
partner units and equivalents
outstanding - Basic 51,928 51,161 45,965
Net income per limited partner unit -
Basic $1.64 $1.62 $1.48
Weighted average limited
partner units and equivalents
outstanding - Diluted 52,390 52,414 46,265
Net income per limited partner unit -
Diluted $1.63 $1.58 $1.47
The accompanying Notes to Consolidated Financial Statements are
an integral part of these statements.
<PAGE>
CONSOLIDATED BALANCE SHEET
(In thousands)
<CAPTION>
December 31, 1999 1998
<S> <C> <C>
Assets
Current Assets:
Cash $ 638 $ 1,137
Receivables 7,457 6,253
Inventories 11,951 10,245
Prepaids 4,138 3,332
Total current assets 24,184 20,967
Land, Buildings and Equipment:
Land 134,884 127,050
Land improvements 95,240 88,924
Buildings 207,973 178,795
Rides and equipment 391,312 368,138
Construction in progress 44,484 12,691
873,893 775,598
Less accumulated depreciation (199,253) (175,554)
674,640 600,044
Intangibles, net of amortization 10,137 10,314
$708,961 $631,325
Liabilities and Partners' Equity
Current Liabilities:
Accounts payable $ 21,563 $ 17,031
Distribution payable to partners 18,860 16,979
Accrued interest 2,789 3,154
Accrued taxes 20,176 18,956
Accrued salaries, wages and benefits 10,831 9,170
Self-insurance reserves 9,371 8,174
Other accrued liabilities 2,969 3,767
Total current liabilities 86,559 77,231
Other Liabilities 11,216 11,753
Long-Term Debt:
Revolving credit loans 161,200 100,350
Term debt 100,000 100,000
261,200 200,350
Partners' Equity:
Special L.P. interests 5,290 5,290
General partners 549 492
Limited partners, 51,798 and 51,980 units
outstanding in 1999 and 1998, respectively 344,147 336,209
349,986 341,991
$708,961 $631,325
The accompanying Notes to Consolidated Financial Statements are
an integral part of these balance sheets.
<PAGE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
<CAPTION>
For the years ended December 31, 1999 1998 1997
<S> <C> <C> <C>
Cash Flows From (For) Operating Activities
Net income $85,804 $83,441 $68,458
Adjustments to reconcile net income to net
cash from operating activities
Depreciation and amortization 35,082 32,065 21,528
Change in assets and liabilities, net of
effects from acquisitions:
Decrease (increase) in inventories (1,661) 80 (214)
Decrease (increase) in current and other
assets (1,789) 105 576
Increase in accounts payable 4,384 1,371 2,455
Increase in accrued taxes 1,220 14,354 117
Increase (decrease) in self-insurances
reserves 1,197 (1,332) 581
Increase (decrease) in other current
liabilities 284 (2,589) (12)
Increase (decrease) in other liabilities (537) 1,441 3,043
Net cash from operating activities 123,984 128,936 96,532
Cash Flows From (For) Investing Activities
Capital expenditures (80,400) (68,055) (44,989)
Acquisition of Buena Park Hotel and White
Water Canyon:
Land, buildings rides and equipment acquired (29,026) -- --
Negative working capital assumed 21 -- --
Acquisition of Knott's Berry Farm:
Land, buildings rides and equipment acquired -- -- (261,685)
Negative working capital assumed, net of cash
acquired -- -- 10,281
Net cash (for) investing activities (109,405) (68,055)(296,393)
Cash Flows From (For) Financing Activities
Acquisition of Buena Park Hotel & White Water
Canyon:
Borrowings on revolving credit loans 29,005 -- --
Acquisition of Knott's Berry Farm:
Borrowings on revolving credit loans -- -- 94,500
Issuance of limited partnership units -- -- 157,402
Redemption of limited partnership units -- (7,464) --
Other net borrowing (payments) on revolving
credit loans 31,845 (39,400) 12,150
Borrowings (repayments) of term debt -- 50,000 (4,500)
Distributions paid to partners (72,485) (65,400) (58,254)
Repurchase of limited partnership units (3,443) -- --
Withdrawal of Special General Partner -- -- (196)
Net cash from (for) financing activities (15,078) (62,264) 201,102
Cash:
Net increase (decrease) for the period (499) (1,383) 1,241
Balance, beginning of period 1,137 2,520 1,279
Balance, end of period $638 $1,137 $2,520
Supplemental Information:
Cash payments for interest expense $15,736 $13,091 $7,874
Interest capitalized 400 -- --
Cash payments for income taxes 14,360 -- --
Reduction in final purchase price of Knott's
Berry Farm -- 3,506 --
The accompanying Notes to Consolidated Financial Statements are
an integral part of these statements.
<PAGE>
CONSOLIDATED STATEMENTS OF PARTNERS' EQUITY
(In thousands except unit and per unit amounts)
<CAPTION>
Special General Limited Total
L.P. Partner's Partners' Partners'
Interests Equity Equity Equity
<S> <C> <C> <C> <C>
Balance at December 31, 1996 $ 5,290 $ 717 $163,987 $169,994
Withdrawl of Special General
Partner -- (196) -- (196)
Allocation of net income -- 330 68,128 68,458
Partnership distributions
declared ($1.265 per limited
partner unit) -- (438) (58,089) (58,527)
Issuance of 6,482,433 limited
partner units for the acquisition
of Knott's Berry Farm -- -- 157,402 157,402
Reclassification of 2,000,000
redeemable limited partnership
units -- -- (51,750) (51,750)
Balance at December 31, 1997 5,290 413 279,678 285,381
Expiration of redemption rights
on 1,721,717 limited partnership
units -- -- 44,286 44,286
Reduction of final purchase price
of Knott's Berry Farm by 144,383
units -- -- (3,506) (3,506)
Allocation of net income -- 417 83,024 83,441
Partnership distributions
declared ($1.29 per limited
partner unit) -- (338) (67,273) (67,611)
Balance at December 31, 1998 5,290 492 336,209 341,991
Repurchase of 182,335 limited
partnership units -- -- (3,443) (3,443)
Allocation of net income -- 429 85,375 85,804
Partnership distributions
declared ($1.425 per limited
partner unit) -- (372) (73,994) (74,366)
Balance at December 31, 1999 $5,290 $549 $344,147 $349,986
The accompanying Notes to Consolidated Financial Statements are
an integral part of these statements.
</TABLE>
<PAGE>
Notes To Consolidated Financial Statements
(1) Partnership Organization:
Cedar Fair, L.P. (the "Partnership") is a Delaware limited
partnership which commenced operations in 1983 when it acquired
Cedar Point, Inc., and became a publicly traded partnership in
1987. At December 31, 1999 there were 51,980,183 limited
partnership units registered on The New York Stock Exchange.
On November 22, 1999, the Partnership announced a program to
repurchase up to $25,000,000 of its limited partnership units.
As of December 31, 1999, 182,335 units had been repurchased by
the Partnership at an approximate cost of $3,443,000.
The Partnership's General Partner is Cedar Fair Management
Company an Ohio corporation owned by the Partnership's executive
management (the "General Partner"). Effective July 1, 1997, CF
Partners, the Special General Partner, voluntarily withdrew from
the Partnership and, in accordance with the Partnership
Agreement, received $400,000 as final payment of the balance of
its 1997 fees. After this transaction, the Partnership's limited
partner units represent, in the aggregate, a 99.5% interest in
income, losses and cash distributions of the Partnership,
compared with a 99.0% interest in prior periods. The General
Partner owns a 0.5% interest in the Partnership's income, losses,
and cash distributions except in defined circumstances, and has
full control over all activities of the Partnership.
For the services it provides, the General Partner earns a fee
equal to .25% of the Partnership's net revenues, as defined, and
also earns incentive compensation when quarterly distributions
exceed certain levels as defined in the Partnership Agreement.
The General Partner earned $7,467,000, $6,405,000, and $5,335,000
of total fees in 1999, 1998 and 1997, respectively.
The General Partner may, with the approval of a specified
percentage of the limited partners, make additional capital
contributions to the Partnership, but is only obligated to do so
if the liabilities of the Partnership cannot otherwise be paid or
there exists a negative balance in its capital account at the
time of its withdrawal from the Partnership. The General Partner,
in accordance with the terms of the Partnership Agreement, is
required to make regular cash distributions on a quarterly basis
of all the Partnership's available cash, as defined.
(2) Summary Of Significant Accounting Policies:
The following policies are used by the Partnership in its
preparation of the accompanying consolidated financial
statements.
Principles Of Consolidation
The consolidated financial statements include the accounts of the
Partnership and its wholly-owned subsidiaries. All significant
intercompany transactions and balances are eliminated in
consolidation.
<PAGE>
Estimates
The preparation of financial statements in conformity with
generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts
of assets and liabilities and disclosure of contingent assets and
liabilities at the date of the financial statements, and the
reported amounts of revenues and expenses during each period.
Actual results could differ from those estimates.
Inventories
The Partnership's inventories primarily represent purchased
products, such as merchandise and food, for sale to its
customers. All inventories are valued at the lower of first-in,
first-out (FIFO) cost or market.
Depreciation and Amortization
The Partnership's policy is to provide depreciation on a straight-
line basis over the estimated useful lives of its assets. The
composite method is used for the group of assets acquired as a
whole in 1983, as well as for the groups of like assets of each
subsequent business acquisition. The unit method is used for all
individual assets purchased.
Under the composite depreciation method, assets with similar
estimated lives are grouped together and the several pools of
assets are depreciated on an aggregate basis. Gains and losses on
the retirement of assets, except those related to abnormal
retirements, are credited, or charged to accumulated
depreciation. Accumulated gains and losses on asset retirements
under the composite depreciation method have not been
significant.
Under the unit method of depreciation, individual assets are
depreciated over their estimated useful lives, with gains and
losses on all asset retirements recognized currently in income.
The weighted average useful lives combining both methods are
approximately:
Land improvements 24 Years
Buildings 30 Years
Rides 18 Years
Equipment 10 Years
Goodwill is amortized on a straight-line basis over a 40-year
period.
Segment Reporting
The Partnership is in the single business of operating amusement
parks with accompanying resort facilities.
<PAGE>
Income Taxes
Because of its legal structure, the Partnership is not subject to
regular corporate income taxes; rather, the Partnership's tax
attributes are included in the individual tax returns of its
partners. Neither the Partnership's financial reporting income,
nor the cash distributions to unitholders, can be used as a
substitute for the detailed tax calculations which the
Partnership must perform annually for its partners. Net income
from the Partnership is not treated as "passive income" for
federal income tax purpose. As a result, partners subject to the
passive activity loss rules are not permitted to offset income
from the Partnership with passive losses from other sources.
The tax returns of the Partnership are subject to examination by
state and federal tax authorities. If such examination result in
changes to taxable income, the tax liability of the partners
could be changed accordingly.
Federal and state tax legislation in 1997 provided a permanent
income tax exemption to existing "publicly traded partnerships,"
such as Cedar Fair, L.P., with new taxes to be levied on
partnership gross income (net revenues less cost of products
sold) beginning in 1998. The Partnership recorded provisions of
$15.6 million and $14.5 million for these new federal and state
taxes in 1999 and 1998, respectively. If the new taxes had been
in effect in prior years, the Partnership would have recorded a
tax provision of approximately $8.3 million in 1997.
Earnings Per Unit
The Partnership has presented, and where appropriate, restated
earnings per unit amounts for all periods to conform with
Statement of Financial Accounting Standards No. 128 (Earnings per
Share). For purposes of calculating the basic and diluted
earnings per limited partner unit, no adjustments have been made
to the reported amounts of net income. The unit amounts used are
as follows:
1999 1998 1997
(In thousands except per unit data)
Basic weighted average
units outstanding 51,928 51,161 45,965
Effect of dilutive units:
Deferred units (see Note 5) 422 355 291
Contingent units - Knott's
Acquisition (see Note 7) 40 898 9
Diluted weighted average
units outstanding 52,390 52,414 46,265
Net income per unit-basic $1.64 $1.62 $1.48
Net income per unit-diluted $1.63 $1.58 $1.47
<PAGE>
(3) Long-Term Debt:
At December 31, 1999 and 1998, long-term debt consisted of the
following;
1999 1998
(In thousands)
Revolving credit loans $161,200 $100,350
Term debt 100,000 100,000
$261,200 $200,350
Revolving Credit Loans
The Partnership is party to a credit agreement with five banks
under which it has available a $200 million revolving credit
facility through April 2002. In November 1999, the Partnership
entered into a new, 364-day credit agreement with the bank group
for an additional $90 million revolving credit facility through
November 2000. Borrowings under these credit facility were $161.2
million as of December 31, 1999, at an average interest rate of
6.5%. The maximum outstanding balance during 1999 was $206.9
million.
Borrowings under these agreements bear interest at the banks'
prime lending rate, with more favorable LIBOR and other rate
option. The agreements require the Partnership to pay a
commitment fee of up to 0.225% per annum on the daily unused
portion of the credit. The Partnership, at its option, may make
prepayments without penalty and reduce the loan commitments.
Term Debt
In 1994, the Partnership refinanced $50 million in senior notes
at an interest rate of 8.43%. The Partnership is required to make
annual repayments of $10 million in August 2002 through August
2006 and may make prepayments with defined premiums.
In 1998, the Partnership entered into another note agreement for
the issuance of an additional $50 million in 6.68% senior notes
to refinance a portion of the Knott's Berry Farm acquisition. The
Partnership is required to make annual repayments of $10 million
in August 2007 through August 2011 and may make prepayments with
defined premiums.
<PAGE>
The fair value of the aggregate future repayments on term debt at
December 31, 1999, as required by Statement of Financial
Accounting Standards No. 107 would be approximately $100.9
million, applying a discount rate of 7.5%.
Covenants
Under the terms of the debt agreements, the Partnership, among
other restrictions, is required to maintain a specified level of
net tangible assets, as defined, and comply with certain cash
flow interest coverage, and debt to net worth levels. The
Partnership was in compliance with these covenants as of December
31, 1999.
(4) Special L.P. Interests:
In accordance with the Partnership Agreement, certain partners
were allocated $5.3 million of 1987 and 1988 taxable income
(without any related cash distributions) for which they received
Special L.P. Interests. The Special L.P. Interests do not
participate in cash distributions and have no voting rights.
However, the holders of Special L.P. Interests will receive in
the aggregate $5.3 million upon liquidation of the Partnership.
(5) Retirement Plans:
The Partnership has trusteed, noncontributory retirement plans
for the majority of its employees. Contributions are
discretionary and were $3,340,000 in 1999, $3,229,000 in 1998,
and $1,360,000 in 1997.
The Partnership also has two benefit plans under which nonunion
employees can contribute specified percentages of their salary
matched up to a limit by the Partnership. Contributions by the
Partnership to these plans approximated $1,162,000 in 1999,
$1,215,000 in 1998, and $450,000 in 1997.
In addition, approximately 125 employees are covered by union-
sponsored, multi-employer pension plans for which approximately
$462,000, $400,000, and $359,000 were contributed for the years
ended December 31, 1999, 1998, and 1997, respectively. The
Partnership believes that, as of December 31, 1999, it would have
no withdrawal liability as defined by the Multiemployer Pension
Plan Amendments Act of 1980.
In 1992, the Partnership amended its policy for payment of fees
earned by the General Partner to permit a portion of such fees to
be deferred for payment after retirement or over certain vesting
periods as established by the Board of Directors. Payment will
be made in a combination of limited partnership units and cash.
The amounts deferred were $3,249,000 in 1999, $2,866,000 in 1998,
and $2,409,000 in 1997, including the value of 170,976, 115,216,
and 90,470 limited partnership units issuable in future years,
which are included in the calculation of diluted weighted average
units outstanding. Amounts not payable within 12 months of the
balance sheet date are included in Other Liabilities.
<PAGE>
(6) Contingencies:
The Partnership is a party to a number of lawsuits arising in the
normal course of business. In the opinion of management, these
matters will not have a material effect in the aggregate on the
Partnership's financial statements.
(7) Acquisitions:
On December 7, 1999, the Partnership acquired White Water Canyon,
a water park located near San Diego in Chula Vista, California,
for a cash purchase price of $11.6 million. The purchase price
has been allocated to assets and liabilities acquired based on
their relative fair values at the date of acquisition. White
Water Canyon's assets, liabilities and results of operations
since December 7, 1999 are included in the accompanying
consolidated financial statements.
On February 19, 1999, the Partnership acquired the 320-room Buena
Park Hotel, which is adjacent to Knott's Berry Farm in Buena
Park, California. The purchase price of $17.5 million has been
allocated to the assets and liabilities acquired based on their
relative fair values at the date of acquisition. The hotel's
assets, liabilities and results of operations since February 19,
1999 are included in the accompanying consolidated financial
statements.
On December 29, 1997 the Partnership acquired Knott's Berry Farm,
a privately held partnership which owned and operated Knott's
Berry Farm theme park in Buena Park, California and managed
Knott's Camp Snoopy at the Mall of America in Bloomington,
Minnesota. Knott's Berry Farm is a traditional, family-oriented
theme park and Knott's Camp Snoopy is the nation's largest indoor
theme park.
The initial transaction price consisted of 6,482,433 unregistered
limited partnership units (valued at an average price of
$24.2813, or $157.4 million in the aggregate) and the payment of
$94.5 million in cash borrowed under the revolving credit
agreement. In December 1998, the transaction price was reduced
by 144,383 units, or $3.5 million in the aggregate, to reflect
final adjustments to the purchase price.
<PAGE>
Under the terms of the acquisition, the Partnership agreed to
repurchase during 1998 up to an aggregate of 500,000 of these
units per quarter at market prices upon demand. During 1998, the
Partnership repurchased 278,283 units at an aggregate price of
$7.5 million, and the redemption rights on 1,721,717 units
expired without exercise. As a result, $44.3 million was
reclassified into partners' equity during 1998 from the 1997
balance of redeemable limited partnership units.
Knott's Berry Farm's assets, liabilities and results of
operations since December 29, 1997 are included in the
accompanying consolidated financial statements. The acquisition
has been accounted for as a purchase, and accordingly the
purchase price has been allocated to assets and liabilities
acquired based upon their flair values at the date of
acquisition.
The table below summarizes the unaudited consolidated pro forma
results of operations assuming the acquisition of Knott's Berry
Farm had occurred at the beginning of 1997, with adjustments
primarily attributable to interest expense relating to the
refinancing of long-term debt and depreciation expense relating
to the fair value of assets acquired.
Net revenues (millions) $392.1
Net income (millions) $73.1
Net income per limited
partner unit-diluted $1.38
These pro forma results have been prepared for comparative
purposes only and do not purport to be indicative of what would
have occurred had the acquisition been made at the beginning of
the periods 1997, or of results which may occur in the future.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON
ACCOUNTING AND FINANCIAL DISCLOSURE.
Not applicable.
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF REGISTRANT.
Cedar Fair Management Company, an Ohio corporation owned by the
Partnership's executive management (consisting of 23 individuals
at February 1, 2000), is the General Partner of the Partnership
and has full responsibility for the management of the
Partnership. For additional information, including the fees paid
to the General Partner for services rendered during 1999,
attention is directed to Note 1 to the consolidated financial
statements on page 10 in the Registrant's 1999 Annual Report to
Unitholders, which note is incorporated herein by this reference.
Directors:
Name Age Position with General Partner
Richard L. Kin 59 President and Chief Executive
Officer, Director since 1986
Lee A. Derrough * 55 Director since 1995
Richard S. Ferreira * 59 Director since 1997
Terry C. Hackett # 51 Director since 1997
Bruce A. Jackson 48 Corporate Vice President-Finance and
Chief Financial Officer, Director since 2000
Mary Ann Jorgenson # 59 Director since 1988
Michael D. Kwiatkowski 52 Director since 2000
Donald H. Messinger # 56 Director since 1993
James L. Miears 64 Executive Vice President & General
Manager-Cedar Point, Director since 1993
Thomas A. Tracy * 68 Director since 1993
* Member of Audit Committee.
# Member of Compensation Committee.
The Board of Directors of the General Partner has a Compensation
Committee and an Audit Committee. The Compensation Committee
reviews the Partnership's compensation and employee benefit
policies and programs and recommends related actions, as well as
executive compensation decisions, to the Board of Directors. The
Audit Committee meets periodically with the Partnership's
independent auditors, reviews the activities of the Partnership's
internal audit staff, considers the recommendations of the
independent and internal auditors, and reviews the annual
financial statements upon completion of the audit.
Each director of the General Partner is elected for a one-year
term.
<PAGE>
Executive Officers:
Name Age Position with General Partner
Richard L. Kinzel 59 President and Chief Executive Officer since 1986
John R. Albino 53 Vice President & General Manager-Dorney Park
since 1995
Philip H. Bender 43 Vice President-Retail Operations-Worlds of Fun
since 2000
Carolyn Carey 52 Vice President-Marketing and Sales-Knott's
Berry Farm since 1994
Richard J. 60 Corporate Vice President-General Services
Collingwood since 1992
Jacob T. Falfas 48 Vice President & General Manager-Knott's
Berry Farm since 1997
Mark W. Freyberg 46 Vice President-Park Operations-Valleyfair
since 1996
Joseph E. Greene 57 Vice President-Maintenance-Dorney Park
since 1996
H. John Hildebrandt 50 Vice President-Marketing-Cedar Point since 1993
Bruce A. Jackson 48 Corporate Vice President-Finance and Chief
Financial Officer since 1992
Lamond H. Jasper, Jr.45 Vice President-Maintenance-Cedar Point
since 1999
<PAGE>
Executive Officers (continued):
Name Age Position with General Partner
Lee C. Jewett 65 Corporate Vice President-Planning & Design
since 1990
Daniel R. Keller 50 Vice President & General Manager-Worlds of
Fun since 1995
Bonny F. 46 Vice President-Food Services/Accommodations-
Kirin-Perez Knott's Berry Farm since 1999
Connie L. Lewis 53 Vice President-Merchandise-Cedar Point since 1999
Larry L. McKenzie 44 Vice President-Revenue Operations-Dorney
Park since 1997
James L. Miears 64 Executive Vice President & General Manager-
Cedar Point since 1993
Charles M. Paul 46 Corporate Controller since 1996
Richard R. Rau 51 Vice President-Marketing-Worlds of Fun since 2000
Jesse J. Rivera 55 Vice President-General Services-Knott's
Berry Farm since 1999
Alan L. Schwartz 50 Vice President-Finance-Valleyfair since 1978
Linnea Stromberg- 54 Vice President-Marketing-Valleyfair since 1995
Wise
Walter R. Wittmer 59 Vice President & General Manager-Valleyfair
since 1988
BUSINESS EXPERIENCE.
Directors:
Richard L. Kinzel has served as president and chief executive
officer since 1986. Mr. Kinzel has been employed by the
Partnership or its predecessor since 1972, and from 1978 to 1986
he served as vice president and general manager of Valleyfair.
Lee A. Derrough is President and CEO of Hunt Midwest Enterprises,
Inc., and has been associated with the Hunt companies since 1967.
Mr. Derrough was elected as a director in 1995 pursuant to the
Contribution Agreement dated July 28, 1995, which entitles Hunt
Midwest Enterprises, Inc. to appoint a representative on the
Board of Directors so long as it owns more than 1,380,000 units
of Cedar Fair, L.P. Mr. Derrough is also a past president of the
International Association of Amusement Parks and Attractions.
Richard S. Ferreira is a retired executive vice president of Golf
Hosts, Inc. (developer and owner of nationally recognized resorts
in Colorado and Florida) and a past member of its Board of
Directors. Mr. Ferreira was associated with Golf Hosts for more
than 26 years.
<PAGE>
Terry C. Hackett is a business attorney and President of Hackett
Management Corporation (real estate management) and previously
served on the Board of Directors of Knott's Berry Farm from 1981
to 1997. Mr. Hackett was elected a director in 1997 as a
representative of the Knott family following the acquisition of
Knott's Berry Farm in December 1997.
Bruce A. Jackson has served as Corporate Vice President-Finance
and Chief Financial Officer since 1992. Mr. Jackson is a
certified public accountant.
Mary Ann Jorgenson is a partner in the law firm of Squire,
Sanders & Dempsey L.L.P., the Partnership's General Counsel, and
has been associated with the firm since 1975. She is also a
director of S 2 Golf Inc. (manufacturer and distributor of golf
clubs and bags) and is a director of Anthony & Sylvan Pools
Corporation (manufacturer and installer of concrete in-ground
swimming pools).
Michael D. Kwiatkowski has been a consultant in the food service
industry since 1996, prior to which he served as Chairman of PCS,
which owned and operated a chain of 11 restaurants, from 1986 to
1996. He has more than 30 years of experience in amusement parks
and branded restaurant operations.
Donald H. Messinger is a partner in the law firm of Thompson Hine
& Flory LLP and has been associated with the firm since 1968.
<PAGE>
Directors (continued):
James L. Miears has served as Executive Vice President and
General Manager of Cedar Point since 1993. In 1992, he was
Senior Vice President-Merchandise of Cedar Point and prior to
1992 he served as Vice President-Merchandise of Cedar Point.
Thomas A. Tracy is a business consultant and was a partner in the
public accounting firm of Arthur Andersen LLP from 1966 until his
retirement in 1989.
Executive Officers:
Richard L. Kinzel. See "Directors" above.
John R. Albino has served as Vice President & General Manager of
Dorney Park & Wildwater Kingdom since 1995. From 1993 to 1995,
he served as Vice President-Food Operations of Cedar Point.
Philip H. Bender was promoted to Vice President-Retail Operations
of Worlds of Fun in 2000. Prior to that, he had served as
Director-Retail Operations of Worlds of Fun since 1995, and
Director-Food Services of Valleyfair for more than five years
before that.
Carolyn Carey has served as Vice President-Marketing and Sales of
Knott's Berry Farm since 1994.
Richard J. Collingwood has served as Corporate Vice President-
General Services since 1992 and has primary responsibility for
human resources, purchasing and security.
Jacob T. Falfas has served as Vice-President & General Manager of
Knott's Berry Farm since December 1997. From 1993 to 1997, he
served as Vice President-Park Operations of Cedar Point.
Mark W. Freyberg has served as Vice President-Park Operations of
Valleyfair since 1996. Prior to 1996 he served as Director-Park
Operations of Valleyfair for more than five years.
Joseph E. Greene has served as Vice President-Maintenance of
Dorney Park since 1996. From 1993 to 1996, he served as Director-
Construction & Maintenance of Dorney Park.
H. John Hildebrandt has served as Vice President-Marketing of
Cedar Point since 1993.
Bruce A. Jackson. See "Directors" above.
Lamond H. Jasper, Jr. has served as Vice President-Maintenance of
Cedar Point since 1999. Prior to 1999 he served as Director-
Maintenance of Cedar Point since 1995.
<PAGE>
Lee C. Jewett has served as Corporate Vice President-Planning &
Design since 1990.
Daniel R. Keller has served as Vice President & General Manager
of Worlds of Fun / Oceans of Fun since 1995. From 1993 to 1995,
he served as Senior Vice President-Operations of Cedar Point.
Bonny F. Kirin-Perez has served as Vice President-Food Services
and Accommodations of Knott's Berry Farm since 1999. Prior to
that, she served as Director-Food and Beverage of Knott's Berry
Farm from 1996 to 1998, and was Director-Food and Beverage of the
Atlanta Committee for the Olympics from 1994 to 1996.
Connie L. Lewis has served as Vice President-Merchandise of Cedar
Point since 1999. Prior to 1999 she served as Director-
Merchandise of Cedar Point for more than five years.
<PAGE>
Executive Officers (continued):
Larry L. MacKenzie has served as Vice President-Revenue
Operations of Dorney Park since 1997. Prior to 1997, he served
as Director-Revenue Operations of Dorney Park for more than five
years.
James L. Miears. See "Directors" above.
Charles M. Paul has served as Corporate Controller since 1996,
and prior to that was Controller of Cedar Point for more than
five years. Mr. Paul is a certified public accountant.
Richard R. Rau was promoted to Vice President-Marketing of Worlds
of Fun in 2000. Prior to that, he had served as Director-
Marketing of Worlds of Fun since 1996, and Director-General
Services of Worlds of Fun from 1994 to 1996.
Jesse J. Rivera has served as Vice President-General Services of
Knott's Berry Farm since 1999. Prior to that, he served as
Director-General Services of Knott's Berry Farm from 1998 to
1999, and before that as Manager-Reprographics of Knott's Berry
Farm from 1994 to 1998.
Alan L. Schwartz has served as Vice President-Finance of
Valleyfair since 1978. Mr. Schwartz is a certified public
accountant.
Linnea Stromberg-Wise has served as Vice President-Marketing of
Valleyfair since 1995. Prior to 1995, she served as Director-
Marketing of Valleyfair for more than five years.
Walter R. Wittmer has served as Vice President & General Manager
of Valleyfair since 1988.
COMPLIANCE WITH SECTION 16(a) OF THE EXCHANGE ACT.
Section 16(a) of the Securities Exchange Act of 1934 requires the
Registrant's directors, executive officers and persons who own
more than ten percent of its Depositary Units ("Insiders") to
file reports of ownership and changes in ownership, within 10
days following the last day of the month in which any change in
such ownership has occurred, with the Securities and Exchange
Commission and The New York Stock Exchange, and to furnish the
Partnership with copies of all such forms they file. The
Partnership understands from the information provided to it by
these individuals that all filing requirements applicable to the
Insiders were met for 1999, except for Messrs. Messinger and Tracy,
both of whom made one inadvertently late filing due to a delay in
the reporting of a purchase of units under the Partnership's
reinvestment program.
<PAGE>
ITEM 11. EXECUTIVE COMPENSATION.
SUMMARY COMPENSATION TABLE
Annual Long Term
Compensation Compensation
(a) (b) (c) (d) (f) (i)
Restricted All
Unit Other
Salary Bonus Awards Compensation
Name and Principle Year ($) ($) ($) ($)
Position
Richard L. Kinzel 1999 341,539 882,148 698,523 16,281
President and 1998 296,924 786,067 519,500 16,200
Chief Executive 1997 219,538 550,907 448,688 15,950
Officer
Jacob T. Falfas, 1999 209,615 408,321 142,574 13,676
Vice President and 1998 154,346 295,386 215,800 16,200
General Manager- 1997 137,731 301,323 144,616 15,950
Knott's Berry Farm
Bruce A. Jackson, 1999 185,961 349,929 277,062 16,281
Corporate Vice 1998 154,346 295,386 215,800 16,200
President Finance 1997 137,731 301,323 144,616 15,950
and Chief Financial
Officer
James L. Miears, 1999 176,346 330,465 148,827 16,281
Executive Vice 1998 164,923 314,509 137,400 16,200
President and 1997 162,730 296,853 125,706 15,950
General Manager-
Cedar Point
John R. Albino, 1999 170,961 320,838 162,007 16,281
Vice President 1998 164,923 314,509 137,400 16,200
and General 1997 162,730 296,853 125,706 15,950
Manager -Dorney Park
Daniel R. Keller, 1999 170,961 320,838 162,007 16,281
Vice President 1998 164,923 314,509 137,400 16,200
and General 1997 162,730 296,853 125,706 15,950
Manager Worlds of Fun
Walter W. Wittmer 1999 170,961 320,838 162,007 16,281
Vice President and 1998 154,692 295,386 165,800 16,200
General Manager- 1997 146,731 267,713 144,809 15,950
Valleyfair
Notes To Summary Compensation Table:
Column (f) Restricted Unit Awards. The aggregate number of
restricted Cedar Fair, L.P. depositary units,
representing limited partner interests, awarded to
Messrs. Kinzel, Falfas, Jackson, Miears, Albino, Keller
and Wittmer as of December 31, 1999, together with
their market value at yearend, were: 97,774
($1,894,370), 19,698 ($381,651), 36,863 ($714,226),
30,815 ($597,030), 27,821 ($539,024), 27,272
($528,389), and 30,362 ($588,271), respectively. These
units will accrue additional restricted units on the
date of each quarterly distribution paid by the
Registrant, calculated at the NYSE closing price on
that date.
Column (i) All Other Compensation. Comprises amounts accrued
under the following plans:
1. Profit Sharing Retirement Plan - With respect to
1999, $11,481 was credited to the accounts of each of
the named executive officers, with the exception of
Mr. Falfas who was credited with $8,876 in 1999.
2. Employees' Savings and Investment Plan - With
respect to 1999, $4,800 was credited to the accounts
of each of the named executive officer
3. Supplemental Retirement Benefits - No amounts
were awarded in 1999.
Cash bonuses, restricted unit awards, and supplemental retirement
benefits provided to the Partnership's executive management are
reimbursed by the General Partner out of funds provided by its
management and incentive fees and cash distributions from the
Partnership.
<PAGE>
COMPENSATION OF DIRECTORS.
The Board of Directors establishes the fees paid to Directors and
Board Committee members for services in those capacities. The
current schedule of such fees is as follows:
1. For service as a member of the Board, $15,000 per
annum, payable quarterly, plus $1,000 for attendance
at each meeting of the Board;
2. For service as a Board Committee member, $250 for
attendance at each Committee meeting held on the same date
on which the Board of Directors meets and $1,000 for
attendance at any additional Committee meeting held on a
date other than a date on which the Board of Directors
meets; and
3. For service as Chairman of a Committee of the Board,
a fee of $2,500 per annum.
These fees are payable only to non-management Directors.
Management Directors receive no additional compensation for
service as a Director. All Directors receive reimbursement from
the Partnership for expenses incurred in connection with service
in that capacity.
EMPLOYMENT CONTRACTS AND TERMINATION OF EMPLOYMENT AND CHANGE-IN-
CONTROL ARRANGEMENTS.
Severance Compensation.
All regular, full-time, non-union affiliated employees, including
the named executive officers, who have been employed by the
Partnership for at least one year are eligible for severance
compensation under the Cedar Fair, L.P. Severance Pay Plan.
Under the Plan, employees are generally eligible for severance
pay if their employment is terminated due to the elimination of
the job or position, a mutually agreed-upon separation of the
employee due to performance, or a change in ownership which
results in replacement of the employee by the new owner. Upon
termination of employment where severance compensation is payable
under the Plan, the employee is entitled to receive a payment
based on the following schedule:
Length of Service Severance Pay
1 year through 10 years One week of pay for each
full year of service
11 years through 30 years Ten weeks' pay plus two
weeks of pay for each full
year of service in excess of 10
31 years or more Fifty-two weeks of pay
In addition, seven executive officers of the Partnership,
including each of the executive officers named in the Summary
Compensation Table, are entitled to severance payments and
continuation of existing insurance benefits if their employment
is terminated within 24 months after any change in control
occurs, as defined in a plan approved by the Board of Directors
in 1995. Such severance payments and benefits range from 1.6
times the last five years' average cash compensation and 24
months of continued insurance benefits for park General Managers
to three times the last five years' average cash compensation,
less $1, and 36 months of continued insurance benefits, for the
President and Chief Executive Officer.
<PAGE>
Restricted Unit Awards.
Restricted unit awards represent the named executive officer's
right to receive Cedar Fair, L.P. units at specified future dates
if the individual is still employed by the Partnership at that
time. The dollars allocated to each officer are converted to a
number of deferred Partnership units based on the NYSE closing
price on the first Monday in December of the year granted. These
units, together with quarterly distributions thereon, vest in
years three through five after the date of grant, at which time
unrestricted units are issued.
In the event of death, total disability, retirement at age 62 or
over, removal of the General Partner, or a "change-in-control" of
the Partnership (as defined), all accrued units for a participant
will become fully vested and will be issued at the time of such
event. Failure to remain an employee of the Partnership on any
vesting date for any other reason will result in the forfeiture
of all unissued deferred units of a participant.
Supplemental Retirement Benefits.
Supplemental retirement benefits represent the named executive
officer's right to receive cash benefits from the Partnership
upon retirement at age 62 or over, with a minimum of 20 years'
service to the Partnership, its predecessors and/or successors.
Amounts are allocated among the executive officers as approved by
the Compensation Committee of the Board. Each officer's account
accrues interest at the prime rate as established from time to
time by the Partnership's lead bank, beginning on December 1 of
the year of grant. Executive officers leaving the employ of the
Partnership prior to reaching age 62 or with less than 20 years
of service will forfeit their entire balance. In the event of
death, total disability, retirement at age 62 or over with at
least 20 years' service, or removal of the General Partner
(unless resulting from reorganization of the Partnership into
corporate form), all amounts accrued will become immediately and
fully vested and payable to the executive officers. In the event
of a "change-in-control" (as defined), all amounts accrued will
become fully vested and will be funded in a trust, for the
benefit of the executive officers when they reach age 62, die, or
become totally disabled, whichever occurs first. At each
executive officer's option, the accrued balance may be
distributed in a lump sum or in a number of future payments over
a period not to exceed 10 years.
<PAGE>
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
A. Security Ownership of Certain Beneficial Owners.
According to information obtained by the Partnership from
Schedule 13G filings with the Securities and Exchange Commission
concerning the beneficial ownership of its units (determined in
accordance with the rules of the Securities and Exchange
Commission), there were no parties known to the Partnership to
own more than 5 percent of its Depositary Units representing
limited partner interests as of February 1, 2000.
<PAGE>
B. Security Ownership of Management.
The following table sets forth the number of Depositary Units
representing limited partner interests beneficially owned by each
Director and named executive officer and by all officers and
Directors as a group as of February 1, 2000.
<TABLE>
<CAPTION Amount and Nature of Beneficial Ownership
<S> <C> <C> <C> <C> <C> <C>
Percent
Name of Beneficial Beneficial Investment Power Voting Power of of
Owner Ownership Sole Shared Sole Shared Units
Richard L. Kinzel(1) 779,227 364,35 414,877 364,350 414,877 1.5
Lee A. Derrough 2,000 2,000 -0- 2,000 -0- *
Richard S. Ferreira 2,715 400 2,315 400 2,315 *
Terry C. Hackett(2) 478,367 -0- 478,367 -0- 478,367 *
Bruce A. Jackson 96,197 94,197 2,000 94,197 2,000 *
Mary Ann Jorgenson(3) 764,796 420 764,376 420 764,376 1.5
Michael D.Kwiatkowski -0- -0- -0- -0- -0- *
Donald H. Messinger 1,837 1,837 -0- 1,837 -0- *
James L. Miears (1) 456,917 60,938 395,979 60,938 395,979 *
Thomas A. Tracy 7,445 5,651 1,794 5,651 1,794 *
Jacob T. Falfas 37,854 33,709 4,145 33,709 4,145 *
John R. Albino 50,273 50,273 -0- 50,273 -0- *
Daniel R. Keller(1) 457,969 74,949 383,020 74,949 383,020 *
Walter R. Wittmer 55,250 55,250 -0- 55,250 -0- *
All Directors and
officers as a group 2,675,972 1,063,377 1,612,595 1,063,377 1,612,595 5.1
(30 individuals)
* Less than one percent of outstanding units.
</TABLE>
(1) Includes 383,020 units held by a corporation of which
Messrs. Kinzel, Miears and Keller, together with certain
current and former executive officers of the General Partner,
are shareholders and, under Rule 13d-3 of the Securities and
Exchange Commission, are deemed to be the beneficial owners of
these units by having shared investment and voting power.
Messrs. Kinzel, Miears and Keller disclaim beneficial
ownership of 331,400, 341,724 and 346,886, respectively, of
these units. The units owned by the corporation have been
counted only once in the total of the directors and executive
officers as a group.
(2) Excludes 5,447,065 units held by other members of the
Knott family.
(3) Includes 763,976 units held by certain trusts of which
Mrs. Jorgenson and two other partners of Squire, Sanders &
Dempsey L.L.P. are trust advisors, as to which Mrs. Jorgenson
disclaims beneficial ownership.
<PAGE>
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Attention is directed to Note 1 to the consolidated financial
statements on page 10 in the Registrant's 1999 Annual Report to
Unitholders, which is incorporated herein by this reference.
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND
REPORTS ON FORM 8-K.
A. 1. Financial Statements
With respect to the consolidated financial statements of the
Registrant set forth below, attention is directed to pages 7-14
in the Registrant's 1999 Annual Report to Unitholders, which are
incorporated herein by this reference.
(i) Consolidated Balance Sheets - December 31, 1999 and 1998.
(ii) Consolidated Statements of Operations - Years ended
December 31, 1999, 1998 and 1997.
(iii) Consolidated Statements of Partners' Equity - Years ended
December 31, 1999, 1998 and 1997.
(iv) Consolidated Statements of Cash Flows - Years ended
December 31, 1999, 1998 and 1997.
(v) Notes to Consolidated Financial Statements - December 31,
1999, 1998 and 1997.
(vi) Report of Independent Public Accountants.
A. 2. Financial Statement Schedules
All Schedules are omitted, as the information is not required or
is otherwise furnished.
<PAGE>
A. 3. Exhibits
The exhibits listed below are incorporated herein by reference to
prior SEC filings by Registrant or are included as exhibits in
this Form 10-K.
Exhibit
Number Description
3.1* Form of Third Amended and Restated Certificate and
Agreement of Limited Partnership of Cedar Fair, L.P.
(included as Exhibit A to the Prospectus).
3.2 Form of Admission and Substitution Agreement.
Incorporated herein by reference to Exhibit 3.2 to
Registrant's Annual Report on Form 10-K for the year ended
December 31, 1988.
3.3 Amendment No. 2 to Third Amended and Restated Agreement of
Limited Partnership of Cedar Fair, L.P., dated as of
December 31, 1992. Incorporated herein by reference to
Exhibit 3.3 to Registrant's Annual Report on Form 10-K for
the year ended December 31, 1992.
4* Form of Deposit Agreement.
10.4 Private Shelf Agreement with The Prudential Insurance
Company of America dated August 24, 1994 for $50,000,000,
8.43% Senior Notes Due August 24, 2006.
10.9 Credit Agreement dated as of December 19, 1997 between
Cedar Fair, L.P., Cedar Fair, Magnum Management
Corporation and Knott's Berry Farm as co-borrowers, and
KeyBank National Association, NBD Bank, National City
Bank, First Union National Bank and Mellon Bank, N.A. as
lenders. Incorporated herein by reference to Exhibit 10.1
to Registrant's Form 8-K filed January 13, 1998.
10.10 Amendment No. 1 dated as of January 28, 1998, to Credit
Agreement dated as of December 19, 1997. Incorporated
herein by reference to Exhibit 10.10 to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998.
10.15 Bonus and Incentive Compensation Policy for Officers of
Cedar Fair Management Company dated as of November 2, 1992
and amended as of October 1994.
10.17 Cedar Fair, L.P. Executive Severance Plan dated as of July
26, 1995. Incorporated herein by reference to Exhibit
10.17 to Registrant's Annual Report on Form 10-K for the
year ended December 31, 1995.
10.18 Contribution Agreement by and among Cedar Fair, L.P.,
Knott's Berry Farm and the Partners of Knott's Berry Farm,
dated December 19, 1997. Incorporated herein by reference
to Exhibit 10 to Registrant's Form 8-K filed January 13,
1998.
10.19 Private Shelf Agreement with The Prudential Insurance
Company of America dated January 28, 1998 for $50,000,000,
6.68% Series B Notes Due August 24, 2011. Incorporated
herein by reference to Exhibit 10.19 to Registrant's
Annual Report on Form 10-K for the year ended December 31,
1998.
10.20 Credit Agreement dated as of November 30, 1999 between
Cedar Fair, L.P., Cedar Fair, Magnum Management
Corporation and Knott's Berry Farm as co-borrowers, and
KeyBank National Association, Bank One, Michigan, National
City Bank, First Union National Bank and Fifth Third Bank
as lenders.
13 1999 Annual Report to Unitholders.
21* Subsidiaries of Cedar Fair, L.P.
* Incorporated herein by reference to the Registration
Statement on Form S-1 of Cedar Fair, L.P., Registration
No. 1-9444, filed April 23, 1987.
B. Reports on Form 8-K.
Not applicable.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
CEDAR FAIR, L.P.
(Registrant)
DATED: March 28, 2000
/S/Richard L. Kinzel
Richard L. Kinzel
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Exchange Act of
1934, this Report has been executed below by the following
persons on behalf of the Registrant and in the capacities and on
the dates indicated.
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Signature Title Date
/S/ Richard L. Kinzel President and Chief March 28, 2000
Richard L. Kinzel Executive Officer,
Director
/S/ Bruce A. Jackson Corporate Vice March 28, 2000
Bruce A. Jackson President-Finance
(Chief Financial
Officer), Director
/S/ Charles M. Paul Corporate Controller March 28, 2000
Charles M. Paul (Chief Accounting
Officer)
/S/ Lee A. Derrough Director March 28, 2000
Lee A. Derrough
/S/ Richard S. Ferreira Director March 28, 2000
Richard S. Ferreira
/S/ Terry C. Hackett Director March 28, 2000
Terry C. Hackett
/S/ Mary Ann Jorgenson Director March 28, 2000
Mary Ann Jorgenson
/S/ Michael D. Director March 28, 2000
Kwiatkowski
Michael D. Kwiatkowski
/S/ Donald H. Messinger Director March 28, 2000
Donald H. Messinger
/S/ James L. Miears Executive Vice March 28, 2000
James L. Miears President, Director
/S/ Thomas A. Tracy Director March 28, 2000
Thomas A. Tracy
</TABLE>
<PAGE>
ANNUAL REPORT ON FORM 10-K
CEDAR FAIR, L.P.
For the Year Ended December 31, 1999
EXHIBIT INDEX
Exhibit Page
3.1* Form of Third Amended and Restated Certificate and
Agreement of Limited Partnership of Cedar Fair, L.P.
(included as Exhibit A to the Prospectus). *
3.2 Form of Admission and Substitution Agreement.
Incorporated herein by reference to Exhibit 3.2 to
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1988. *
3.3 Amendment No. 2 to Third Amended and Restated
Agreement of Limited Partnership of Cedar Fair, L.P.,
dated as of December 31, 1992. Incorporated herein by
reference to Exhibit 3.3 to Registrant's Annual Report
on Form 10-K for the year ended December 31, 1992. *
4* Form of Deposit Agreement. *
10.4 Private Shelf Agreement with The Prudential Insurance
Company of America dated August 24, 1994 for
$50,000,000, 8.43% Senior Notes Due August 24, 2006. 22
10.9 Credit Agreement dated as of December 19, 1997 between
Cedar Fair, L.P., Cedar Fair, Magnum Management
Corporation and Knott's Berry Farm as co-borrowers,
and KeyBank National Association, NBD Bank, National
City Bank, First Union National Bank and Mellon Bank,
N.A. as lenders. Incorporated herein by reference to
Exhibit 10.1 to Registrant's Form 8-K filed January
13, 1998. *
10.10 Amendment No. 1 dated as of January 28, 1998, to
Credit Agreement dated as of December 19, 1997.
Incorporated herein by reference to Exhibit 10.10 to
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998.
*
10.15 Bonus and Incentive Compensation Policy for Officers
of Cedar Fair Management Company dated as of November
2, 1992 and amended as of October 1994. 66
10.17 Cedar Fair, L.P. Executive Severance Plan dated as of
July 26, 1995. Incorporated herein by reference to
Exhibit 10.17 to Registrant's Annual Report on Form 10-
K for the year ended December 31, 1995.
*
10.18 Contribution Agreement by and among Cedar Fair, L.P.,
Knott's Berry Farm and the Partners of Knott's Berry
Farm, dated December 19, 1997. Incorporated herein by
reference to Exhibit 10 to Registrant's Form 8-K filed
January 13, 1998. *
10.19 Private Shelf Agreement with The Prudential Insurance
Company of America dated January 28, 1998 for
$50,000,000, 6.68% Series B Notes Due August 24, 2011.
Incorporated herein by reference to Exhibit 10.19 to
Registrant's Annual Report on Form 10-K for the year
ended December 31, 1998. *
10.20 Credit Agreement dated as of November 30, 1999 between
Cedar Fair, L.P., Cedar Fair, Magnum Management
Corporation and Knott's Berry Farm as co-borrowers,
and KeyBank National Association, Bank One, Michigan,
National City Bank, First Union National Bank and
Fifth Third Bank as lenders. 72
13 1999 Annual Report to Unitholders. 133
21 Subsidiaries of Cedar Fair, L.P. *
* Incorporated herein by reference: see Item 14 (A)(3).
<PAGE>
Exhibit 10.4
CEDAR FAIR, L.P.
PRIVATE SHELF AGREEMENT
$100,000,000
PRIVATE SHELF FACILITY
Dated as of August 24, 1994
<PAGE>
TABLE OF CONTENTS
(Not Part of Agreement)
Page
1. AUTHORIZATION OF ISSUE OF NOTES 1
2. PURCHASE AND SALE OF NOTES 2
3. CONDITIONS OF CLOSING 7
4. PREPAYMENTS 8
5. AFFIRMATIVE COVENANTS 10
6. NEGATIVE COVENANTS 13
7. EVENTS OF DEFAULT 18
8. REPRESENTATIONS, COVENANTS AND WARRANTIES 21
9. REPRESENTATIONS OF THE PURCHASERS 27
10. DEFINITIONS 27
11. MISCELLANEOUS 38
INFORMATION SCHEDULE
EXHIBIT A -- FORM OF PRIVATE SHELF NOTE
EXHIBIT B -- FORM OF REQUEST FOR PURCHASE
EXHIBIT C -- FORM OF CONFIRMATION OF ACCEPTANCE
EXHIBIT D -- FORM OF OPINION OF COMPANY'S COUNSEL
EXHIBIT E -- LIST OF AGREEMENTS LIMITING DEBT
<PAGE>
CEDAR FAIR, L.P.
One Causeway Drive
P.O. Box 5006
Sandusky, Ohio 44871
As of August 24, 1994
The Prudential Insurance Company
of America ("Prudential")
Each Prudential Affiliate (as hereinafter
defined) which becomes bound by certain
provisions of this Agreement as hereinafter
provided (together with Prudential, the
"Purchasers")
c/o Prudential Capital Group
Two Prudential Plaza
Suite 5600
Chicago, Illinois 60601
Gentlemen:
The undersigned, Cedar Fair, L.P., a Delaware limited
partnership (herein called the "Company"), hereby agrees with you
as follows:
1. AUTHORIZATION OF ISSUE OF NOTES. The Company will
authorize the issue of (but, except as provided in paragraph
2B(5), shall not be obligated to issue) its senior promissory
notes (herein called the "Notes") in the aggregate principal
amount of $100,000,000, to be dated the date of issue thereof, to
mature, in the case of each Note so issued, no less than three
years and no more than fifteen years after the date of original
issuance thereof, to have a weighted average life of no more than
twelve years, to bear interest on the unpaid balance thereof from
the date thereof at the rate per annum with respect to such Note,
and to have such other particular terms, as shall be set forth in
the applicable Confirmation of Acceptance delivered pursuant to
paragraph 2B(5), and to be substantially in the form of Exhibit A
attached hereto. The terms "Note" and "Notes" as used herein
shall include each Note delivered pursuant to any provision of
this Agreement and each Note delivered in substitution or
exchange for any such Note pursuant to any such provision. Notes
which have (i) the same final maturity, (ii) the same principal
prepayment dates, (iii) the same principal prepayment amounts (as
a percentage of the original principal amount of each Note), (iv)
the same interest rate, and (v) the same interest payment
periods, are herein called a "Series" of Notes.
<PAGE>
2A. [Intentionally Omitted.]
2B. PURCHASE AND SALE OF NOTES.
2B(1). Facility. Prudential is willing to consider, in its
sole discretion and within limits which may be authorized for
purchase by Prudential and Prudential Affiliates from time to
time, the purchase of Notes pursuant to this Agreement. The
willingness of Prudential to consider such purchase of Notes is
herein called the "Facility". At any time, the aggregate
principal amount of Notes stated in paragraph 1, minus the
aggregate principal amount of Notes purchased and sold pursuant
to this Agreement prior to such time, minus the aggregate
principal amount of Accepted Notes (as hereinafter defined) which
have not yet been purchased and sold hereunder prior to such time
is herein called the "Available Facility Amount" at such time.
NOTWITHSTANDING THE WILLINGNESS OF PRUDENTIAL TO CONSIDER
PURCHASES OF NOTES, THIS AGREEMENT IS ENTERED INTO ON THE EXPRESS
UNDERSTANDING THAT NEITHER PRUDENTIAL NOR ANY PRUDENTIAL
AFFILIATE SHALL BE OBLIGATED TO MAKE OR ACCEPT OFFERS TO PURCHASE
NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO
SPECIFIC PURCHASES OF NOTES, AND THE FACILITY SHALL IN NO WAY BE
CONSTRUED AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL
AFFILIATE.
2B(2). Issuance Period. Notes may be issued and sold
pursuant to this Agreement until the earlier of (i) the second
anniversary of the date of this Agreement and (ii) the thirtieth
day after Prudential shall have given to the Company, or the
Company shall have given to Prudential, a notice stating that it
elects to terminate the Facility (or if such thirtieth day is not
a Business Day, the Business Day next preceding such thirtieth
day). The period during which Notes may be issued and sold
pursuant to this Agreement is herein called the "Issuance
Period".
<PAGE>
2B(3). Request for Purchase. The Company may from time to
time during the Issuance Period make requests for purchases of
Notes (each such request being herein called a "Request for
Purchase"). Each Request for Purchase shall be made to
Prudential by telecopier and confirmed by nationwide overnight
delivery service, and shall (i) specify the aggregate principal
amount of Notes covered thereby, which shall not be less than
$10,000,000 and not be greater than the Available Facility Amount
at the time such Request for Purchase is made, (ii) specify the
principal amounts, final maturities and principal payment dates
and amounts, (iii) specify the use of proceeds of such Notes,
(iv) specify the proposed day for the closing of the purchase and
sale of such Notes, which shall be a Business Day during the
Issuance Period not less than 5 Business Days and not more than
25 Business Days after the Acceptance Day (if any) with respect
to such Request for Purchase, (v) specify the number of the
account and the name and address of the depository institution to
which the purchase prices of such Notes are to be transferred on
the Closing Day for such purchase and sale, (vi) certify that the
representations and warranties contained in paragraph 8 are true
on and as of the date of such Request for Purchase except to the
extent of changes caused by the transactions herein contemplated
and that there exists on the date of such Request for Purchase no
Event of Default or Default and (vii) be substantially in the
form of Exhibit B attached hereto. Each Request for Purchase
shall be in writing and shall be deemed made when received by
Prudential.
2B(4). Rate Quotes. Not later than Three Business Days
after the Company shall have given Prudential a Request for
Purchase pursuant to paragraph 2B(3), Prudential may provide (by
telephone promptly thereafter confirmed by telecopier, in each
case no earlier than 9:30 A.M. and no later than 1:30 P.M. New
York City local time) interest rate quotes for the several
principal amounts, maturities, prepayment schedules and interest
payment periods of Notes specified in such Request for Purchase.
Each quote pursuant to this paragraph 2B(4) shall represent the
fixed interest rate per annum payable on the outstanding
principal balance of such Notes until such balance shall have
become due and payable, at which Prudential or a Prudential
Affiliate would be willing to purchase such Notes at 100% of the
principal amount thereof.
<PAGE>
2B(5). Acceptance. Within 30 minutes after Prudential
shall have provided any interest rate quotes pursuant to
paragraph 2B(4) or such shorter period as Prudential may specify
to the Company (such period herein called the "Acceptance
Window"), the Company may, subject to paragraph 2B(6), elect to
accept such interest rate quotes. Such election shall be made by
an Authorized Officer of the Company notifying Prudential by
telephone or telecopier within the Acceptance Window (but not
earlier than 9:30 A.M. or later than 2:00 P.M., New York City
local time) that the Company elects to accept such interest rate
quotes, specifying the Note (each such Note being herein called
an "Accepted Note") as to which such acceptance (herein called an
"Acceptance") relates. The day the Company notifies Prudential
of an Acceptance with respect to any Accepted Notes is herein
called the "Acceptance Day" for such Accepted Notes. Any
interest rate quotes as to which Prudential does not receive an
Acceptance within the Acceptance Window shall expire, and no
purchase or sale of Notes hereunder shall be made based on such
expired interest rate quotes. Subject to paragraph 2B(6) and the
other terms and conditions hereof, the Company agrees to sell to
Prudential or a Prudential Affiliate, and Prudential agrees to
purchase, or to cause the purchase by a Prudential Affiliate of,
the Accepted Notes. As soon as practicable following the
Acceptance Day, the Company, Prudential and each Prudential
Affiliate which is to purchase any such Accepted Notes will
execute a confirmation of such Acceptance substantially in the
form of Exhibit C attached hereto (herein called a "Confirmation
of Acceptance").
2B(6). Market Disruption. Notwithstanding the provisions
of paragraph 2B(5), if Prudential shall have provided interest
rate quotes pursuant to paragraph 2B(5) and thereafter, prior to
the time an Acceptance with respect to such quotes shall have
been notified to Prudential in accordance with paragraph 2B(5),
there shall occur a general suspension, material limitation, or
significant disruption of trading in securities generally on the
New York Stock Exchange or in the market for U.S. Treasury
securities or derivatives, then such interest rate quotes shall
expire, and no purchase or sale of Notes hereunder shall be made
based on such expired interest rate quotes. If the Company
thereafter notifies Prudential of the Acceptance of any such
interest rate quotes, such Acceptance shall be ineffective for
all purposes of this Agreement, and Prudential shall promptly
notify the Company that the provisions of this paragraph 2B(6)
are applicable with respect to such Acceptance.
<PAGE>
2B(7). Closing. Not later than 11:30 A.M. (New York City
local time) on the Closing Day for any Accepted Notes, the
Company will deliver to Prudential or the Prudential Affiliate
listed in the Confirmation of Acceptance relating thereto at the
offices of Prudential Capital Group, Two Prudential Plaza, Suite
5600, Chicago, Illinois 60601, the Notes to be purchased by such
Purchaser in the form of a single Accepted Note for the Accepted
Notes which have exactly the same terms (or such greater number
of Notes in authorized denominations as such Purchaser may
request) dated the Closing Day and registered in such Purchaser's
name, against payment of the purchase price thereof by transfer
of immediately available funds for credit to the Company's
account specified in the Request for Purchase of such Notes. If
the Company fails to tender to any Purchaser the Accepted Notes
to be purchased by such Purchaser on the scheduled Closing Day
for such Accepted Notes as provided above in this paragraph
2B(7), or any of the conditions specified in paragraph 3 shall
not have been fulfilled by the time required on such scheduled
Closing Day, the Company shall, prior to 1:00 P.M., New York City
local time, on such scheduled Closing Day notify such Purchaser
in writing whether (x) such closing is to be rescheduled (such
rescheduled date to be a Business Day during the Issuance Period
not less than one Business Day and not more than 10 Business Days
after such scheduled Closing Day (the "Rescheduled Closing Day")
and certify to such Purchaser that the Company reasonably
believes that it will be able to comply with the conditions set
forth in paragraph 3 on such Rescheduled Closing Day and that the
Company will pay the Delayed Delivery Fee in accordance with
paragraph 2B(8)(ii) or (y) such closing is to be cancelled as
provided in paragraph 2B(8)(iii). In the event that the Company
shall fail to give such notice referred to in the preceding
sentence, Prudential (on behalf of each Purchaser) may at its
election, at any time after 1:00 P.M., New York City local time,
on such scheduled Closing Day, notify the Company in writing that
such closing is to be cancelled as provided in paragraph
2B(8)(iii).
2B(8). Fees.
2B(8)(i) Facility Fee. The Company will pay to Prudential
in immediately available funds a fee (herein called the "Facility
Fee") on each Closing Day (other than the first such Closing Day,
on which no Facility Fee shall be due) in an amount equal to
0.15% of the aggregate principal amount of Notes sold on such
Closing Day.
2B(8)(ii) Delayed Delivery Fee. If the closing of the
purchase and sale of any Accepted Note is delayed for any reason
beyond the original Closing Day for such Accepted Note (other
than the failure of a Purchaser to fund the purchase of an
Accepted Note after all conditions to closing specified in
paragraph 3 have been timely satisfied), the Company will pay to
Prudential (for the benefit of the Purchasers) on the last
Business Day of each calendar month, commencing with the first
such day to occur more than 30 days after the Acceptance Day for
such Accepted Note and ending with the last such day to occur
prior to the Cancellation Date or the actual closing date of such
purchase and sale, and on the Cancellation Date or actual closing
date of such purchase and sale, a fee (herein called the "Delayed
Delivery Fee") calculated as follows:
(BEY - MMY) X DTS/360 X PA
<PAGE>
where "BEY" means Bond Equivalent Yield, i.e., the bond
equivalent yield per annum of such Accepted Note; "MMY" means
Money Market Yield, i.e., the yield per annum on a commercial
paper investment of the highest quality selected by Prudential on
the date Prudential receives notice of the delay in the closing
for such Accepted Notes having a maturity date or dates the same
as, or closest to, the Rescheduled Closing Day or Rescheduled
Closing Days (a new alternative investment being selected by
Prudential each time such closing is delayed); "DTS" means Days
to Settlement, i.e., the number of actual days elapsed from and
including the originally scheduled Closing Day with respect to
such Accepted Note (in the case of the first such payment with
respect to such Accepted Note) or from and including the date of
the next preceding payment (in the case of any subsequent delayed
delivery fee payment with respect to such Accepted Note) to but
excluding the date of such payment; and "PA" means Principal
Amount, i.e., the principal amount of the Accepted Note for which
such calculation is being made. In no case shall the Delayed
Delivery Fee be less than zero. Nothing contained herein shall
obligate any Purchaser to purchase any Accepted Note on any day
other than the Closing Day for such Accepted Note, as the same
may be rescheduled from time to time in compliance with paragraph
2B(7).
2B(8)(iii) Cancellation Fee. If the Company at any time
notifies Prudential in writing that the Company is cancelling the
closing of the purchase and sale of any Accepted Note, or if
Prudential notifies the Company in writing under the
circumstances set forth in the last sentence of paragraph 2B(7)
that the closing of the purchase and sale of any Accepted Note is
to be cancelled, or if the closing of the purchase and sale of
any Accepted Note is not consummated on or prior to the last day
of the Issuance Period (the date of any such notification, or the
last day of the Issuance Period, as the case may be, being herein
called the "Cancellation Date"), the Company will pay to
Prudential (for the benefit of the Purchasers) in immediately
available funds an amount (the "Cancellation Fee") calculated as
follows:
PI X PA
where "PI" means Price Increase, i.e., the quotient (expressed in
decimals) obtained by dividing (a) the excess of the ask price
(as determined by Prudential) of the Hedge Treasury Note(s) on
the Cancellation Date over the bid price (as determined by
Prudential) of the Hedge Treasury Note(s) on the Acceptance Day
for such Accepted Note by (b) such bid price; and "PA" has the
meaning ascribed to it in paragraph 2B(8)(ii). The foregoing bid
and ask prices shall be as reported by Telerate Systems, Inc.
(or, if such data for any reason ceases to be available through
Telerate Systems, Inc., any publicly available source of similar
market data). Each price shall be based on a U.S. Treasury
security having a par value of $100.00 and shall be rounded to
the second decimal place. In no case shall the Cancellation Fee
be less than zero.
<PAGE>
3. CONDITIONS OF CLOSING. The obligation of any Purchaser
to purchase any Accepted Notes is subject to the satisfaction, on
or before the applicable Closing Day for such Accepted Notes, of
the following conditions:
3A. Opinion of Company's Counsel. On each Closing Day,
such Purchaser shall have received from Squire, Sanders &
Dempsey, special counsel to the Company, or other counsel
designated by the Company and acceptable to such Purchaser, a
favorable opinion satisfactory to the Purchaser and substantially
in the form of Exhibit D attached hereto and as to such other
matters as such Purchaser may reasonably request. The Company
hereby directs such counsel to deliver such opinion, and agrees
that the issuance and sale of any Notes will constitute a
reconfirmation of such direction.
3B. Opinion of Purchaser's Special Counsel. Such Purchaser
shall have received from James F. Evert, Assistant General
Counsel of Prudential, or such other counsel who is acting as
counsel for it in connection with this transaction, a favorable
opinion satisfactory to such Purchaser as to such matters
incident to the matters herein contemplated as it may reasonably
request.
3C. Representations and Warranties; No Default. The
representations and warranties contained in paragraph 8 shall be
true on and as of the applicable Closing Day, except to the
extent of changes caused by the transactions herein contemplated;
there shall exist on the applicable Closing Day no Default or
Event of Default (assuming, if no Note is outstanding on such
Closing Day, that paragraph 6 hereof is then in effect); and the
Company shall have delivered to each Purchaser an Officer's
Certificate, dated the applicable Closing Day, to both such
effects.
3D. Fees. On or before each Closing Day, the Company shall
have paid to Prudential any fee required by paragraphs 2B(8)(i)
and 2B(8)(ii).
3E. Purchase Permitted By Applicable Laws. The purchase of
and payment for the Notes to be purchased on the applicable
Closing Day on the terms and conditions herein provided
(including the use of the proceeds of such Notes by the Company)
shall not violate any applicable law or governmental regulation
(including, without limitation, section 5 of the Securities Act
or Regulation G, T or X of the Board of Governors of the Federal
Reserve System) and shall not subject any Purchaser to any tax,
penalty, liability or other onerous condition under or pursuant
to any applicable law or governmental regulation, and such
Purchaser shall have received such certificates or other evidence
as such Purchaser may reasonably request to establish compliance
with this condition.
<PAGE>
3F. Proceedings. All corporate and other proceedings taken
or to be taken in connection with the transactions contemplated
hereby and all documents incident thereto shall be satisfactory
in substance and form to each Purchaser, and each Purchaser shall
have received all such counterpart originals or certified or
other copies of such documents as it may reasonably request.
4. PREPAYMENTS. The Notes shall be subject to prepayment
with respect to the required prepayments specified in paragraph
4A and also under the circumstances set forth in paragraph 4B.
4A. Required Prepayment of Notes. Until a Series of Notes
shall be paid in full, such Series of Notes shall be subject to
such required prepayments, if any, as are set forth in such
Series of Notes. Any prepayment made by the Company pursuant to
any other provision of this paragraph 4 shall not reduce or
otherwise affect its obligation to make any scheduled prepayment
as specified in each Series of Notes.
4B. Optional Prepayment With Yield-Maintenance Amount. The
Notes of each Series shall be subject to optional prepayment, in
whole or in part, in increments of $100,000, and in a minimum
amount of $1,000,000, at the option of the Company, at 100% of
the principal amount so prepaid plus interest thereon to the
prepayment date and the Yield-Maintenance Amount, if any, with
respect to each such Note. Any partial prepayment of a Series of
Notes pursuant to this paragraph 4B shall be applied in
satisfaction of required payments of principal in inverse order
of their scheduled due dates.
4C. Notice of Optional Prepayment. The Company shall give
notice to the holder of each Note of a Series irrevocable written
notice of any optional prepayment to be made pursuant to
paragraph 4B with respect to such Series not less than 10
Business Days prior to the prepayment date, specifying (i) such
prepayment date, (ii) the aggregate principal amount of the Notes
of such Series to be prepaid on such date, (iii) the principal
amount of the Notes of such holder to be prepaid on that date,
and (iv) stating that such optional prepayment is to be made
pursuant to paragraph 4B. Notice of optional prepayment having
been given as aforesaid, the principal amount of the Notes
specified in such notice, together with interest thereon to the
prepayment date and together with the Yield-Maintenance Amount,
if any, herein provided, shall become due and payable on such
prepayment date. The Company shall, on or before the day on
which it gives written notice of any prepayment pursuant to
paragraph 4B, give telephonic notice of the principal amount of
the Notes to be prepaid and the prepayment date to each
Significant Holder which shall have designated a recipient for
such notices in the purchaser schedule attached to the applicable
Confirmation of Acceptance or by notice in writing to the
Company.
<PAGE>
4D. Application of Prepayments. In the case of each
prepayment pursuant to paragraphs 4A or 4B of less than the
entire unpaid principal amount of all outstanding Notes of any
Series, the amount to be prepaid shall be applied pro rata to all
outstanding Notes of such Series (including, for the purpose of
this paragraph 4D only, all Notes of such Series prepaid or
otherwise retired or purchased or otherwise acquired by the
Company or any of its Subsidiaries or Affiliates other than by
prepayment pursuant to paragraphs 4A or 4B) according to the
respective unpaid principal amounts thereof.
4E. Retirement of Notes. The Company shall not, and shall
not permit any of its Subsidiaries or Affiliates to, prepay or
otherwise retire in whole or in part prior to their stated final
maturity (other than by prepayment pursuant to paragraphs 4A or
4B or upon acceleration of such final maturity pursuant to
paragraph 7A), or purchase or otherwise acquire, directly or
indirectly, any Notes of any Series unless the Company or such
Subsidiary or Affiliate shall have offered to prepay or otherwise
retire or purchase or otherwise acquire, as the case may be, the
same proportion of the aggregate principal amount of the Notes of
such Series held by each holder of Notes of such Series at the
time outstanding upon the same terms and conditions. Any Notes
prepaid or otherwise retired or purchased or otherwise acquired
by the Company or any of its Subsidiaries or Affiliates shall not
be deemed to be outstanding for any purpose under this Agreement,
except as provided in paragraph 4D.
5. AFFIRMATIVE COVENANTS.
5A. Financial Statements. The Company covenants that it
will deliver to each Significant Holder in triplicate:
(i) as soon as practicable and in any event within 60
days after the end of each quarterly period (other than the
last quarterly period) in each fiscal year, consolidated
statements of income, partners' equity or shareholders'
equity (as the case may be) and cash flows of the Company
and its Subsidiaries for (a) such quarterly period and (b)
the period of four consecutive fiscal quarters ended on the
last day of such quarterly period, and a consolidated
balance sheet of the Company and its Subsidiaries as at the
end of such quarterly period, setting forth in each case in
comparative form figures for the corresponding period in the
preceding fiscal year or years, all in reasonable detail and
certified by an authorized financial officer of the Company,
subject to changes resulting from year-end adjustments;
provided, however, that delivery pursuant to clause (iii)
below of copies of the Quarterly Report on Form 10-Q of the
Company for such quarterly period filed with the Securities
and Exchange Commission shall be deemed to satisfy the
requirements of this clause (i);
<PAGE>
(ii) as soon as practicable and in any event within
120 days after the end of each fiscal year, consolidated
statements of income, partners' equity and cash flows of the
Company and its Subsidiaries for such year, and a
consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year, setting forth in
each case in comparative form corresponding consolidated
figures from the preceding annual audit, all in reasonable
detail and satisfactory in form to the Required Holder(s),
and reported on by independent public accountants of
recognized national standing selected by the Company whose
report shall be without limitation as to scope of the audit
and satisfactory in substance to the Required Holder(s);
provided, however, that delivery pursuant to clause (iii)
below of copies of the Annual Report on Form 10-K of the
Company for such fiscal year filed with the Securities and
Exchange Commission shall be deemed to satisfy the
requirements of this clause (ii);
(iii) promptly upon transmission thereof, copies of
all such financial statements, proxy statements, notices and
reports as the Company shall send to its Limited Partners
generally and copies of all registration statements (without
exhibits), other than registration statements on Form S-8 or
any successor form, and all reports which it files with the
Securities and Exchange Commission (or any governmental body
or agency succeeding to the functions of the Securities and
Exchange Commission); and
(iv) with reasonable promptness, such other financial
data (including, without limitation, consolidating financial
statements and a copy of each other report submitted to the
Company or any Subsidiary by independent accountants in
connection with any annual, interim or special audit made by
them of the books of the Company or any Subsidiary) as such
Significant Holder may reasonably request.
<PAGE>
Together with each delivery of financial statements required by
clauses (i) and (ii) above, the Company will deliver to each
Significant Holder an Officer's Certificate (a) setting forth
(except to the extent specifically set forth in such financial
statements) the aggregate amounts of interest accrued on Funded
Debt and Current Debt of the Company and Subsidiaries during the
fiscal period covered by such financial statements, and the
aggregate amounts of depreciation on physical property charged on
the books of the Company and Subsidiaries (if any) during such
fiscal period, (b) demonstrating (with computations in reasonable
detail) compliance by the Company and its Subsidiaries with
paragraph 6A(2) (including, without limitation, identification of
the most recent forty-five consecutive day period at all times
during which Consolidated Debt did not exceed 60% of Gross Worth)
and, to the extent Debt secured by Liens described in clauses (v)
and (vi) of paragraph 6A(1) exceeds $5,000,000, demonstrating
compliance with clauses (v) and (vi) of paragraph 6A(1), in each
case during and at the end of such fiscal period and (c) stating
that there exists no Event of Default or Default or, if any Event
of Default or Default exists, specifying the nature thereof, the
period of existence thereof and what action the Company proposes
to take with respect thereto. Together with each delivery of
financial statements required by clause (ii) above, the Company
will deliver to each Significant Holder a certificate of such
accountants stating that, in making the audit necessary to the
certification of such financial statements, they have obtained no
knowledge of any Event of Default or Default, or, if they have
obtained knowledge of any Event of Default or Default, specifying
the nature and period of existence thereof (provided that such
accountants shall not be liable to anyone by reason of their
failure to obtain knowledge of any such Event of Default or
Default which would not be disclosed in the course of an audit
conducted in accordance with generally accepted auditing
standards).
The Company also covenants that forthwith upon any
Responsible Officer obtaining knowledge of an Event of Default or
Default, it will deliver to each Significant Holder an Officer's
Certificate specifying the nature and period of existence thereof
and what action the Company proposes to take with respect
thereto.
5B. Inspection of Property. The Company covenants that it
will permit any Person designated by any Significant Holder in
writing, at such Significant Holder's expense, to visit and
inspect any of the properties of the Company and its
Subsidiaries, to examine the corporate books and financial
records of the Company and its Subsidiaries and make copies
thereof or extracts therefrom and to discuss the affairs,
finances and accounts of any of such entities with the officers
and directors of the Managing General Partner and the directors,
officers and independent accountants of the Company, all at such
reasonable times and as often as such Significant Holder may
reasonably request.
<PAGE>
5C. Covenant to Secure Note Equally. The Company covenants
that, if it or any Subsidiary shall create or assume any Lien
upon any of its property or assets, whether now owned or
hereafter acquired, other than Liens permitted by the provisions
of paragraph 6A(1) (unless prior written consent to the creation
or assumption thereof shall have been obtained pursuant to
paragraph 11C), it will make or cause to be made effective
provision whereby the Notes will be secured by such Lien equally
and ratably with any and all other Debt thereby secured so long
as any such other Debt shall be so secured.
5D. Information Required by Rule 144A. The Company
covenants that it will, upon the request of the holder of any
Note, provide such holder, and any qualified institutional buyer
designated by such holder, such financial and other information
as such holder may reasonably determine to be necessary in order
to permit compliance with the information requirements of Rule
144A under the Securities Act in connection with the resale of
Notes, except at such times as the Company is subject to the
reporting requirements of section 13 or 15(d) of the Exchange
Act. For the purpose of this paragraph 5D, the term "qualified
institutional buyer" shall have the meaning specified in Rule
144A under the Securities Act.
5E. Compliance With Environmental Laws. The Company will,
and will cause each of its Subsidiaries to, comply in a timely
fashion with, or operate pursuant to valid waivers of the
provisions of, all Environmental Laws, except where noncompliance
would not materially adversely affect the business, condition
(financial or other) or operations of the Company and its
Subsidiaries taken as a whole.
5F. Maintenance of Insurance. The Company covenants that
it and each of its Subsidiaries will maintain insurance in such
amounts and against such casualties, liabilities, risks,
contingencies and hazards as is customarily maintained by other
similarly situated companies operating similar businesses and,
upon request of a Significant Holder, it will deliver an
Officers' Certificate specifying the details of such insurance
then in effect.
6. NEGATIVE COVENANTS. The provisions of this paragraph 6
shall remain in effect so long as any Note shall remain
outstanding or any other amount shall be owing hereunder.
6A. Lien, Debt and Other Restrictions. The Company
covenants that it will not and will not permit any Subsidiary to:
<PAGE>
6A(1). Liens. Create, assume or suffer to exist any Lien
upon any of its property or assets, whether now owned or
hereafter acquired (whether or not provision is made for the
equal and ratable securing of the Notes in accordance with the
provisions of paragraph 5C), except
(i) Liens for taxes not yet due or which are being
actively contested in good faith by appropriate proceedings,
(ii) other Liens incidental to the conduct of its
business or the ownership of its property and assets which
were not incurred in connection with the borrowing of money
or the obtaining of advances or credit, and which do not in
the aggregate materially detract from the value of its
property or assets or materially impair the use thereof in
the operation of its business,
(iii) subject to the limitation set forth in clause
(iii) of paragraph 6A(2), Liens on property or assets of a
Subsidiary to secure obligations of such Subsidiary to the
Company or another Subsidiary,
(iv) Liens consisting of Capitalized Leases if the
Funded Debt represented by the related Capitalized Lease
Obligations is permitted by paragraph 6A(2),
(v) any Lien existing on any property of any
corporation at the time it becomes a Subsidiary, or existing
prior to the time of acquisition upon any property acquired
by the Company or any Subsidiary through purchase, merger or
consolidation or otherwise, whether or not assumed by the
Company or such Subsidiary, or placed upon property at the
time of acquisition by the Company or any Subsidiary to
secure all or a portion of (or to secure Debt incurred to
pay all or a portion of) the purchase price thereof,
provided that (a) such property is not and shall not thereby
become encumbered in an amount in excess of 80% of the
lesser of the cost thereof or the fair value (as determined
in good faith by the board of directors of the Managing
General Partner or the Company, as the case may be) thereof
at the time such corporation becomes a Subsidiary or at the
time of acquisition of such property by the Company or a
Subsidiary, as the case may be, (b) any such Lien shall not
encumber any other property (except related replacement
parts) of the Company or such Subsidiary, and (c) the
aggregate amount of Debt secured by all such Liens and any
Liens permitted by clause (iv) above and clause (vi) below
at any one time outstanding shall be permitted by paragraph
6A(2), and
<PAGE>
(vi) any Lien renewing, extending or refunding any
Lien permitted by clause (v) above if the aggregate amount
of Debt secured by all such Liens and any Lien permitted by
clauses (iv) and (v) above at any one time outstanding shall
be permitted by paragraph 6A(2), provided that the principal
amount secured is not increased, and the Lien is not
extended to other property;
6A(2). Debt. Create, incur, assume, guarantee, suffer to
exist, or otherwise be or become directly or indirectly liable
for, any Funded or Current Debt, except
(i) Funded Debt of the Company represented by the
Notes,
(ii) Funded or Current Debt of any Subsidiary to the
Company,
(iii) Funded or Current Debt of any Subsidiary to any
other Subsidiary, provided that no Subsidiary shall become
liable for or suffer to exist any Debt permitted by this
clause (iii) unless the Subsidiary to which such Debt is
owed shall be free from any Debt to any Person other than
the Company, and
(iv) other Debt of the Company or any Subsidiary;
provided that (a) Consolidated Debt shall at no time exceed
70% of Gross Worth, (b) at all times during a period of at
least forty-five consecutive days in each rolling twelve
month period, Consolidated Debt shall not exceed 60% of
Gross Worth and (c) Priority Debt shall at no time exceed
20% of Owners' Equity;
6A(3). Loans, Advances, Investments and Contingent
Liabilities. Make or permit to remain outstanding any loan or
advance to, or guarantee, endorse or otherwise be or become
contingently liable, directly or indirectly, in connection with
the obligations, stock, or dividends of, or own, purchase or
acquire any stock, obligations or securities of, or any other
interest in, or make or maintain any capital contribution to, any
Person, except that the Company and its Subsidiaries may
(i) subject to paragraph 6A(2), make or permit to
remain outstanding loans or advances to the Company or any
Subsidiary,
(ii) subject to paragraph 6A(2), own, purchase or
acquire stock, obligations or securities of a Subsidiary or
of a corporation which immediately after such purchase or
acquisition will be a Subsidiary,
<PAGE>
(iii) acquire and own stock, obligations or securities
received in settlement of debts (created in the ordinary
course of business) owing to the Company or any Subsidiary,
(iv) own, purchase or acquire commercial paper rated
Prime-1 by Moody's Investors Service, Inc. or A-1 or better
by Standard & Poor's Corporation on the date of acquisition
and certificates of deposit of, bankers' acceptances issued
by, and eurodollar deposits with United States commercial
banks (having capital resources in excess of $100,000,000,
and, in the case of eurodollar deposits, issued by such bank
through its head office or a branch office in London or
Tokyo), in each case due within one year from the date of
acquisition and payable in the United States in United
States dollars, obligations of the United States Government
or any agency thereof backed by the full faith and credit of
the United States Government, obligations guaranteed by the
United States Government, and repurchase agreements of such
banks for terms of less than one year in respect of the
foregoing certificates and obligations,
(v) endorse negotiable instruments for collection in
the ordinary course of business,
(vi) guarantee or otherwise become directly or
indirectly liable for Debt to the extent the Debt is
permitted by paragraph 6A(2) (including, without limitation,
the limitation on Priority Debt set forth therein),
(vii) make or permit to remain outstanding travel,
relocation and other like advances to officers and employees
in the ordinary course of business, and
(viii) make or permit to remain outstanding any loans
or advances to, any guarantees for the benefit of, or any
investments in, any Person not otherwise permitted by this
paragraph 6A(3) up to an aggregate amount which shall not
exceed the principal amount of $10,000,000 at any one time
outstanding;
6A(4). Sale of Stock and Debt of Subsidiaries. Except to
the Company or a 75%-owned Subsidiary, sell or otherwise dispose
of, or part with control of, any shares of stock or Debt of any
(i) Significant Subsidiary, or (ii) other Subsidiary, if at the
time of such sale or other disposition, such other Subsidiary
owns, directly or indirectly, any shares of stock or Debt of any
Significant Subsidiary or any Debt of the Company;
<PAGE>
6A(5). Merger and Sale of Assets. Merge or consolidate
with any corporation or sell, lease, transfer or otherwise
dispose, in any single transaction or series of related
transactions, of assets which shall have contributed 10% or more
to Consolidated Pre-Tax Income for any of the three fiscal years
then most recently ended, or assets whose aggregate fair value
(as determined in good faith by the board of directors of the
Managing General Partner or the Company, as the case may be)
shall exceed 10% of Consolidated Net Assets, to any Person,
except that
(i) any 75%-owned Subsidiary which is free from any
Debt to any Person other than the Company may merge with any
one or more other 75%-owned Subsidiaries which are free from
any Debt to any Person other than the Company,
(ii) any Subsidiary may sell, lease, transfer or
otherwise dispose of any of its assets to the Company or a
75%-owned Subsidiary,
(iii) any Subsidiary may sell or otherwise dispose of
all or substantially all of its assets subject to the
conditions specified in paragraph 6A(4) with respect to a
sale of the stock of such Subsidiary,
(iv) the Company may enter into any merger in which it
is the surviving entity, provided that no Default or Event
of Default would exist immediately after giving effect
thereto,
(v) the Company may, in the ordinary course of
business, sell or otherwise dispose of (a) buildings and
parcels of land not used in connection with the business of
the Company or any Subsidiary and (b) vehicles, and
(vi) any Subsidiary may merge or consolidate with any
other corporation, provided that, immediately after giving
effect to such merger or consolidation, the continuing or
surviving corporation of such merger or consolidation shall
constitute a Subsidiary and no Default or Event of Default
would exist;
6A(6). Transactions with Related Persons. Directly or
indirectly, purchase, acquire or lease any property from, or
sell, transfer or lease any property to, or otherwise deal with,
in the ordinary course of business or otherwise, any Related
Person, except (i) pursuant to the terms of the Partnership
Agreement or (ii) on an arm's-length basis and on terms no less
favorable to the Company and its Subsidiaries (as determined in
good faith by the board of directors of the Managing General
Partner or the Company, as the case may be) than terms which
would have been obtainable from a Person other than a Related
Person.
<PAGE>
6B. Issuance of Stock by Subsidiaries. The Company
covenants that it will not permit any Subsidiary (either
directly, or indirectly by the issuance of rights or options for,
or securities convertible into, such shares or other equity
interest) to issue, sell or otherwise dispose of any shares of
any class of its stock or other equity interest (other than
directors' qualifying shares) except to the Company or a
75%-owned Subsidiary.
7. EVENTS OF DEFAULT.
7A. Acceleration. If any of the following events shall
occur and be continuing for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about
or be effected by operation of law or otherwise):
(i) the Company defaults in the payment of any
principal of or Yield-Maintenance Amount on any Note when
the same shall become due, either by the terms thereof or
otherwise as herein provided; or
(ii) the Company defaults in the payment of any
interest on any Note for more than 10 days after the date
due; or
(iii) the Company or any Subsidiary defaults in any
payment of principal of or interest on any other obligation
for money borrowed (or any Capitalized Lease Obligation, any
obligation under a conditional sale or other title retention
agreement, any obligation issued or assumed as full or
partial payment for property whether or not secured by a
purchase money mortgage or any obligation under notes
payable or drafts accepted representing extensions of
credit) beyond any period of grace provided with respect
thereto, or the Company or any Subsidiary fails to perform
or observe any other agreement, term or condition contained
in any agreement under which any such obligation is created
(or if any other event thereunder or under any such
agreement shall occur and be continuing) and the effect of
such failure or other event is to cause, or to permit the
holder or holders of such obligation (or a trustee on behalf
of such holder or holders) to cause, such obligation to
become due (or to be repurchased by the Company or any
Subsidiary) prior to any stated maturity, provided that the
aggregate amount of all obligations as to which such a
payment default shall occur and be continuing or such a
failure or other event permitting acceleration (or sale to
the Company or any Subsidiary) shall occur and be continuing
exceeds $5,000,000; or
<PAGE>
(iv) any representation or warranty made by the
Company herein or in any writing furnished in connection
with or pursuant to this Agreement shall be false in any
material respect on the date as of which made; or
(v) the Company fails to perform or observe any
agreement contained in paragraph 6 hereof; or
(vi) the Company fails to perform or observe any other
agreement, term or condition contained herein and such
failure shall not be remedied within 30 days after any
Responsible Officer has actual knowledge thereof; or
(vii) the Company or any Significant Subsidiary makes
an assignment for the benefit of creditors or is generally
not paying its debts as such debts become due; or
(viii) any decree or order for relief in respect
of the Company or any Significant Subsidiary is entered
under any bankruptcy, reorganization, compromise,
arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law, whether now or hereafter in
effect (herein called the "Bankruptcy Law"), of any
jurisdiction; or
(ix) the Company or any Significant Subsidiary
petitions or applies to any tribunal for, or consents to,
the appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or similar official of the
Company or any Significant Subsidiary, or of any substantial
part of the assets of the Company or any Significant
Subsidiary, or commences a voluntary case under the
Bankruptcy Law of the United States or any proceedings
(other than proceedings for the voluntary liquidation and
dissolution of a Subsidiary) relating to the Company or any
Significant Subsidiary under the Bankruptcy Law of any other
jurisdiction; or
(x) any such petition or application is filed, or any
such proceedings are commenced, against the Company or any
Significant Subsidiary and the Company or such Significant
Subsidiary by any act indicates its approval thereof,
consent thereto or acquiescence therein, or an order,
judgment or decree is entered appointing any such trustee,
receiver, custodian, liquidator or similar official, or
approving the petition in any such proceedings, and such
order, judgment or decree remains unstayed and in effect for
more than 60 days; or
<PAGE>
(xi) any order, judgment or decree is entered in any
proceedings against the Company decreeing the dissolution of
the Company and such order, judgment or decree remains
unstayed and in effect for more than 60 days; or
(xii) any order, judgment or decree is entered in any
proceedings against the Company or any Significant
Subsidiary decreeing a split-up of the Company or such
Significant Subsidiary which requires the divestiture of
assets representing a substantial part, or the divestiture
of the stock of a Significant Subsidiary whose assets
represent a substantial part, of the consolidated assets of
the Company and its Significant Subsidiaries (determined in
accordance with generally accepted accounting principles) or
which requires the divestiture of assets, or stock of a
Significant Subsidiary, which shall have contributed a
substantial part of the consolidated net income of the
Company and its Significant Subsidiaries (determined in
accordance with generally accepted accounting principles)
for any of the three fiscal years then most recently ended,
and such order, judgment or decree remains unstayed and in
effect for more than 60 days; or
(xiii) one or more final judgments for the payment of
money, the uninsured portion of which in aggregate amount
exceeds $5,000,000, is rendered against the Company or any
Subsidiary and, within 60 days after entry thereof, any such
judgment is not discharged or execution thereof stayed
pending appeal, or within 60 days after the expiration of
any such stay, such judgment is not discharged; or
(xiv) the Company or any ERISA Affiliate, in its
capacity as an employer under a Multiemployer Plan, makes a
complete or partial withdrawal from such Multiemployer Plan
resulting in the incurrence by such withdrawing employer of
a withdrawal liability in an amount exceeding $5,000,000;
then (a) if such event is an Event of Default specified in
clause (i) or (ii) of this paragraph 7A, the holder of any
Note (other than the Company or any of its Subsidiaries or
Affiliates) may at its option, by notice in writing to the
Company, declare such Note to be, and such Note shall
thereupon be and become, immediately due and payable at par
together with interest accrued thereon, without presentment,
demand, protest or additional notice of any kind, all of
which are hereby waived by the Company, (b) if such event is
an Event of Default specified in clause (viii), (ix) or (x)
of this paragraph 7A with respect to the Company, all of the
Notes at the time outstanding shall automatically become
immediately due and payable together with interest accrued
<PAGE>
thereon and together with the Yield-Maintenance Amount, if
any, with respect to each Note, without presentment, demand,
protest or notice of any kind, all of which are hereby
waived by the Company, and (c) with respect to any event
constituting an Event of Default hereunder, the Required
Holder(s) of the Notes of any Series may at its or their
option, by notice in writing to the Company, declare all of
the Notes of such Series to be, and all of such Notes shall
thereupon be and become, immediately due and payable
together with interest accrued thereon and together with the
Yield-Maintenance Amount, if any, with respect to each such
Note, without presentment, demand, protest or additional
notice of any kind, all of which are hereby waived by the
Company.
7B. Notice of Acceleration. Whenever any Note shall be
declared immediately due and payable pursuant to paragraph 7A the
Company shall forthwith give written notice thereof to the holder
of each Note of each Series at the time outstanding.
7C. Other Remedies. If any Event of Default or Default
shall occur and be continuing, the holder of any Note may proceed
to protect and enforce its rights under this Agreement and such
Note by exercising such remedies as are available to such holder
in respect thereof under applicable law, either by suit in equity
or by action at law, or both, whether for specific performance of
any covenant or other agreement contained in this Agreement or in
aid of the exercise of any power granted in this Agreement. No
remedy conferred in this Agreement upon the holder of any Note is
intended to be exclusive of any other remedy, and each and every
such remedy shall be cumulative and shall be in addition to every
other remedy conferred herein or now or hereafter existing at law
or in equity or by statute or otherwise.
8. REPRESENTATIONS, COVENANTS AND WARRANTIES. The Company
represents, covenants and warrants as follows:
8A. Organization and Qualification. The Company is a
limited partnership duly organized and existing in good standing
under the laws of the State of Delaware, has the power to own its
properties and to carry on its business as now being conducted
and is duly qualified to do business as a foreign limited
partnership and is in good standing in each jurisdiction in which
the character of the properties owned or leased by it or the
nature of the business transacted by it requires it to be so
qualified under applicable law, except where the failure to be so
qualified would not have a material adverse effect upon the
Company. Each Subsidiary is a corporation duly organized and
existing in good standing under the laws of its state of
<PAGE>
incorporation, has the corporate power to own its properties and
to carry on its business as now being conducted and is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction in which the character of the
properties owned or leased by it or the nature of the business
transacted by it requires it to be so qualified under applicable
law, except where the failure to be so qualified would not have a
material adverse effect upon such Subsidiary. The Company has
the power and authority to enter into, execute, deliver and
perform this Agreement and the Notes; this Agreement constitutes
the Company's valid and binding obligation; and each Note will
upon its issuance constitute the Company's valid and binding
obligation. The Partnership Agreement has been duly authorized,
executed and delivered by the Partners, is a valid, legal and
binding agreement of the Partners, and has been duly filed in all
places where such filing is required.
8B. Financial Statements. The Company has furnished each
Purchaser of any Accepted Notes with the following financial
statements, identified by a principal financial officer of the
Company: (i) consolidated balance sheets of the Company and its
Subsidiaries as at the last day in each of the five fiscal years
of the Company most recently completed prior to the date as of
which this representation is made or repeated to such Purchaser
(other than fiscal years completed within 120 days prior to such
date for which audited financial statements have not been
released) and consolidated statements of income, partners' equity
and cash flows of the Company and its Subsidiaries for each such
year, reported on by Arthur Andersen & Co. (or, with respect to
years subsequent to 1993, by Arthur Andersen & Co. or other
independent public accountants of recognized national standing);
and (ii) consolidated balance sheets of the Company and its
Subsidiaries as at the end of the quarterly period (if any) most
recently completed prior to such date and after the end of such
fiscal year (other than quarterly periods completed within 60
days prior to such date for which financial statements have not
been released) and the comparable quarterly period in the
preceding fiscal year and consolidated statements of income,
partners' equity and cash flows for (a) such quarterly periods
and (b) the period of four consecutive fiscal quarters ended on
the last day of such quarterly periods, prepared by the Company.
Such financial statements (including any related schedules and/or
notes) are true and correct in all material respects (subject, as
to interim statements, to changes resulting from audits and
normal year-end adjustments), have been prepared in accordance
with generally accepted accounting principles consistently
followed throughout the periods involved and show all
liabilities, direct and contingent, of the Company and its
Subsidiaries required to be shown in accordance with such
principles. The balance sheets fairly present the condition of
<PAGE>
the Company and its Subsidiaries as at the dates thereof, and the
statements of income, partners' equity and cash flows fairly
present the results of the operations of the Company and its
Subsidiaries for the periods indicated. There has been no
material adverse change in the business, condition or operations
(financial or otherwise) of the Company and its Subsidiaries
taken as a whole since the end of the most recent fiscal year for
which such audited financial statements have been furnished.
8C. Actions Pending. There are no actions, suits,
investigations or proceedings pending or, to the knowledge of the
elected officers of the Company or the Managing General Partner,
threatened against the Company or any of its Subsidiaries, or
any properties or rights of the Company or any of its
Subsidiaries, by or before any court, arbitrator or
administrative or governmental body which individually or in
aggregate might result in any material adverse change in the
business, condition or operations of the Company and its
Subsidiaries taken as a whole.
8D. Outstanding Debt. Neither the Company nor any of its
Subsidiaries has outstanding any Debt except as permitted by
paragraph 6A(2). There exists no default under the provisions of
any instrument evidencing such Debt or of any agreement relating
thereto.
8E. Title to Properties. The Company has and each of its
Subsidiaries has good and marketable title to its respective real
properties (other than properties which it leases) and good title
to all of its other respective properties and assets, including
the properties and assets reflected in the most recent audited
balance sheet referred to in paragraph 8B (other than properties
and assets disposed of in the ordinary course of business),
subject to no Lien of any kind except Liens permitted by
paragraph 6A(1). All leases necessary in any material respect
for the conduct of the business of the Company and its
Subsidiaries taken as a whole are valid and subsisting and are in
full force and effect.
<PAGE>
8F. Taxes. The Company has and each of its Subsidiaries
has filed all Federal, State and other income tax returns which,
to the best knowledge of the elected officers of the Company or
the Managing General Partner, are required to be filed, and each
has paid all taxes as shown on such returns and on all
assessments received by it to the extent that such taxes have
become due, except such taxes as are being contested in good
faith by appropriate proceedings for which adequate reserves have
been established in accordance with generally accepted accounting
principles.
8G. Conflicting Agreements and Other Matters. Neither the
Company nor any of its Subsidiaries is a party to any contract or
agreement or subject to any partnership agreement, charter or
other partnership or corporate restriction which materially and
adversely affects the business (as presently conducted),
property, assets or financial condition of the Company and its
Subsidiaries taken as a whole. Neither the execution nor
delivery of this Agreement or the Notes, nor the offering,
issuance and sale of the Notes, nor fulfillment of nor compliance
with the terms and provisions hereof and of the Notes will
conflict with, or result in a breach of the terms, conditions or
provisions of, or constitute a default under, or result in any
violation of, or result in the creation of any Lien upon any of
the properties or assets of the Company or any of its
Subsidiaries pursuant to, the Partnership Agreement or the
charter, by-laws or code of regulations of any Subsidiaries, any
award of any arbitrator or any agreement (including any agreement
with Partners or stockholders), instrument, order, judgment,
decree, statute, law, rule or regulation to which the Company or
any of its Subsidiaries is a party or otherwise subject. Neither
the Company nor any of its Subsidiaries is a party to, or
otherwise subject to any provision contained in, any instrument
evidencing Indebtedness of the Company or any Subsidiary, any
agreement relating thereto or any other contract or agreement
(including the Partnership Agreement and, in the case of any
Subsidiary, its charter) which limits the amount of, or otherwise
imposes restrictions on the incurring of, Debt of the Company of
the type to be evidenced by the Notes except (i) as of the date
of this Agreement, as set forth in the agreements listed in
Exhibit E attached hereto and (ii) as of any date subsequent to
the date of this Agreement when this representation is repeated,
as set forth in the agreements listed in Exhibit E or as
theretofore disclosed to Prudential in a writing which by its
terms modifies Exhibit E.
8H. Offering of Notes. Neither the Company nor any agent
acting on its behalf has, directly or indirectly, offered the
Notes or any similar security of the Company for sale to, or
solicited any offers to buy the Notes or any similar security of
<PAGE>
the Company from, or otherwise approached or negotiated with
respect thereto with, any Person other than institutional
investors, and neither the Company nor any agent acting on its
behalf has taken or will take any action which would subject the
issuance or sale of the Notes to the provisions of section 5 of
the Securities Act or to the provisions of any securities of Blue
Sky law of any applicable jurisdiction.
8I. Regulation G, etc. Neither the Company nor any
Subsidiary will, directly or indirectly, use any of the proceeds
of the sale of the Notes for the purpose, whether immediate,
incidental or ultimate, of buying a "margin stock" or of
maintaining, reducing or retiring any indebtedness originally
incurred to purchase a stock that is currently a "margin stock",
or for any other purpose which might constitute any purchase and
sale of Notes hereunder a "purpose credit", in each case within
the meaning of Regulation G of the Board of Governors of the
Federal Reserve System (12 C.F.R. 207, as amended). Neither the
Company nor any agent acting on its behalf has taken or will take
any action which might cause this Agreement or the Notes to
violate Regulation G, Regulation T or any other regulation of the
Board of Governors of the Federal Reserve System or to violate
the Securities Exchange Act of 1934, as amended, in each case as
in effect now or as the same may hereafter be in effect.
8J. ERISA. No accumulated funding deficiency (as defined
in section 302 of ERISA and section 412 of the Code), whether or
not waived, exists with respect to any Plan (other than a
Multiemployer Plan). No liability to the Pension Benefit
Guaranty Corporation has been or is expected by the Company or
any ERISA Affiliate to be incurred with respect to any Plan
(other than a Multiemployer Plan) by the Company or any
Subsidiary or any ERISA Affiliate which is or would be materially
adverse to the Company and its Subsidiaries taken as a whole.
Neither the Company, any Subsidiary nor any ERISA Affiliate has
incurred or presently expects to incur any withdrawal liability
under Title IV of ERISA with respect to any Multiemployer Plan
which is or would be materially adverse to the Company and its
Subsidiaries taken as a whole. The execution and delivery of
this Agreement and the issuance and sale of the Notes will not
involve any transaction which is subject to the prohibitions of
section 406 of ERISA or in connection with which a tax could be
imposed pursuant to section 4975 of the Code. The representation
by the Company in the next preceding sentence is made in reliance
upon and subject to the accuracy of the representation in
paragraph 9B as to the source of the funds to be used to pay the
purchase price of the Notes to be purchased.
<PAGE>
8K. Governmental Consent. Neither the nature of the
Company or of any Subsidiary, nor any of their respective
businesses or properties, nor any relationship between the
Company or any Subsidiary and any other Person, nor any
circumstance in connection with the offering, issuance, sale or
delivery of the Notes is such as to require any authorization,
consent, approval, exemption or other action by or notice to or
filing with any court or administrative or governmental body
(other than routine filings after the date of closing with the
Securities and Exchange Commission and/or state Blue Sky
authorities) in connection with the execution and delivery of
this Agreement, the offering, issuance, sale or delivery of the
Notes or fulfillment of or compliance with the terms and
provisions hereof or of the Notes.
8L. Environmental Compliance. The Company and its
Subsidiaries are in substantial compliance with any and all
Environmental Laws including, without limitation, all
Environmental Laws in all jurisdictions in which any of them owns
or operates, or has owned or operated, a facility or site,
arranges or has arranged for disposal or treatment of hazardous
substances, solid waste or other wastes, accepts or has accepted
for transport any hazardous substances, solid waste or other
wastes or holds or has held any interest in real property or
otherwise. No material litigation or proceeding arising under,
relating to or in connection with any Environmental Law is
pending or, to the best knowledge of the Company, threatened
against the Company or any Subsidiary, any real property in which
any thereof holds or has held an interest or any past or present
operation of any thereof. No release, threatened release or
disposal of hazardous waste, solid waste or other wastes is
occurring, or has occurred, on, under or to any real property in
which the Company or any Subsidiary holds any interest or
performs any of its operations, in violation of any Environmental
Law the violation of which could reasonably be expected to have a
material adverse effect on the Company or its Subsidiaries. As
used in this paragraph, "litigation or proceeding" means any
demand, claim, notice, suit, suit in equity, action,
administrative action, investigation or inquiry whether brought
by any governmental authority, private person or entity or
otherwise, and "material" means the measure of a matter or
matters the exposure with respect to which individually or
together with all other matters described exceeds or can
reasonably be expected to exceed $2,500,000.
8M. Investment Company Status. Neither the Company nor any
Subsidiary is an "investment company" or a company "controlled"
by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended or an "investment adviser" within
the meaning of the Investment Advisers Act of 1940, as amended.
<PAGE>
8N. Disclosure. Neither this Agreement nor any other
document, certificate or statement furnished to any Purchaser by
or on behalf of the Company in connection herewith contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained herein
and therein not misleading. There is no fact peculiar to the
Company or any of its Subsidiaries which materially adversely
affects or in the future may (so far as the Company can now
foresee) materially adversely affect the business, property,
assets or financial condition of the Company and its Subsidiaries
taken as a whole and which has not been set forth in this
Agreement or in the other documents, certificates and statements
furnished to any Purchaser by or on behalf of the Company prior
to the date hereof in connection with the transactions
contemplated hereby.
8O. Hostile Tender Offers. None of the proceeds of the
sale of any Notes will be used to finance a Hostile Tender Offer.
9. REPRESENTATIONS OF THE PURCHASERS.
Each Purchaser represents as follows:
9A. Nature of Purchase. Such Purchaser is not acquiring
the Notes purchased by it hereunder with a view to or for sale in
connection with any distribution thereof within the meaning of
the Securities Act, provided that the disposition of such
Purchaser's property shall at all times be and remain within its
control.
9B. Source of Funds. No part of the funds used by such
Purchaser to pay the purchase price of the Notes purchased by
such Purchaser hereunder constitutes assets allocated to any
separate account maintained by such Purchaser in which any
employee benefit plan, other than employee benefit plans
identified on a list which has been furnished by such Purchaser
to the Company, participates to the extent of 10% or more. For
the purpose of this paragraph 9B, the terms "separate account"
and "employee benefit plan" shall have the respective meanings
specified in section 3 of ERISA.
10. DEFINITIONS. For the purpose of this Agreement, the
terms defined in the text of any paragraph shall have the
respective meanings specified therein, and the following terms
shall have the meanings specified with respect thereto below:
10A. Yield-Maintenance Terms.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which commercial banks in New York City are
required or authorized to be closed.
<PAGE>
"Called Principal" shall mean, with respect to any Note, the
principal of such Note that is to be prepaid pursuant to
paragraph 4B (any partial prepayment being applied in
satisfaction of required payments of principal in inverse order
of their scheduled due dates) or is declared to be immediately
due and payable pursuant to paragraph 7A, as the context
requires.
"Discounted Value" shall mean, with respect to the
Called Principal of any Note, the amount obtained by discounting
all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the
Settlement Date with respect to such Called Principal, in
accordance with accepted financial practice and at a discount
factor (as converted to reflect the periodic basis on which
interest on such Note is payable, if interest is payable other
than on a semi-annual basis) equal to the Reinvestment Yield with
respect to such Called Principal.
"Reinvestment Yield" shall mean, with respect to the Called
Principal of any Note, .50% plus the yield to maturity implied by
(i) the yields reported, as of 10:00 A.M. (New York City local
time) on the Business Day next preceding the Settlement Date with
respect to such Called Principal, on the display designated as
"Page 678" on the Telerate Service (or such other display as may
replace Page 678 on the Telerate Service) for actively traded
U.S. Treasury securities having a maturity equal to the Remaining
Average Life of such Called Principal as of such Settlement Date,
or if such yields shall not be reported as of such time or the
yields reported as of such time shall not be ascertainable, (ii)
the Treasury Constant Maturity Series yields reported, for the
latest day for which such yields shall have been so reported as
of the Business Day next preceding the Settlement Date with
respect to such Called Principal, in Federal Reserve Statistical
Release H.15 (519) (or any comparable successor publication) for
actively traded U.S. Treasury securities having a constant
maturity equal to the Remaining Average Life of such Called
Principal as of such Settlement Date. Such implied yield shall
be determined, if necessary, by (a) converting U.S. Treasury bill
quotations to bond-equivalent yields in accordance with accepted
financial practice and (b) interpolating linearly between
reported yields.
"Remaining Average Life" shall mean, with respect to the
Called Principal of any Note, the number of years (calculated to
the nearest one-twelfth year) obtained by dividing (i) such
Called Principal into (ii) the sum of the products obtained by
multiplying (a) each Remaining Scheduled Payment of such Called
Principal (but not of interest thereon) by (b) the number of
years (calculated to the nearest one-twelfth year) which will
elapse between the Settlement Date with respect to such Called
Principal and the scheduled due date of such Remaining Scheduled
Payment.
<PAGE>
"Remaining Scheduled Payments" shall mean, with respect to
the Called Principal of any Note, all payments of such Called
Principal and interest thereon that would be due on or after the
Settlement Date with respect to such Called Principal if no
payment of such Called Principal were made prior to its scheduled
due date.
"Settlement Date" shall mean, with respect to the Called
Principal of any Note, the date on which such Called Principal is
to be prepaid pursuant to paragraph 4B or is declared to be
immediately due and payable pursuant to paragraph 7A, as the
context requires.
"Yield-Maintenance Amount" shall mean, with respect to any
Note, an amount equal to the excess, if any, of the Discounted
Value of the Called Principal of such Note over the sum of (i)
such Called Principal plus (ii) interest accrued thereon as of
(including interest due on) the Settlement Date with respect to
such Called Principal. The Yield-Maintenance Amount shall in no
event be less than zero.
10B. Other Terms.
"Acceptance" shall have the meaning specified in paragraph
2B(5).
"Acceptance Day" shall have the meaning specified in
paragraph 2B(5).
"Acceptance Window" shall have the meaning specified in
paragraph 2B(5).
"Accepted Note" shall have the meaning specified in
paragraph 2B(5).
"Affiliate" shall mean, with respect to any Person, any
other Person directly or indirectly controlling, controlled by,
or under direct or indirect common control with such first
Person. A Person shall be deemed to control another Person if
such first Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of
such other Person, whether through the ownership of voting
securities, by contract or otherwise.
<PAGE>
"Authorized Officer" shall mean (i) in the case of the
Company, the chief executive officer, the chief financial officer
and the treasurer of the Company or the Managing General Partner,
as well as any vice president thereof designated as an
"Authorized Officer" in the Information Schedule attached hereto
or any vice president thereof designated as an "Authorized
Officer" for the purpose of this Agreement in an Officer's
Certificate executed by the Company's or Managing General
Partner's chief executive officer or chief financial officer and
delivered to Prudential, and (ii) in the case of Prudential, any
officer of Prudential designated as its "Authorized Officer" in
the Information Schedule or any officer of Prudential designated
as its "Authorized Officer" for the purpose of this Agreement in
a certificate executed by one of its Authorized Officers. Any
action taken under this Agreement on behalf of the Company by any
individual who on or after the date of this Agreement shall have
been an Authorized Officer of the Company or the Managing General
Partner and whom Prudential in good faith believes to be an
Authorized Officer of the Company or the Managing General Partner
at the time of such action shall be binding on the Company even
though such individual shall have ceased to be an Authorized
Officer of the Company or the Managing General Partner, and any
action taken under this Agreement on behalf of Prudential by any
individual who on or after the date of this Agreement shall have
been an Authorized Officer of Prudential, and whom the Company in
good faith believes to be an Authorized Officer of Prudential at
the time of such action shall be binding on Prudential even
though such individual shall have ceased to be an Authorized
Officer of Prudential.
"Available Facility Amount" shall have the meaning specified
in paragraph 2B(1).
"Bankruptcy Law" shall have the meaning specified in clause
(viii) of paragraph 7A.
"Cancellation Date" shall have the meaning specified in
paragraph 2B(8)(iii).
"Cancellation Fee" shall have the meaning specified in
paragraph 2B(8)(iii).
"Capitalized Lease" shall mean any lease if the obligation
to make rental payments thereunder constitutes a Capitalized
Lease Obligation.
"Capitalized Lease Obligation" shall mean any rental
obligation which, under generally accepted accounting principles,
is or will be required to be capitalized on the books of the
Company or any Subsidiary, taken at the amount thereof accounted
for as indebtedness (net of interest expense) in accordance with
such principles.
<PAGE>
"Closing Day" for any Accepted Note shall mean the Business
Day specified for the closing of the purchase and sale of such
Note in the Request for Purchase of such Note, provided that (i)
if the Company and the Purchaser which is obligated to purchase
such Note agree on an earlier Business Day for such closing, the
"Closing Day" for such Accepted Note shall be such earlier
Business Day, and (ii) if the closing of the purchase and sale of
such Accepted Note is rescheduled pursuant to paragraph 2B(7),
the Closing Day for such Accepted Note, for all purposes of this
Agreement except paragraph 2B(8)(ii), shall mean the Rescheduled
Closing Day with respect to such Closing.
"Code" shall mean the Internal Revenue Code of 1986, as
amended.
"Confirmation of Acceptance" shall have the meaning
specified in paragraph 2B(5).
"Consolidated Debt" shall mean, as of any time of
determination thereof, the sum of (i) Debt of the Company and
Subsidiaries determined on a consolidated basis and (ii) to the
extent in excess of $5,000,000, Debt of the Company owed to
Subsidiaries.
"Consolidated Net Assets" shall mean, as of any time of
determination thereof, with respect to the Company and
Subsidiaries on a consolidated basis, their assets less, without
duplication, all of their (i) current liabilities, (ii) asset,
liability, contingency and other appropriate reserves, including
reserves for depreciation and amortization expense and for
deferred income taxes nd (iii) other liabilities.
"Consolidated Pre-Tax Income" shall mean, for any period,
the consolidated gross revenues of the Company and its
Subsidiaries less all operating and nonoperating expenses of the
Company and its Subsidiaries including current additions to
reserves and all other charges of a proper character except
current and deferred taxes on income, but not including in gross
revenues any gains (nor in expenses any expenses or taxes
applicable thereto) in excess of losses resulting from the sale,
conversion or other disposition of capital assets (i.e., assets
other than current assets), any gains resulting from the write-up
of assets, any equity of the Company or any Subsidiary in the
unremitted earnings of any corporation which is not a Subsidiary,
any earnings of any Person acquired by the Company or any
Subsidiary through purchase, merger or consolidation or otherwise
for any year prior to the year of acquisition, or any deferred
credit representing the excess of equity in any Subsidiary at the
date of acquisition over the cost of the investment in such
Subsidiary.
<PAGE>
"Current Debt" shall mean, with respect to any Person, all
Indebtedness of such Person for borrowed money which by its terms
or by the terms of any instrument or agreement relating thereto
matures on demand or within one year from the date of the
creation thereof and is not directly or indirectly renewable or
extendible at the option of the debtor to a date more than one
year from the date of the creation thereof, provided that
Indebtedness for borrowed money outstanding under a revolving
credit or similar agreement which obligates the lender or lenders
to extend credit over a period of more than one year shall
constitute Funded Debt and not Current Debt, even though such
Indebtedness by its terms matures on demand or within one year
from the date of the creation thereof.
"Debt" shall mean Funded Debt and Current Debt.
"Delayed Delivery Fee" shall have the meaning specified in
paragraph 2B(8)(ii).
"Environmental Laws" shall mean all federal, state, local
and foreign laws relating to pollution or protection of the
environment, including laws relating to emissions, discharges,
releases or threatened releases of pollutants, contaminants,
chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including without limitation ambient air,
surface water, ground water, or land), or otherwise relating to
the manufacture, processing, distribution, use, treatment,
storage, disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous
substances or wastes, and any and all rules, regulations, codes,
plans, orders, decrees, judgments, injunctions, notices or demand
letters issued, entered, promulgated or approved thereunder.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended.
"ERISA Affiliate" shall mean any corporation which is a
member of the same controlled group of corporations as the
Company within the meaning of section 414(b) of the Code, or any
trade or business which is under common control with the Company
within the meaning of section 414(c) of the Code.
"Event of Default" shall mean any of the events specified in
paragraph 7A, provided that there has been satisfied any
requirement in connection with such event for the giving of
notice, or the lapse of time, or the happening of any further
condition, event or act, and "Default" shall mean any of such
events, whether or not any such requirement has been satisfied.
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
"Facility" shall have the meanings specified in paragraph
2B(1).
"Facility Fee" shall have the meaning specified in paragraph
2B(8)(i).
"Funded Debt" shall mean with respect to any Person, all
Indebtedness of such Person which by its terms or by the terms of
any instrument or agreement relating thereto matures, or which is
otherwise payable or unpaid, more than one year from, or is
directly or indirectly renewable or extendible at the option of
the debtor to a date more than one year (including an option of
the debtor under a revolving credit or similar agreement
obligating the lender or lenders to extend credit over a period
of more than one year) from, the date of the creation thereof.
"General Partners" shall mean collectively, the Managing
General Partner and the Special General Partner, which are the
general partners of the Company, and any Person substituted for
or who succeeds either of them as a general partner pursuant to
the terms of the Partnership Agreement, in each case in such
capacity.
"Gross Worth" shall mean, as of any time of determination
thereof, the sum of Owners' Equity and Consolidated Debt.
"Guarantee" shall mean, with respect to any Person, any
direct or indirect liability, contingent or otherwise, of such
Person with respect to any indebtedness, lease, dividend or other
obligation of another, including, without limitation, any such
obligation directly or indirectly guaranteed, endorsed (otherwise
than for collection or deposit in the ordinary course of
business) or discounted or sold with recourse by such Person, or
in respect of which such Person is otherwise directly or
indirectly liable, including, without limitation, any such
obligation in effect guaranteed by such Person through any
agreement (contingent or otherwise) to purchase, repurchase or
otherwise acquire such obligation or any security therefor, or to
provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital
contributions or otherwise), or to maintain the solvency or any
balance sheet or other financial condition of the obligor of such
obligation, or to make payment for any products, materials or
supplies or for any transportation or service, regardless of the
non-delivery or non-furnishing thereof, in any such case if the
purpose or intent of such agreement is to provide assurance that
<PAGE>
such obligation will be paid or discharged, or that any
agreements relating thereto will be complied with, or that the
holders of such obligation will be protected against loss in
respect thereof. The amount of any Guarantee shall be equal to
the outstanding principal amount of the obligation guaranteed or
such lesser amount to which the maximum exposure of the guarantor
shall have been specifically limited.
"Hedge Treasury Note(s)" shall mean, with respect to any
Accepted Note, the United States Treasury Note or Notes whose
duration (as determined by Prudential) most closely matches the
duration of such Accepted Note.
"Hostile Tender Offer" shall mean, with respect to the use
of proceeds of any Note, any offer to purchase, or any purchase
of, shares of capital stock of any corporation or equity
interests in any other entity, or securities convertible into or
representing the beneficial ownership of, or rights to acquire,
any such shares or equity interests, if such shares, equity
interests, securities or rights are of a class which is publicly
traded on any securities exchange or in any over-the-counter
market, other than purchases of such shares, equity interests,
securities or rights representing less than 5% of the equity
interests or beneficial ownership of such corporation or other
entity for portfolio investment purposes, and such offer or
purchase has not been duly approved by the board of directors of
such corporation or the equivalent governing body of such other
entity prior to the date on which the Company makes the Request
for Purchase of such Note.
"Indebtedness" shall mean, with respect to any Person,
without duplication, (i) all items (excluding deferred
compensation, items of contingency reserves and reserves for
deferred income taxes) which in accordance with generally
accepted accounting principles would be included in determining
total liabilities as shown on the liability side of a balance
sheet of such Person as of the date on which Indebtedness is to
be determined, (ii) all indebtedness secured by any Lien on any
property or asset owned or held by such Person subject thereto,
whether or not the indebtedness secured thereby shall have been
assumed, and (iii) all indebtedness of others with respect to
which such Person has become liable by way of Guarantee.
"Issuance Period" shall have the meaning specified in
paragraph 2B(2).
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title
retention agreement, any lease in the nature thereof, and the
filing of or agreement to give any financing statement under the
Uniform Commercial Code of any jurisdiction) or any other type of
preferential arrangement for the purpose, or having the effect,
of protecting a creditor against loss or securing the payment or
performance of an obligation.
<PAGE>
"Limited Partner" shall mean any Person who is or shall
become a limited partner of the Company, in such capacity.
"Managing General Partner" shall mean Cedar Fair Management
Company, an Ohio corporation, and its successors and assigns.
"Multiemployer Plan" shall mean any Plan which is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA).
"Note" and "Notes" shall have the meaning specified in
paragraph 1.
"Officer's Certificate" shall mean a certificate signed in
the name of the Company by an Authorized Officer of the Company.
"Owners' Equity" shall mean, as of any time of determination
thereof, the partners' equity or shareholders' equity (as the
case may be) of the Company.
"Partner" shall mean any General Partner or any Limited
Partner.
"Partnership Agreement" shall mean the Third Amended and
Restated Agreement of Limited Partnership of the Company, dated
as of April 21, 1987, among Cedar Fair Management Company, Robert
L. Munger, Jr., as General Partners, and the limited partners
named therein, as the same has been and may be amended or
supplemented from time to time.
"Person" shall mean and include an individual, a
partnership, a joint venture, a corporation, a trust, an
unincorporated organization and a government or any department or
agency thereof.
"Plan" shall mean any "employee pension benefit plan" (as
such term is defined in section 3 of ERISA) which is or has been
established or maintained, or to which contributions are or have
been made, by the Company or by any trade or business, whether or
not incorporated which, together with the Company, is under
common control, as described in section 414(b) or (c) of the
Code.
<PAGE>
"Priority Debt" shall mean, as of any time of determination
thereof, (i) Debt of any Subsidiary, other than Debt owed to the
Company or another Subsidiary and (ii) Debt of the Company
secured by any Lien.
"Prudential" shall mean The Prudential Insurance Company of
America.
"Prudential Affiliate" shall mean any corporation or other
entity all of the Voting Stock (or equivalent voting securities
or interests) of which is owned by Prudential either directly or
through Prudential Affiliates.
"Purchaser(s)" shall mean Prudential and each Prudential
Affiliate as purchaser of any Note.
"Related Person" shall mean (i) any General Partner, (ii)
any Person owning 10% or more of the depositary units
representing limited partnership interests in the Company or
(iii) any Affiliate of any Person described in clause (i) or
(ii).
"Request for Purchase" shall have the meaning specified in
paragraph 2B(3).
"Required Holder(s)" shall mean the holder or holders of at
least 51% of the aggregate principal amount of the Notes or of a
Series of Notes, as the context may require, from time to time
outstanding.
"Rescheduled Closing Day" shall have the meaning specified
in paragraph 2B(7).
"Responsible Officer" shall mean the chief executive
officer, chief operating officer, treasurer, chief financial
officer or chief accounting officer of the Company, general
counsel of the Company or any other officer of the Company
involved principally in its financial administration or its
controllership function.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Series" shall have the meaning specified in paragraph 1.
"Significant Holder" shall mean (i) Prudential and any other
Purchaser, so long as Prudential or such Purchaser shall hold (or
be committed under this Agreement to purchase) any Note, or (ii)
any other holder of at least 5% of the aggregate principal amount
of any Series of Notes from time to time outstanding.
<PAGE>
"Significant Subsidiary" shall mean any Subsidiary of the
Company or any of its Subsidiaries, (i) having assets which shall
have contributed 10% or more of Consolidated Pre-Tax Income for
any of the three fiscal years then most recently ended, (ii)
having assets whose aggregate fair value (as determined in good
faith by the board of directors of the Managing General Partner
or the Company, as the case may be) shall exceed 10% of the
Consolidated Net Assets or (iii) the sale of which shall have a
material adverse effect on the Company.
"Special General Partner" shall mean CF Partners, a Delaware
general partnership, and its successors and assigns.
"Subsidiary" shall mean any corporation or partnership the
majority of the stock of every class of which, except directors'
qualifying shares, or the majority of equity interest in which
shall, at the time as of which any determination is being made,
be owned by the Company either directly or through Subsidiaries
and "75%-owned Subsidiary" shall mean any corporation or
partnership 75% of the stock of every class of which, except
directors' qualifying shares, or 75% of the equity interest in
which shall, at the time as of which any determination is being
made, be owned by the Company either directly or through a 75%-
owned Subsidiary.
"Transferee" shall mean any direct or indirect transferee of
all or any part of any Note purchased under this Agreement.
"Voting Stock" shall mean, with respect to any corporation,
any shares of stock of such corporation whose holders are
entitled under ordinary circumstances to vote for the election of
directors of such corporation (irrespective of whether at the
time stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
10C. Accounting Principles, Terms and Determinations. All
references in this Agreement to "generally accepted accounting
principles" shall be deemed to refer to generally accepted
accounting principles in effect in the United States at the time
of application thereof. Unless otherwise specified herein, all
accounting terms used herein shall be interpreted, all
determinations with respect to accounting matters hereunder shall
be made, and all financial statements and certificates and
reports as to financial matters required to be furnished
hereunder shall be prepared, in accordance with generally
accepted accounting principles applied, in the case of any such
unaudited financial statements, certificates and reports, on a
basis consistent with the most recent audited consolidated
financial statements of the Company and its Subsidiaries
delivered pursuant to clause (ii) of paragraph 5A or, if no such
statements have been so delivered, the most recent audited
financial statements referred to in clause (i) of paragraph 8B.
<PAGE>
11. MISCELLANEOUS.
11A. Note Payments. The Company agrees that, so long as
any Purchaser shall hold any Note, it will make payments of
principal thereof and Yield-Maintenance Amount, if any, and
interest thereon, which comply with the terms of this Agreement,
by wire transfer of immediately available funds for credit to (i)
the account or accounts as specified in the purchaser schedule
attached to the applicable Confirmation of Acceptance or (ii)
such other account or accounts in the United States as any
Purchaser may designate in writing, notwithstanding any contrary
provision herein or in any Note with respect to the place of
payment. Each Purchaser agrees that, before disposing of any
Note, it will make a notation thereon (or on a schedule attached
thereto) of all principal payments previously made thereon and of
the date to which interest thereon has been paid. The Company
agrees to afford the benefits of this paragraph 11A to any
Transferee which shall have made the same agreement as you have
made in this paragraph 11A.
11B. Expenses. The Company agrees, whether or not the
transactions contemplated hereby shall be consummated, to pay,
and save each Purchaser and any Transferee harmless against
liability for the payment of, all out-of-pocket expenses arising
in connection with such transactions, including (i) all document
production and duplication charges and the fees and expenses of
any special counsel engaged by the Purchasers or any Transferee
in connection with this Agreement, the transactions contemplated
hereby and any subsequent proposed modification of, or proposed
consent under, this Agreement, whether or not such proposed
modification shall be effected or proposed consent granted, and
(ii) the costs and expenses, including attorneys' fees, incurred
by each Purchaser or any Transferee in enforcing (or in
determining whether or in what manner to enforce) any rights
under this Agreement or the Notes or in responding to any
subpoena or other legal process issued in connection with this
Agreement or the transactions contemplated hereby or by reason of
any Purchaser's or any Transferee's having acquired any Note,
including without limitation costs and expenses incurred in any
bankruptcy case. The obligations of the Company under this
paragraph 11B shall survive the transfer of any Note or portion
thereof or interest therein by any Purchaser or any Transferee
and the payment of any Note.
<PAGE>
11C. Consent to Amendments. This Agreement may be amended,
and the Company may take any action herein prohibited, or omit to
perform any act herein required to be performed by it, if the
Company shall obtain the written consent to such amendment,
action or omission to act, of the Required Holder(s) of the Notes
of each Series except that, (i) with the written consent of the
holders of all Notes of a particular Series, and if an Event of
Default shall have occurred and be continuing, of the holders of
all Notes of all Series, at the time outstanding (and not without
such written consents), the Notes of such Series may be amended
or the provisions thereof waived to change the maturity thereof,
to change or affect the principal thereof, or to change or affect
the rate or time of payment of interest or Yield-Maintenance
Amount payable with respect to the Notes of such Series, (ii)
without the written consent of the holder or holders of all Notes
at the time outstanding, no amendment to or waiver of the
provisions of this Agreement shall change or affect the
provisions of paragraph 7A or this paragraph 11C insofar as such
provisions relate to proportions of the principal amount of the
Notes of any Series, or the rights of any individual holder of
Notes, required with respect to any declaration of Notes to be
due and payable or with respect to any consent, (iii) with the
written consent of Prudential (and not without the written
consent of Prudential) the provisions of paragraph 2 may be
amended or waived (except insofar as any such amendment or waiver
would affect any rights or obligations with respect to the
purchase and sale of Notes which shall have become Accepted Notes
prior to such amendment or waiver) and (iv) with the written
consent of all of the Purchasers which shall have become
obligated to purchase Accepted Notes of any Series (and not
without the written consent of all such Purchasers), any of the
provisions of paragraphs 2 and 3 may be amended or waived insofar
as such amendment or waiver would affect only rights or
obligations with respect to the purchase and sale of the Accepted
Notes of such Series or the terms and provisions of such Accepted
Notes. Each holder of any Note at the time or thereafter
outstanding shall be bound by any consent authorized by this
paragraph 11C, whether or not such Note shall have been marked to
indicate such consent, but any Notes issued thereafter may bear a
notation referring to any such consent. No course of dealing
between the Company and the holder of any Note nor any delay in
exercising any rights hereunder or under any Note shall operate
as a waiver of any rights of any holder of such Note. As used
herein and in the Notes, the term "this Agreement" and references
thereto shall mean this Agreement as it may from time to time be
amended or supplemented.
<PAGE>
11D. Form, Registration, Transfer and Exchange of Notes;
Lost Notes. The Notes are issuable as registered notes without
coupons in denominations of at least $1,000,000, except as may be
necessary to reflect any principal amount not evenly divisible by
$1,000,000. The Company shall keep at its principal office a
register in which the Company shall provide for the registration
of Notes and of transfers of Notes. Upon surrender for
registration of transfer of any Note at the principal office of
the Company, the Company shall, at its expense, execute and
deliver one or more new Notes of like tenor and of a like
aggregate principal amount, registered in the name of such
transferee or transferees. At the option of the holder of any
Note, such Note may be exchanged for other Notes of like tenor
and of any authorized denominations, of a like aggregate
principal amount, upon surrender of the Note to be exchanged at
the principal office of the Company. Whenever any Notes are so
surrendered for exchange, the Company shall, at its expense,
execute and deliver the Notes which the holder making the
exchange is entitled to receive. Every Note surrendered for
registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer duly executed,
by the holder of such Note or such holder's attorney duly
authorized in writing. Any Note or Notes issued in exchange for
any Note or upon transfer thereof shall carry the rights to
unpaid interest and interest to accrue which were carried by the
Note so exchanged or transferred, so that neither gain nor loss
of interest shall result from any such transfer or exchange.
Upon receipt of written notice from the holder of any Note of the
loss, theft, destruction or mutilation of such Note and, in the
case of any such loss, theft or destruction, upon receipt of such
holder's unsecured indemnity agreement, or in the case of any
such mutilation upon surrender and cancellation of such Note, the
Company will make and deliver a new Note, of like tenor, in lieu
of the lost, stolen, destroyed or mutilated Note.
11E. Persons Deemed Owners; Participations. Prior to due
presentment for registration of transfer, the Company may treat
the Person in whose name any Note is registered as the owner and
holder of such Note for the purpose of receiving payment of
principal of and Yield-Maintenance Amount, if any, and interest
on such Note and for all other purposes whatsoever, whether or
not such Note shall be overdue, and the Company shall not be
affected by notice to the contrary. Subject to the preceding
sentence, the holder of any Note may from time to time grant
participations in all or any part of such Note to any Person on
such terms and conditions as may be determined by such holder in
its sole and absolute discretion.
<PAGE>
11F. Survival of Representations and Warranties; Entire
Agreement. All representations and warranties contained herein
or made in writing by or on behalf of the Company in connection
herewith shall survive the execution and delivery of this
Agreement and the Notes, the transfer by any Purchaser of any
Note or portion thereof or interest therein and the payment of
any Note, and may be relied upon by any Transferee, regardless of
any investigation made at any time by or on behalf of any
Purchaser or any Transferee. Subject to the preceding sentence,
this Agreement and the Notes embody the entire agreement and
understanding between the parties hereto with respect to the
subject matter hereof and supersede all prior agreements and
understandings relating to the subject matter hereof.
11G. Successors and Assigns. All covenants and other
agreements in this Agreement contained by or on behalf of any of
the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto
(including, without limitation, any Transferee) whether so
expressed or not.
11H. Notices. All written communications provided for
hereunder (other than communications provided for under paragraph
2) shall be sent by first class mail or nationwide overnight
delivery service (with charges prepaid) and (i) if to any
Purchaser, addressed as specified for such communications in the
purchaser schedule attached to the applicable Confirmation of
Acceptance, or at such other address as any Purchaser shall have
specified to the Company in writing, (ii) if to any other holder
of any Note, addressed to such other holder at such address as
such other holder shall have specified to the Company in writing
or, if any such other holder shall not have so specified an
address to the Company, then addressed to such other holder in
care of the last holder of such Note which shall have so
specified an address to the Company, and (iii) if to the Company,
addressed to it at Cedar Fair, L.P., One Causeway Drive, P.O. Box
5006, Sandusky, Ohio 44871, Attention: Chief Financial Officer,
or at such other address as the Company shall have specified to
the holder of each Note in writing. Any communication pursuant
to paragraph 2 shall be made by the method specified for such
communication in paragraph 2, and shall be effective to create
any rights or obligations under this Agreement only if, in the
case of a telephone communication, an Authorized Officer of the
party conveying the information and of the party receiving the
information are parties to the telephone call, and in the case of
a telecopier communication, the communication is signed by an
Authorized Officer of the party conveying the information,
addressed to the attention of an Authorized Officer of the party
receiving the information, and in fact received at the telecopier
terminal the number of which is set forth on the Information
Schedule attached hereto or at such other telecopier terminal as
the party receiving the information shall have specified in
writing to the party sending such information.
<PAGE>
11I. Descriptive Headings. The descriptive headings of the
several paragraphs of this Agreement are inserted for convenience
only and do not constitute a part of this Agreement.
11J. Satisfaction Requirement. If any agreement,
certificate or other writing, or any action taken or to be taken,
is by the terms of this Agreement required to be satisfactory to
any Purchaser, to any holder of Notes or to the Required
Holder(s), the determination of such satisfaction shall be made
by such Purchaser, such holder or the Required Holder(s), as the
case may be, in the sole and exclusive judgment (exercised in
good faith) of the Person or Persons making such determination.
11K. Payments Due on Non-Business Days. Anything in this
Agreement or the Notes to the contrary notwithstanding, any
payment of principal of or interest on any Note that is due on a
date other than a Business Day shall be made on the next
succeeding Business Day. If the date for any payment is extended
to the next succeeding Business Day by reason of the preceding
sentence, the period of such extension shall be included in the
computation of the interest payable on such Business Day.
11L. Limited Liability of Partners. Anything in this
Agreement or the Notes to the contrary notwithstanding, no
recourse under or in respect of this Agreement or the Notes shall
be had against any Partner, shareholder of a Partner or partner
of a Partner by the enforcement of any assessment or by any legal
or equitable proceeding, by virtue of statute or otherwise,
whether based on agency, deputization or otherwise, it being
expressly agreed that no personal liability whatsoever shall
attach to or be incurred by the Partners, shareholders of
Partners or partners of Partners or any of them under or by
reason of this Agreement or the Notes; provided that the
foregoing limitation of liability shall in no way constitute a
limitation on the right of the holders of the Notes to enforce
their remedies against the Company's assets for the collection of
amounts due and owing under the Notes or any other obligation of
the Company contemplated by this Agreement. Each of the Notes
shall contain a statement to the effect that the obligations of
the Partners are limited as provided in this paragraph 11L.
11M. Independence of Covenants. All covenants hereunder
shall be given independent effect so that if a particular action
or condition is prohibited by any one of such covenants, the fact
that it would be permitted by an exception to, or otherwise be in
compliance within the limitations of, another covenant shall not
avoid the occurrence of a Default or Event of Default if such
action is taken or such condition exists.
<PAGE>
11N. Severability. Any provision of this Agreement which
is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
11O. Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall
be governed by, the internal law of the State of Illinois.
11P. Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall
be deemed an original, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one
such counterpart.
11Q. Binding Agreement. When this Agreement is executed
and delivered by the Company and Prudential, it shall become a
binding agreement between the Company and Prudential. This
Agreement shall also inure to the benefit of each other Purchaser
which shall have executed and delivered a Confirmation
of Acceptance, and each such other Purchaser shall be bound by
this Agreement to the extent provided in such Confirmation of
Acceptance.
Very truly yours,
CEDAR FAIR, L.P.
By: CEDAR FAIR MANAGEMENT COMPANY,
Managing General Partner
By: ______________________________
Its: _____________________________
The foregoing Agreement is
hereby accepted as of the
date first above written.
THE PRUDENTIAL INSURANCE COMPANY
OF AMERICA
By: ____________________________
Title: Vice President
<PAGE>
Exhibit 10.15
BONUS AND INCENTIVE COMPENSATION POLICY
FOR OFFICERS OF
CEDAR FAIR MANAGEMENT COMPANY
(Recommended by the Compensation Committee and
Approved by the Board of Directors,
November, 1992
And Amended by the Compensation Committee
October, 1994)
BACKGROUND
The stockholders and share equivalent holders
("Officers") of Cedar Fair Management Company (the "Company") are
employees of Cedar Fair, L.P. (the "Partnership") and hold the
same offices in the Partnership as they do in the Company. As a
result, their base salaries, fringe benefits (including health
insurance, provision of automobile as appropriate, etc.),
employer contributions to the Partnership's 401(k) plan and
existing profit-sharing plan are all paid by and are
responsibilities of the Partnership. The Company, on the other
hand, is responsible for and has full discretion to determine and
set bonus and other incentive compensation payable to such
Officers out of fee income and distributions receivable from
serving as managing general partner of the Partnership. The
Company has an agreement with the Partnership for such payments.
For tax and other reasons, all cash dividends, bonuses and
current incentive compensation will be paid on or before December
31 in each year.
Beginning in 1992, the Board of Directors approved two
new forms of deferred compensation to supplement the cash bonuses
paid to Officers of the Company, using a portion of the Company's
earnings as managing general partner of the Partnership. The
Partnership has agreed to accept responsibility for providing
these deferred benefits and will be reimbursed by the Company for
the amounts granted each year.
<PAGE>
FUNDS AVAILABLE
Funds are available for dividends and Officers' bonus,
incentive and deferred compensation from the following sources
(as defined in the Agreement of Limited Partnership):
1) Management fee of .25% of the Partnership's net revenues.
2) .5% of cash distributions declared by the Partnership.
3) Incentive fee of 18.18% of excess distributions declared by
the Partnership.
For purposes of calculating the funds available each
year, the anticipated fourth quarter distribution and any related
incentive fees are included even though the distribution may not
be formally declared until the end of the quarter.
ALLOCATION OF FUNDS AVAILABLE
The total funds available to the Company each year will
be allocated in the following manner:
1) Dividends to stockholders of the Company and cash bonuses to
Officers will be paid prior to December 31 each year in an
aggregate amount not to exceed 150% of the aggregate base
salaries of the stockholders and share equivalent holders of the
Company.
2) If the total funds available exceed 150%, but is equal to or
less than 200% of the aggregate base salaries of this group, this
additional amount will be allocated, in approximately equal
portions, to deferred compensation payable to Officers of the
Company in the following forms (both as hereinafter described:
a) Deferred limited partnership units, and/or
b) Supplemental retirement benefits.
<PAGE>
3) If the total funds available exceed 200% of such aggregate
base salaries, this balance will be allocated to Officers of the
Company and/or to other employees of the Partnership, or their
respective estates, in such manner and amounts as may be
recommended by the Compensation Committee, after consultation
with the Chief Executive Officer, and approved by the Board of
Directors.
CASH BONUSES
The declaration of dividends and the award of cash
bonuses will be based on the success of the Partnership's
operations during the year and on the performance of individual
Officers. The Chief Executive Officer will first determine
weighting factors for each Officer, based on his or her position,
responsibilities and other relevant factors, for purposes of
making an initial allocation of available funds up to 150% of the
aggregate base compensation of the group. The weighting factors
will be 20%, 30%, 40%, or 55% of a participant's base salary.
After using these weighting factors to make an initial
allocation, the CEO will recommend to the Compensation Committee
any adjustments he deems appropriate based upon individual
performance and contributions to the success of the Partnership.
To be eligible to receive a cash bonus hereunder, an
Officer must be employed by the Partnership on the date of
payment of cash bonuses. The Board of Directors may, at its
discretion, approve the payment of bonuses to an Officer's estate
or a former Officer in the event of death, disability, or
retirement of an Officer during the year of payment.
DEFERRED LIMITED PARTNERSHIP UNITS
Deferred units represent the right to receive newly
issued Cedar Fair limited partnership units at specified future
dates if an Officer is still employed by the Partnership at that
time. The dollars allocated to each participant will be based on
individual performance, as recommended by the CEO and approved by
the Compensation Committee of the Board, and will be converted to
<PAGE>
a number of deferred Partnership units based on the NYSE closing
price on the first Monday in December of the year granted.
Thereafter, the deferred units will accrue additional deferred
units on the date of each cash distribution paid by Cedar Fair,
L.P., calculated at the NYSE closing price on that date, and will
also be adjusted for any unit splits or other similar equity
transactions which may occur.
For each participant still employed by the Partnership
or its successor on the first Monday in December, 3 years after
the grant of deferred units, the Partnership will issue new
limited partnership units to the participant in the amount of one-
third of the units accrued from that year's grant, together with
accrued distributions thereon, rounded to the nearest whole unit.
One year later, half of the remaining deferred units, together
with accrued distributions, will be issued to participants, and
one more year later (5 years from date of grant) the remaining
balance, rounded to the nearest whole unit, will be issued to
participants who remain in the Partnership's employ. In the
event of death, total disability (as defined in the Partnership's
Long Term Disability Income Plan), retirement at age 62 or over,
removal of the Company as managing general partner of the
Partnership (unless resulting from reorganization of the
Partnership into corporate form), or a "change in control" of the
Partnership (as defined below), all accrued units for a
participant will become fully vested and will be issued at the
time of such event. Failure to remain an employee of the
Partnership on any vesting date for any other reason will result
in the forfeiture of all unissued deferred units of a
participant.
A "change in control" of the Partnership shall mean a
change in control of a nature that would be required to be
reported in response to Item 6 (e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934.
Without limiting the inclusiveness of the definition in the
preceding sentence, a change in control of the Partnership shall
be deemed to have occurred if:
<PAGE>
(i) any person (other than any employee benefit plan of the
Partnership or any subsidiary of the Partnership or any person
organized, appointed or established pursuant to the terms of any
such benefit plan) is or becomes the beneficial owner of
Partnership units representing at least 51% of the voting power
of the Partnership units.
(ii) there shall be consummated (x) any consolidation or merger
of the Partnership is not the continuing or surviving entity or
pursuant to which Partnership units would be converted into cash,
securities or other property, other than a merger of the
Partnership in which the holders of the Partnership's units
immediately prior to the merger have the same proportionate
ownership of the surviving entity, immediately after the merger,
or (y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Partnership, or
(iii) the holders of the Partnership's units approve any plan
or proposal for the liquidation or dissolution of the
Partnership, except in connection with a reorganization of the
Partnership into corporate form.
With respect to persons subject to Section 16 of the
Securities and Exchange Act of 1934 ("1934 Act"), deferred unit
transactions under this plan are intended to comply with all
applicable conditions of Rule 16b-3 or its successors under the
1934 Act. To the extent any provision of the plan or action by
the Board of Directors fails to so comply, it shall be deemed
null and void, to the extent permitted by law and deemed
advisable by the Board of Directors.
<PAGE>
SUPPLEMENTAL RETIREMENT BENEFITS
Supplemental retirement benefits represent the right to
receive benefits from the Partnership upon retirement at age 62
or over, with a minimum of 20 years' service to the Partnership,
its predecessors and/or successors. Amounts will be allocated
among participants as approved by the Compensation Committee of
the Board, based on a target annual retirement benefit (including
amounts projected to be available from the Partnership's profit
sharing retirement plan) of 57.5% of average base salary
projected for the three years prior to retirement at age 65. The
Compensation Committee may, at its discretion, revise the
assumptions and methodology used in calculating the allocation of
such amounts to participants. Each participant's account will
accrue interest at the prime rate as established from time to
time by the Partnership's lead bank, beginning on December 1 of
the year of grant.
Participants leaving the employ of the Partnership
prior to reaching age 62 or with less than 20 years of service
will forfeit their entire balance. In the event of death, total
disability, retirement at age 62 or over with at least 20 years'
service, or removal of the Company as managing general partner of
the Partnership (unless resulting from reorganization of the
Partnership into corporate form), all amounts accrued will become
immediately and fully vested and payable to participants.
Notwithstanding the foregoing, in the event of a "change in
control" of the Partnership, all amounts accrued will become
fully vested and will be funded in a trust, for the benefit of
the participants when they reach age 62, die, or become totally
disabled, whichever occurs first. At each participant's option,
the accrued balance may be distributed in a lump sum or, if
requested irrevocably in writing at least 12 months prior to
retirement, in a number of future payments over a period not to
exceed 10 years.
<PAGE>
Both deferred units and supplemental retirement
benefits, when awarded, together with all subsequent earnings
accrued thereon, will become general unsecured obligations of the
Partnership to the participant, and the Company shall have no
further right to receive such amounts from the Partnership. Each
participant's rights to receive deferred units and supplemental
retirement benefits is not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance,
attachment or garnishment by the participant's creditors or
beneficiaries.
If a participant dies before receipt of all benefits to
which he or she is entitled under this plan, distribution of the
remaining benefits will be made to such beneficiary as the
participant has designated in writing to the Partnership prior to
death or, in the absence of such designation, to the
participant's estate.
Nothing contained herein shall be construed as a
commitment or agreement on the part of any participant to
continue his or her employment with the Partnership, nor as a
commitment on the part of the Partnership to continue the
employment or rate of compensation of any participant hereunder
for any period.
The Board of Directors reserves the right to modify,
amend or terminate this Policy at any time or from time to time;
provided, however, that no amendment or termination shall
adversely impact the rights of a participant with respect to
amounts previously allocated as provided herein.
<PAGE>
Exhibit 10.20
CREDIT AGREEMENT
dated as of
November 30, 1999
Among
CEDAR FAIR, L. P.
CEDAR FAIR
MAGNUM MANAGEMENT CORPORATION
KNOTT'S BERRY FARM
as Co-Borrowers
MAGNUM MANAGEMENT CORPORATION
as Treasury Manager for the Co-Borrowers
THE LENDING INSTITUTIONS NAMED THEREIN
as Lenders
KEYBANK NATIONAL ASSOCIATION
as Administrative Agent
<PAGE>
TABLE OF CONTENTS
Page
SECTION 1.DEFINITIONS AND TERMS 1
1.1. Certain Defined Terms 1
1.2. Computation of Time Periods 14
1.3. Accounting Terms 14
1.4. Terms Generally 14
SECTION 2.AMOUNT AND TERMS OF LOANS 15
2.1. Commitments for Loans 15
2.2. Pro Rata Borrowings. 15
2.3. Notice of Borrowing 15
2.4. Disbursement of Funds 16
2.5. Minimum Borrowing Amounts. 16
2.6. Notes 16
2.7. Conversions of Loans 16
2.8. Interest 17
2.9. Interest Periods 18
2.10.Increased Costs, Illegality, etc. 19
2.11.Breakage Compensation 21
2.12.Change of Lending Office; Replacement of Lenders 21
SECTION 3.FEES 21
3.1. Facility Fee 21
3.2. Other Fees 22
3.3. Computations of Fees 22
SECTION 4.COMMITMENTS 22
4.1. Voluntary Termination/Reduction of Commitments 22
4.2. Mandatory Termination of Commitments, etc. 23
SECTION 5.PAYMENTS 23
5.1. Voluntary Prepayments 23
5.2. Mandatory Prepayments 24
5.3. Method and Place of Payment 24
5.4. Net Payments 24
SECTION 6.CONDITIONS PRECEDENT 26
6.1. Conditions Precedent at Closing Date 26
6.2. Conditions Precedent to All Loans 27
<PAGE>
SECTION 7.REPRESENTATIONS AND WARRANTIES 28
7.1. Organizational Status, etc. 28
7.2. Subsidiaries 28
7.3. Organizational Power and Authority, etc. 28
7.4. No Violation 28
7.5. Governmental Approvals 28
7.6. Litigation 28
7.7. Use of Proceeds; Margin Regulations 28
7.8. Financial Statements, etc. 29
7.9. No Material Adverse Change. 29
7.10.Tax Returns and Payments 29
7.11.Title to Properties, etc. 29
7.12.Lawful Operations, etc. 30
7.13.Environmental Matters 30
7.14.Compliance with ERISA 30
7.15.Intellectual Property, etc. 31
7.16.Investment Company 31
7.17.Burdensome Contracts; Labor Relations 31
7.18.Existing Indebtedness 31
7.19.Year 2000 Problem 31
7.20.True and Complete Disclosure 31
SECTION 8.AFFIRMATIVE COVENANTS 32
8.1. Reporting Requirements 32
8.2. Books, Records and Inspections 34
8.3. Insurance 34
8.4. Payment of Taxes and Claims 34
8.5. Corporate Franchises 34
8.6. Good Repair 34
8.7. Compliance with Statutes, etc. 35
8.8. Compliance with Environmental Laws 35
8.9. Fiscal Years, Fiscal Quarters 35
8.10.Certain Subsidiaries to Enter into or Join
in Subsidiary Guaranty 36
8.11.Hedge Agreements, etc. 36
8.12.Most Favored Covenant Status, etc 36
8.13.Addition and Deletion of Co-Borrowers 37
8.14.Concentration of Assets 37
8.15.Senior Debt 37
SECTION 9.NEGATIVE COVENANTS 37
9.1. Changes in Business 37
9.2. Consolidation, Merger, Acquisitions, Sale of
Assets, etc. 37
9.3. Liens 39
9.4. Indebtedness 40
9.5. Advances, Investments, Loans and Guaranty
Obligations 41
9.6. Consolidated Debt/Consolidated EBITDA Ratio 42
9.7. Interest Coverage Ratio 42
9.8. Minimum Consolidated Net Worth 42
9.9. Transactions with Affiliates 42
9.10.Limitation on Certain Restrictive Agreements 43
9.11.Plan Terminations, Minimum Funding, etc. 43
SECTION 10.EVENTS OF DEFAULT 43
10.1.Events of Default 43
10.2.Acceleration, etc. 45
10.3.Application of Liquidation Proceeds 45
<PAGE>
SECTION 11.THE ADMINISTRATIVE AGENT 45
11.1.Appointment 45
11.2.Delegation of Duties 46
11.3.Exculpatory Provisions 46
11.4.Reliance by Administrative Agent 46
11.5.Notice of Default 47
11.6.Non-Reliance 47
11.7.Indemnification 47
11.8.The Administrative Agent in Individual Capacity 47
11.9.Successor Administrative Agent 47
SECTION 12.THE TREASURY MANAGER 48
12.1.Appointment 48
12.2.Reliance by Lenders and Administrative Agent upon
Statements, etc. of Treasury Manager 48
12.3.Successor Treasury Manager 48
SECTION 13.OBLIGATIONS OF CO-BORROWERS JOINT AND SEVERAL 48
13.1.Nature of Obligations 48
13.2.Failure of any Co-Borrower to Perform any
Obligations 49
13.3.Additional Undertaking 49
13.4.Joint and Several Obligations Unconditional, etc. 49
13.5.Co-Borrower's Obligations to Remain in Effect;
Restoration 50
13.6.Waiver of Acceptance, etc. 50
13.7.Subrogation 50
13.8.Effect of Stay 50
SECTION 14.MISCELLANEOUS 50
14.1.Payment of Expenses, etc. 50
14.2.Right of Setoff 51
14.3.Notices 51
14.4.Benefit of Agreement 51
14.5.No Waiver: Remedies Cumulative 53
14.6.Payments Pro Rata 53
14.7.Financial Calculations; Computations of Interest
and Fees 53
14.8.Governing Law; Submission to Jurisdiction; Venue;
Waiver of Jury Trial 54
14.9.Counterparts 54
14.10.Effectiveness 54
14.11.Headings Descriptive 54
14.12.Amendment or Waiver 54
14.13.Survival of Indemnities 55
14.14.Domicile of Loans 55
14.15.Confidentiality 56
14.16.Lender Register 56
14.17.General Limitation of Liability 56
14.18.No Duty 57
14.19.Lenders and Agent Not Fiduciary to Co-Borrowers,
etc. 57
14.20.Survival of Representations and Warranties 57
14.21.Limited Liability of Partners of Co-Borrowers
as Such 57
<PAGE>
CREDIT AGREEMENT, dated as of November 30, 1999, among the
following:
(i) CEDAR FAIR, L. P., a Delaware limited
partnership (herein, together with its successors and
assigns, the "Company" or a "Co-Borrower");
(ii) CEDAR FAIR, an Ohio general partnership
(herein, together with its successors and assigns,
"Cedar Fair" or a "Co-Borrower"), which is a Wholly-
Owned Subsidiary of the Company;
(iii) MAGNUM MANAGEMENT CORPORATION, an Ohio
corporation (herein, together with its successors and
assigns, "Magnum Management" or a "Co-Borrower"), which
is a Wholly-Owned Subsidiary of the Company, in (x) its
individual capacity, and (y) as treasury manager for
the Co-Borrowers (in such capacity, together with its
successors and assigns in such capacity, the "Treasury
Manager");
(iv) KNOTT'S BERRY FARM, a California general
partnership (herein, together with its successors and
assigns, "Knott's Berry Farm" or a "Co-Borrower"),
which is a Wholly-Owned Subsidiary of the Company;
(v) each other Additional Co-Borrower which
becomes a party hereto pursuant to section 8.13;
(vi) the lending institutions listed in Annex I
hereto (each a "Lender" and collectively, the
"Lenders"); and
(vii) KEYBANK NATIONAL ASSOCIATION, a national
banking association, as administrative agent (the
"Administrative Agent"):
PRELIMINARY STATEMENTS:
(1) Unless otherwise defined herein, all capitalized terms
used herein and defined in section 1 are used herein as so
defined.
(2) The Co-Borrowers have applied to the Lenders for credit
facilities in the aggregate principal amount of $90,000,000, to
be available and mature within a period of not more than 364
days, in order to provide working capital and funds for other
lawful purposes.
(3) Subject to and upon the terms and conditions set forth
herein, the Lenders are willing to make available to the Co-
Borrowers the credit facilities provided for herein.
<PAGE>
(4) The Co-Borrowers will be jointly and severally liable
for all Borrowings hereunder.
NOW, THEREFORE, it is agreed:
SECTION 1. DEFINITIONS AND TERMS.
1.1. Certain Defined Terms. As used herein, the following
terms shall have the meanings herein specified unless the context
otherwise requires:
"Additional Co-Borrower" shall have the meaning provided in
section 8.13.
"Administrative Agent" shall have the meaning provided in
the first paragraph of this Agreement and shall include any
successor to the Administrative Agent appointed pursuant to
section 11.9.
"Affiliate" shall mean, with respect to any person, any other
person directly or indirectly controlling, controlled by, or
under direct or indirect common control with such person. A
person shall be deemed to control a second person if such first
person possesses, directly or indirectly, the power (i) to vote
10% or more of the securities having ordinary voting power for
the election of directors or managers of such second person or
(ii) to direct or cause the direction of the management and
policies of such second person, whether through the ownership of
voting securities, by contract or otherwise. Notwithstanding the
foregoing, (x) a director, officer or employee of a person shall
not, solely by reason of such status, be considered an Affiliate
of such person; and (y) neither the Administrative Agent nor any
Lender shall in any event be considered an Affiliate of any Co-
Borrower or any other Credit Party or any of their respective
Subsidiaries.
"Agreement" shall mean this Credit Agreement, as the same
may be from time to time further modified, amended and/or
supplemented.
"Applicable Eurodollar Margin" shall have the meaning
provided in section 2.8(g).
"Applicable Facility Fee Rate" shall have the meaning
provided in section 3.1(c).
"Applicable Lending Office" shall mean, with respect to each
Lender, (i) such Lender's Domestic Lending Office in the case of
Borrowings consisting of Prime Rate Loans, and (ii) such Lender's
Eurodollar Lending Office in the case of Borrowings consisting of
Eurodollar Loans.
"Asset Sale" shall mean the sale, transfer or other
disposition (including by means of Sale and Lease-Back
Transaction, and mergers, consolidations, and liquidations of a
corporation, partnership or limited liability company of the
interests therein of any Co-Borrower or any Subsidiary) by any Co-
Borrower or any Subsidiary of any Co-Borrower to any person other
than the Company or any of its Subsidiaries of any of their
respective assets (other than sales, transfers or other
dispositions of inventory and obsolete or excess furniture,
fixtures, equipment or other property, tangible or intangible, in
the ordinary course of business).
"Assignment Agreement" shall mean an Assignment Agreement
substantially in the form of Exhibit D hereto.
"Authorized Officer" shall mean any officer or employee of
any Credit Party designated as such in writing to the
Administrative Agent by such Credit Party.
"Bankruptcy Code" shall have the meaning provided in section
10.1(h).
"Co-Borrower" shall include the Co-Borrowers named herein
who are original signatories hereto and each Additional Co-
Borrower.
"Borrowing" shall mean the incurrence of Loans consisting
of one Type of Loan, by the Co-Borrowers from all of the Lenders
on a pro rata basis on a given date (or resulting from
conversions on a given date), having in the case of Eurodollar
Loans the same Interest Period.
"Business Day" shall mean (i) for all purposes other than as
covered by clause (ii) below, any day excluding Saturday, Sunday
and any day which shall be in the city in which the Payment
Office is located a legal holiday or a day on which banking
institutions are authorized by law or other governmental actions
to close; and (ii) with respect to all notices and determinations
in connection with, and payments of principal and interest on,
Eurodollar Loans, any day which is a Business Day described in
clause (i) and which is also a day for trading by and between
banks in U.S. dollar deposits in the interbank Eurodollar market.
"Capital Lease" as applied to any person shall mean any
lease of any property (whether real, personal or mixed) by that
person as lessee which, in conformity with GAAP, is accounted for
as a capital lease on the balance sheet of that person.
"Capitalized Lease Obligations" shall mean all obligations
under Capital Leases of the Company or any of its Subsidiaries in
each case taken at the amount thereof accounted for as
liabilities identified as "capital lease obligations" (or any
similar words) on a consolidated balance sheet of the Company and
its Subsidiaries prepared in accordance with GAAP.
<PAGE>
"Cash Equivalents" shall mean:
(i) securities issued or directly and fully guaranteed
or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support
thereof) having maturities of not more than one year from
the date of acquisition;
(ii) U.S. dollar denominated time deposits,
certificates of deposit and bankers' acceptances of (x) any
Lender or (y) any bank whose short-term commercial paper
rating from S&P is at least A-1 or the equivalent thereof or
from Moody's is at least P-1 or the equivalent thereof (any
such bank, an "Approved Bank"), in each case with maturities
of not more than one year from the date of acquisition;
(iii) commercial paper issued by any Lender or
Approved Bank or by the parent company of any Lender or
Approved Bank and commercial paper issued by, or guaranteed
by, any industrial or financial company with a short- term
commercial paper rating of at least A-1 or the equivalent
thereof by S&P or at least P-1 or the equivalent thereof by
Moody's, or guaranteed by any industrial company with a long
term unsecured debt rating of at least A or A2, or the
equivalent of each thereof, from S&P or Moody's, as the case
may be, and in each case maturing within 270 days after the
date of acquisition;
(iv) investments in money market funds substantially
all the assets of which are comprised of securities of the
types described in clauses (i) through (iii) above; and
(v) investments in money market funds access to which
is provided as part of "sweep" accounts maintained with a
Lender or an Approved Bank.
"Cedar Fair" shall have the meaning provided in the
introductory paragraph hereof.
"CERCLA" shall mean the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980, as the same
may be amended from time to time, 42 U.S.C. 9601 et seq.
"Change of Control" shall mean and include any of the
following:
(i) during any period of two consecutive calendar
years, individuals who at the beginning of such period
constituted the Managing General Partner's Board of
Directors (together with any new directors whose election by
the Managing General Partner's Board of Directors or whose
nomination for election by the Managing General Partner's
shareholders was approved by a vote of at least two-thirds
of the directors then still in office who either were
directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease
for any reason to constitute a majority of the directors
then in office;
<PAGE>
(ii) any person or group (as such term is defined in
section 13(d)(3) of the 1934 Act), other than the Company,
any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its
Subsidiaries and/or the Current Holder Group, shall acquire,
directly or indirectly, beneficial ownership (within the
meaning of Rule 13d-3 and 13d-5 of the 1934 Act) of more
than 40%, on a fully diluted basis, of the economic or
voting interest in the Company's partnership interests;
(iii) the Current Holder Group shall, for any
reason, cease to have, directly or indirectly, beneficial
ownership (within the meaning of Rule 13d-3 and 13d-5 of the
1934 Act) of at least 50%, on a fully diluted basis, of the
economic or voting interest in the Managing General
Partner's capital stock;
(iv) the holders of partnership interests in the
Company approve a merger or consolidation of the Company
with any other person, other than a merger or consolidation
which would result in the partnership interests of the
Company 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 combined voting power of the
partnership interests or other voting securities of the
Company or such surviving or resulting entity (or parent
corporation) outstanding after such merger or consolidation;
(v) the holders of partnership interests in the
Company approve the removal of Cedar Fair Management Company
as the managing general partner of the Company; and/or
(vi) the holders of partnership interests in the
Company approve a plan of complete liquidation of the
Company or an agreement or agreements for the sale or
disposition by the Company of all or substantially all of
the Company's assets.
"Closing Date" shall mean the date, on or after the
Effective Date, upon which the conditions specified in section
6.1 are satisfied.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and
the rulings issued thereunder. Section references to the Code are
to the Code, as in effect at the Effective Date and any
subsequent provisions of the Code, amendatory thereof,
supplemental thereto or substituted therefor.
<PAGE>
"Commitment" shall mean, with respect to each Lender, the
amount set forth opposite such Lender's name in Annex I as its
"Commitment" as the same may be reduced from time to time, or
terminated, pursuant to section 4.1, 4.2 and/or 10.2, or adjusted
from time to time as a result of assignments to or from such
Lender pursuant to section 14.4.
"Company" shall have the meaning provided in the
introductory paragraph hereof.
"Consolidated Amortization Expense" shall mean, for any
period, all amortization expenses of the Company and its
Subsidiaries, all as determined for the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated Capital Expenditures" shall mean, for any
period, the aggregate of all expenditures (whether paid in cash
or accrued as liabilities and including in all events amounts
expended or capitalized under Capital Leases but excluding any
amount representing capitalized interest) by the Company and its
Subsidiaries during that period that, in conformity with GAAP,
are or are required to be included in the property, plant or
equipment reflected in the consolidated balance sheet of the
Company and its Subsidiaries.
"Consolidated Debt" shall mean the total Indebtedness of the
Company and of each of its Subsidiaries, as determined on a
consolidated basis, which is of the nature described in clauses
(i); (ii); (iv), but only to the extent of outstanding drawings
under letters of credit which have not been reimbursed; (vi);
(vii); and/or (xi), of the definition of the term Indebtedness.
"Consolidated Depreciation Expense" shall mean, for any
period, all depreciation expenses of the Company and its
Subsidiaries, all as determined for the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"Consolidated EBIT" shall mean, for any period, Consolidated
Net Income for such period; plus (A) the sum of the amounts for
such period included in determining such Consolidated Net Income
of (i) Consolidated Interest Expense, (ii) Consolidated Income
Tax Expense, (iii) amortization or write-off of deferred
financing costs, and (iv) extraordinary non-cash losses and
charges and other non-recurring non-cash losses and charges; less
(B) gains on sales of assets (excluding sales in the ordinary
course of business) and other extraordinary gains and non-
recurring non-cash gains; all as determined for the Company and
its Subsidiaries on a consolidated basis in accordance with GAAP.
<PAGE>
"Consolidated EBITDA" shall mean, for any period, the sum of
the amounts for such period of (i) Consolidated EBIT, (ii)
Consolidated Depreciation Expense, and (iii) Consolidated
Amortization Expense, all as determined for the Company and its
Subsidiaries on a consolidated basis in accordance with GAAP;
provided that Consolidated EBITDA for any period shall (x)
include the appropriate financial items for any person or
business unit which has been acquired by the Company for any
portion of such period prior to the date of acquisition, and (y)
exclude the appropriate financial items for any person or
business unit which has been disposed of by the Company, for the
portion of such period prior to the date of disposition.
"Consolidated EBITDA/Interest Ratio" shall mean, for any
Testing Period, the ratio of (i) Consolidated EBITDA (without
giving effect to the proviso to the definition of Consolidated
EBITDA) for such Testing Period, to (ii) Consolidated Interest
Expense for such Testing Period.
"Consolidated Income Tax Expense" shall mean, for any
period, all provisions for taxes based on the net income of the
Company or any of its Subsidiaries (including, without
limitation, any additions to such taxes, and any penalties and
interest with respect thereto), and all franchise taxes of the
Company and its Subsidiaries, all as determined for the Company
and its Subsidiaries on a consolidated basis in accordance with
GAAP.
"Consolidated Interest Expense" shall mean, for any period,
total interest expense (including that which is capitalized and
that which is attributable to Capital Leases, in accordance with
GAAP) of the Company and its Subsidiaries on a consolidated basis
with respect to all outstanding Indebtedness of the Company and
its Subsidiaries including, without limitation, all commissions,
discounts and other fees and charges owed with respect to letters
of credit and net costs under Hedge Agreements, but excluding,
however, any amortization of deferred financing costs, all as
determined in accordance with GAAP.
"Consolidated Net Income" shall mean for any period, the
net income (or loss), without deduction for minority interests,
of the Company and its Subsidiaries on a consolidated basis for
such period taken as a single accounting period determined in
conformity with GAAP, provided that there shall be excluded
therefrom (i) the income, (or loss) of any entity (other than
Subsidiaries of the Company) in which the Company or any of its
Subsidiaries has a joint interest, except to the extent of the
amount of dividends or other distributions actually paid to the
Company or any of its Subsidiaries during such period, (ii) the
income (or loss) of any entity accrued prior to the date it
becomes a Subsidiary of the Company or is merged into or
consolidated with the Company or any of its Subsidiaries or on
which its assets are acquired by the Company or any of its
Subsidiaries, and (iii) the income of any Subsidiary of the
Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that
income is not at the time permitted by operation of the terms of
its charter or any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
that Subsidiary.
<PAGE>
"Consolidated Net Worth" shall mean at any time for the
determination thereof all amounts which, in conformity with GAAP,
would be included under the caption "total partners' equity" (or
any like caption) on a consolidated balance sheet of the Company
and its Subsidiaries as at such date.
"Consolidated Total Capital" shall mean at any time of
determination the sum of (i) Consolidated Debt at such time and
(ii) Consolidated Net Worth as of the most recent fiscal period
ended on or prior to the time of determination for which
financial statements have been delivered to the Lenders
hereunder.
"Credit Documents" shall mean this Agreement, the Notes, the
Subsidiary Guaranty and any other agreement or instrument entered
into by any Credit Party with, or for the benefit of, the
Administrative Agent or the Lenders, pursuant to the requirements
of this Agreement.
"Credit Party" shall mean the Company, the Managing General
Partner and each of the Company's Subsidiaries which is a party
to any Credit Document.
"Current Holder Group" shall mean (i) those persons who are
officers and directors of the Company and/or the Managing General
Partner at the Effective Date; (ii) the spouses, heirs, legatees,
descendants and blood relatives to the third degree of
consanguinity of any such person; (iii) the executors and
administrators of the estate of any such person, and any court
appointed guardian of any such person; and (iv) any trust for the
benefit of any such person referred to in the foregoing clauses
(i) and (ii) or any other persons, 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.
"Default" shall mean any event, act or condition which with
notice or lapse of time, or both, would constitute an Event of
Default.
"Defaulting Lender" shall mean any Lender with, respect to
which a Lender Default is in effect.
"Determination of Taxability" shall mean any of the
following:
(i) the Company shall elect, for Federal income tax
purposes, to be treated as an association taxable as a
corporation under Subchapter C of the Code;
<PAGE>
(ii) the Company shall have received from the Internal
Revenue Service any written notice or other communication
which questions the status or right of the Company to be
treated as a partnership under the Code, and not as an
association taxable as a corporation under Subchapter C of
the Code, and within 60 days following the receipt of any
such notice or other communication the Company has not
obtained, and provided to the Administrative Agent a copy
of, a written confirmation from the Internal Revenue Service
that such notice or other communication is withdrawn and
further confirming that the Internal Revenue Service
recognizes that the Company is entitled to be treated as a
partnership under the Code, and not as an association
taxable as a corporation under Subchapter C of the Code; or
(iii) any other event or circumstance shall occur
or exist which, in the reasonable opinion of the
Administrative Agent, draws into question the status or
right of the Company to be treated as a partnership under
the Code, and not as an association taxable as a corporation
under Subchapter C of the Code, and within 30 days following
the receipt by the Company of a written request therefor
from the Administrative Agent, the Company shall have failed
to deliver to the Administrative Agent a written opinion,
reasonably satisfactory in form, scope and substance to the
Administrative Agent, of Squire Sanders & Dempsey, or other
nationally recognized independent tax counsel, to the effect
that in the opinion of such counsel the Company should be
treated for Federal income tax purposes as a partnership,
and not as an association taxable as a corporation under
Subchapter C of the Code, and covering such other matters
related thereto as the Administrative Agent may reasonably
request.
"Dollars", "U.S. dollars", "dollars" and the sign "$" each
means lawful money of the United States.
"Domestic Lending Office" shall mean, with respect to any
Lender, the office of such Lender specified as its Domestic
Lending Office in Annex I or in the Assignment Agreement pursuant
to which it became a Lender, or such other office of such Lender
as such Lender may from time to time specify to the Treasury
Manager and the Administrative Agent.
"Effective Date" shall have the meaning provided in section
14.10.
"Election to Participate" shall mean an Election to
Participate substantially in the form attached hereto as Exhibit F.
"Election to Terminate" shall mean an Election to
Participate substantially in the form attached hereto as Exhibit G.
<PAGE>
"Eligible Transferee" shall mean and include a commercial
bank, financial institution or other "accredited investor" (as
defined in SEC Regulation D), in each case which (i) is not
disapproved in writing by the Treasury Manager in a notice given
to a requesting Lender and the Administrative Agent, specifying
the reasons for such disapproval, within five Business Days
following the giving of notice to the Treasury Manager of the
identity of any proposed transferee (any such disapproval by the
Treasury Manager must be reasonable), provided that the Treasury
Manager shall not be entitled to exercise the foregoing right of
disapproval if and so long as (x) any Event of Default shall have
occurred and be continuing, or (y) any of the financial covenants
contained in this Agreement shall have been waived or modified
following a deterioration in the financial condition or results
of operations of the Company and its Subsidiaries; and (ii) is
not a direct competitor of the Company or engaged in the same or
similar business as the Company, or an Affiliate of any such
competitor.
"Environmental Claims" shall mean any and all
administrative, regulatory or judicial actions, suits, demands,
demand letters, claims, liens, notices of non-compliance or
violation, investigations or proceedings relating in any way to
any Environmental Law or any permit issued under any such law
(hereafter "Claims"), including, without limitation, (a) any and
all Claims by governmental or regulatory authorities for
enforcement, cleanup, removal, response, remedial or other
actions or damages pursuant to any applicable Environmental Law,
and (b) any and all Claims by any third party seeking damages,
contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the storage, treatment or
Release (as defined in CERCLA) of any Hazardous Materials or
arising from alleged injury or threat of injury to health, safety
or the environment.
"Environmental Law" shall mean any applicable Federal,
state, foreign or local statute, law, rule, regulation,
ordinance, code, binding and enforceable guideline, binding and
enforceable written policy and rule of common law now or
hereafter in effect and in each case as amended, and any binding
and enforceable judicial or administrative interpretation
thereof, including any judicial or administrative order, consent,
decree or judgment issued to or rendered against the Company or
any of its Subsidiaries relating to the environment, employee
health and safety or Hazardous Materials, including, without
limitation, CERCLA; RCRA; the Federal Water Pollution Control
Act, 33 U.S.C. 2601 et seq.; the Clean Air Act, 42 U.S.C.
7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. 3803 et
seq.; the Oil Pollution Act of 1990, 33 U.S.C. 2701 et seq.;
the Emergency Planning and the Community Right-to-Know Act of
1986, 42 U.S.C. 11001 et seq., the Hazardous Material
Transportation Act, 49 U.S.C. 1801 et seq. and the Occupational
Safety and Health Act, 29 U.S.C. 651 et seq. (to the extent it
regulates occupational exposure to Hazardous Materials); and any
state and local or foreign counterparts or equivalents, in each
case as amended from time to time.
"ERISA" shall mean the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder. Section references to
ERISA are to ERISA, as in effect at the Effective Date and any
subsequent provisions of ERISA, amendatory thereof, supplemental
thereto or substituted therefor.
<PAGE>
"ERISA Affiliate" shall mean each person (as defined in
section 3(9) of ERISA) which together with the Company or a
Subsidiary of the Company would be deemed to be a "single
employer" (i) within the meaning of section 414(b),(c), (m) or
(o) of the Code or (ii) as a result of the Company or a
Subsidiary of the Company being or having been a general partner
of such person.
"Eurodollar Lending Office" shall mean, with respect to any
Lender, the office of such Lender specified as its Eurodollar
Lending Office in Annex I or in the Assignment Agreement pursuant
to which it became a Lender, or such other office or offices for
Eurodollar Loans of such Lender as such Lender may from time to
time specify to the Treasury Manager and the Administrative
Agent.
"Eurodollar Loans" shall mean each Loan bearing interest at
the rates provided in section 2.8(b).
"Eurodollar Rate" shall mean with respect to each Interest
Period for a Eurodollar Loan, (A) either (i) the rate per annum
for deposits in Dollars of amounts in same day funds comparable
to the outstanding principal amount of the Eurodollar Loan for
which an interest rate is then being determined for a maturity
most nearly comparable to such Interest Period which appears on
page 3750 of the Dow Jones Telerate Screen as of 11:00 A.M.
(local time at the Notice Office) on the date which is two
Business Days prior to the commencement of such Interest Period,
or (ii) if such a rate does not appear on such page, an interest
rate per annum equal to the average (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such average
is not such a multiple) of the rate per annum at which deposits
in Dollars are offered to each of the Reference Banks by prime
banks in the London interbank Eurodollar market for deposits of
amounts in Dollars in same day funds comparable to the
outstanding principal amount of the Eurodollar Loan for which an
interest rate is then being determined with maturities comparable
to the Interest Period to be applicable to such Eurodollar Loan,
determined as of 11:00 A.M. (London time) on the date which is
two Business Days prior to the commencement of such Interest
Period, in each case divided (and rounded upward to the nearest
whole multiple of 1/16th of 1%) by (B) a percentage equal to 100%
minus the then stated maximum rate of all reserve requirements
(including, without limitation, any marginal, emergency,
supplemental, special or other reserves and without benefit of
credits for proration, exceptions or offsets which may be
available from time to time) applicable to any member bank of the
Federal Reserve System in respect of Eurocurrency liabilities as
defined in Regulation D (or any successor category of liabilities
under Regulation D).
"Event of Default" shall have the meaning provided in
section 10.1.
"Existing Indebtedness" shall have the meaning provided in
section 7.18.
"Existing Indebtedness Agreements" shall have the meaning
provided in section 7.18.
<PAGE>
"Facility Fee" shall have the meaning provided in section
3.1(a).
"Federal Funds Effective Rate" shall mean, for any period, a
fluctuating interest rate equal for each day during such period
to 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 for such day (or, if such
day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of
the quotations for such day on such transactions received by the
Administrative Agent from three Federal Funds brokers of
recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to, or
referred to in, section 3.
"Foreign Subsidiary" shall mean any Subsidiary (i) which is
not incorporated in the United States and substantially all of
whose assets and properties are located, or substantially all of
whose business is carried on, outside the United States, or (ii)
substantially all of whose assets consist of Subsidiaries that
are Foreign Subsidiaries as defined in clause (i) of this
definition.
"GAAP" shall mean generally accepted accounting principles
in the United States of America as in effect from time to time;
it being understood and agreed that determinations in accordance
with GAAP for purposes of section 9, including defined terms as
used therein, are subject (to the extent provided therein) to
section 14.7(a).
"Guaranty Obligations" shall mean as to any person (without
duplication) any obligation of such person guaranteeing any
Indebtedness ("primary Indebtedness") of any other person (the
"primary obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of such person,
whether or not contingent, (a) to purchase any such primary
Indebtedness or any property constituting direct or indirect
security therefor, (b) to advance or supply funds (i) for the
purchase or payment of any such primary Indebtedness or (ii) to
maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary
obligor, (c) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such
primary Indebtedness of the ability of the primary obligor to
make payment of such primary Indebtedness, or (d) otherwise to
assure or hold harmless the owner of such primary Indebtedness
against loss in respect thereof, provided, however, that the term
Guaranty Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The
amount of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the primary
Indebtedness in respect of which such Guaranty Obligation is made
or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such person is
required to perform thereunder) as determined by such person in
good faith.
<PAGE>
"Hedge Agreement" shall mean (i) any interest rate swap
agreement, any interest rate cap agreement, any interest rate
collar agreement or other similar agreement or arrangement
designed to protect against fluctuations in interest rates, and
(ii) any currency swap agreement, forward currency purchase
agreement or similar agreement or arrangement designed to protect
against fluctuations in currency exchange rates.
"Hazardous Materials" shall mean (i) any petrochemical or
petroleum products, radioactive materials, asbestos in any form
that is or could become friable, urea formaldehyde foam
insulation, transformers or other equipment that contain
dielectric fluid containing levels of polychlorinated biphenyls,
and radon gas; and (ii) any chemicals, materials or substances
defined as or included in the definition of "hazardous
substances", "hazardous wastes", "hazardous materials",
"restricted hazardous materials", "extremely hazardous wastes",
"restrictive hazardous wastes", "toxic substances", "toxic
pollutants", "contaminants" or "pollutants", or words of similar
meaning and regulatory effect, under any applicable Environmental
Law.
"Indebtedness" of any person shall mean without duplication:
(i) all indebtedness of such person for borrowed
money,
(ii) all bonds, notes, debentures and similar debt
securities of such person,
(iii) the deferred purchase price of capital assets
or services which in accordance with GAAP would be shown on
the liability side of the balance sheet of such person,
(iv) the face amount of all letters of credit issued
for the account of such person and, without duplication, all
drafts drawn thereunder,
(v) all Indebtedness of a second person secured by any
Lien on any property owned by such first person, whether or
not such indebtedness has been assumed,
(vi) all Capitalized Lease Obligations of such person,
(vii) the present value, determined on the basis of
the implicit interest rate, of all basic rental obligations
under all "synthetic" leases (i.e. leases accounted for by
the lessee as operating leases under which the lessee is the
"owner" of the leased property for Federal income tax
purposes,
<PAGE>
(viii) all obligations of such person to pay a
specified purchase price for goods or services whether or
not delivered or accepted, i.e., take-or-pay and similar
obligations,
(ix) all net obligations of such person under Hedge
Agreements and
(x) the full outstanding balance of trade receivables,
notes or other instruments sold with full or limited
recourse, other than solely for purposes of collection of
delinquent accounts, and
(xi) all Guaranty Obligations of such person,
provided that neither trade payables and accrued expenses, in
each case arising in the ordinary course of business, nor
obligations in respect of insurance policies or performance or
surety bonds which themselves are not guarantees of Indebtedness
(nor drafts, acceptances or similar instruments evidencing the
same nor obligations in respect of letters of credit supporting
the payment of the same), shall constitute Indebtedness.
"Intercreditor Agreement" shall have the meaning provided in
section 6.1(g).
"Interest Coverage Ratio" shall mean, for any Testing
Period, the ratio of (i) Consolidated EBIT to (ii) Consolidated
Interest Expense, in each case on a consolidated basis for the
Company and its Subsidiaries for such Testing Period.
"Interest Period" with respect to any Eurodollar Loan shall
mean the interest period applicable thereto, as determined
pursuant to section 2.9.
"KeyBank" shall mean KeyBank National Association, a
national banking association, together with its successors and
assigns.
"Knott's Berry Farm" shall have the meaning provided in the
introductory paragraph hereof.
"Leaseholds" of any person means all the right, title and
interest of such person as lessee or licensee in, to and under
leases or licenses of land, improvements and/or fixtures.
"Lender" shall have the meaning provided in the first
paragraph of this Agreement.
<PAGE>
"Lender Default" shall mean (i) the refusal (which has not
been retracted) of a Lender in violation of the requirements of
this Agreement to make available its portion of any incurrence of
Loans or (ii) a Lender having notified the Administrative Agent
and/or the Treasury Manager that it does not intend to comply
with the obligations under section 2.1, in the case of either (i)
or (ii) as a result of the appointment of a receiver or
conservator with respect to such Lender at the direction or
request of any regulatory agency or authority.
"Lender Register" shall have the meaning provided in section
14.16.
"Lien" shall mean any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including any agreement
to give any of the foregoing, any conditional sale or other title
retention agreement or any lease in the nature thereof).
"Loan" shall have the meaning provided in section 2.1.
"Managing General Partner" shall mean Cedar Fair Management
Company, an Ohio corporation, and its successors and assigns.
"Magnum Management" shall have the meaning provided in the
introductory paragraph hereof.
"Margin Stock" shall have the meaning provided in Regulation U.
"Material Adverse Effect" shall mean a material adverse
effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of,
when used with reference to the Company or any of its
Subsidiaries, the Company and its Subsidiaries, taken as a whole,
or when used with reference to any other person, such person and
its Subsidiaries, taken as a whole, as the case may be.
"Material Subsidiary" shall mean, at any time, with
reference to any person, any Subsidiary of such person (i) that
has assets at such time comprising 5% or more of the consolidated
assets of such person and its Subsidiaries; or (ii) whose
operations in the current fiscal year are expected to, or whose
operations in the most recent fiscal year did, represent more
than 5% of Consolidated EBITDA of such person and its
Subsidiaries for such fiscal year.
"Maturity Date" shall mean November 28, 2000, or such
earlier date on which the Total Commitment is terminated in
accordance with the provisions of this Agreement.
"Minimum Borrowing Amount" shall mean (i) for Prime Rate
Loans, $500,000, with minimum increments thereafter of $100,000,
or (ii) Eurodollar Loans, $2,000,000, with minimum increments
thereafter of $1,000,000.
"Minimum Consolidated Net Worth" shall mean, at any date of
determination, the amount determined in accordance with the
following provisions:
<PAGE>
(i) 90% of the actual Consolidated Net Worth of the
Company, as reflected in its annual audited consolidated
financial statements for its fiscal year ended December 31,
1997, except that in the case of any date of determination
which is made with reference to the end of the Company's
first or second fiscal quarter in any fiscal year, such
percentage shall be 60% and 70%, respectively;
(ii) plus an amount equal to 100% of the increase in
Consolidated Net Worth during the period from the date of
such financial statements to the date of determination which
is attributable to the issuance of equity by the Company or
any of its Subsidiaries to any person other than the Company
and its Wholly-Owned Subsidiaries, in connection with any
acquisition transaction or public or private offering, other
than any sale or issuance to management or employees
pursuant to employee benefit plans of general application;
(iii) plus an amount equal to 100% of the increase
in Consolidated Net Worth attributable to the exchange or
conversion of any Indebtedness of the Company for equity
interests in the Company or any of its Subsidiaries during
the period from the date of such financial statements to the
date of determination.
"Moody's" shall mean Moody's Investors Service, Inc. and its
successors.
"Multiemployer Plan" shall mean a multiemployer plan, as
defined in section 4001(a)(3) of ERISA to which the Company or
any ERISA Affiliate is making or accruing an obligation to make
contributions or has within any of the preceding three plan years
made or accrued an obligation to make contributions.
"Multiple Employer Plan" shall mean an employee benefit
plan, other than a Multiemployer Plan, to which the Company or
any ERISA Affiliate, and one or more employers other than the
Company or an ERISA Affiliate, is making or accruing an
obligation to make contributions or, in the event that any such
plan has been terminated, to which the Company or an ERISA
Affiliate made or accrued an obligation to make contributions
during any of the five plan years preceding the date of
termination of such plan.
"1934 Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Non-Defaulting Lender" shall mean each Lender other than a
Defaulting Lender.
"Note" shall have the meaning provided in section 2.6(a).
"Notice of Borrowing" shall have the meaning provided in
section 2.3(a).
"Notice of Conversion" shall have the meaning provided in
section 2.7.
<PAGE>
"Notice Office" shall mean the office of the Administrative
Agent at Key Center, 127 Public Square, Cleveland, Ohio 44114,
Attention: Large Corporate Group (facsimile: (216) 689-4981), or
such other office, located in a city in the United States Eastern
Time Zone, as the Administrative Agent may designate to the
Treasury Manager from time to time.
"Obligations" shall mean all amounts, direct or indirect,
contingent or absolute, of every type or description, and at any
time existing, owing by any or all Co-Borrowers or any other
Credit Party to the Administrative Agent or any Lender pursuant
to the terms of this Agreement or any other Credit Document.
"Payment Office" shall mean the office of the Administrative
Agent at Key Center, 127 Public Square, Cleveland, Ohio 44114,
Attention: Large Corporate Group (telephone: (216) 689-4228;
facsimile: (216) 689-4981), or such other office, located in a
city in the United States Eastern Time Zone, as the
Administrative Agent may designate to the Treasury Manager from
time to time.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Section 4002 of ERISA, or any successor
thereto.
"Permitted Acquisition" shall mean and include (i) any
acquisition on a going concern basis (whether by purchase, lease
or otherwise) of a facility and/or business operated by a person
who is not a Subsidiary of the Company, and (ii) acquisitions of
a majority (or more) of the outstanding equity or other similar
interests in any such person (whether by merger, stock purchase
or otherwise); provided, that no such transaction shall be
considered a Permitted Acquisition if:
(A) such transaction is actively opposed by the Board
of Directors (or similar governing body) of the selling
person or the person whose equity interests are to be
acquired, unless all of the Lenders consent to such
transaction;
(B) the aggregate consideration for such transaction
(including the principal amount of any assumed Indebtedness
and (without duplication) any Indebtedness of any acquired
person or persons) would exceed $30,000,000, unless the
Required Lenders consent to such transaction;
(C) the cumulative aggregate consideration for such
transaction and all other Permitted Acquisitions effected by
the Company and its Subsidiaries after September 30, 1997
(including the principal amount of any assumed Indebtedness
and (without duplication) any Indebtedness of any acquired
person or persons), exclusive of the consideration for the
acquisition of Knott's Berry Farm, would exceed $50,000,000,
unless the Required Lenders consent to such transaction; or
<PAGE>
(D) such acquisition involves the Company and its
Subsidiaries in a business which is not similar or related
to the businesses engaged in by the Company and its
Subsidiaries on the Effective Date.
Notwithstanding the foregoing, the term Permitted Acquisition
does not include any loans, advances or investments (including
investments in joint ventures) otherwise permitted pursuant to
section 9.5.
"Permitted Liens" shall mean Liens permitted by section 9.3.
"person" shall mean any individual, partnership, joint
venture, firm, corporation, limited liability company,
association, trust or other enterprise or any government or
political subdivision or any agency, department or
instrumentality thereof.
"Plan" shall mean any multiemployer or single-employer plan
as defined in section 4001 of ERISA, which is maintained or
contributed to by (or to which there is an obligation to
contribute by) the Company or a Subsidiary of the Company or an
ERISA Affiliate, and each such plan for the five year period
immediately following the latest date on which the Company, or a
Subsidiary of the Company or an ERISA Affiliate maintained,
contributed to or had an obligation to contribute to such plan.
"Prime Rate" shall mean, for any period, a fluctuating
interest rate per annum as shall be in effect from time to time
which rate per annum shall at all times be equal to the greater
of (i) the rate of interest established by the Administrative
Agent at its principal office, from time to time, as its prime
rate, whether or not publicly announced, which interest rate may
or may not be the lowest rate charged by it for commercial loans
or other extensions of credit; and (ii) the Federal Funds
Effective Rate in effect from time to time plus 1/2 of 1% per
annum.
"Prime Rate Loan" shall mean each Loan bearing interest at
the rate provided in section 2.8(a).
"Prohibited Transaction" shall mean a transaction with
respect to a Plan that is prohibited under section 4975 of the
Code or section 406 of ERISA and not exempt under section 4975 of
the Code or section 408 of ERISA.
"RCRA" shall mean the Resource Conservation and Recovery
Act, as the same may be amended from time to time, 42 U.S.C.
6901 et seq.
"Real Property" of any person shall mean all of the right,
title and interest of such person in and to land, improvements
and fixtures, including Leaseholds.
<PAGE>
"Reference Banks" shall mean (i) KeyBank, National City
Bank, and Bank One, Michigan, and (ii) any other Lender or
Lenders selected as a Reference Bank by the Administrative Agent
and the Required Lenders, provided, that if any of such Reference
Banks is no longer a Lender, such other Lender or Lenders as may
be selected by the Administrative Agent acting on instructions
from the Required Lenders.
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof establishing
reserve requirements.
"Regulation U" shall mean Regulation U of the Board of
Governors of the Federal Reserve System as from time to time in
effect and any successor to all or a portion thereof establishing
margin requirements.
"Reportable Event" shall mean an event described in section
4043(c) of ERISA with respect to a Plan other than those events
as to which the 30-day notice period is waived under subsection
.13, .14, .16, .18, .19 or .20 of PBGC Regulation section 2615.
"Required Lenders" shall mean Non-Defaulting Lenders whose
outstanding Loans and Unutilized Commitments constitute at least
66+2/3% of the sum of the total outstanding Loans and Unutilized
Commitments of Non-Defaulting Lenders (provided that, for
purposes hereof, neither the Company, nor any of its Affiliates,
shall be included in (i) the Lenders holding such amount of the
Loans or having such amount of the Unutilized Commitments, or
(ii) determining the aggregate unpaid principal amount of the
Loans or Unutilized Commitments).
"Sale and Lease-Back Transaction" shall mean any arrangement
with any person providing for the leasing by the Company or any
Subsidiary of the Company of any property (except for temporary
leases for a term, including any renewal thereof, of not more
than one year and except for leases between the Company and a
Subsidiary or between Subsidiaries), which property has been or
is to be sold or transferred by the Company or such Subsidiary to
such person.
"S&P" shall mean Standard & Poor's Ratings Group, a division
of McGraw Hill, Inc., and its successors.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SEC Regulation D" shall mean Regulation D as promulgated
under the Securities Act of 1933, as amended, as the same may be
in effect from time to time.
"Section 5.4(b)(ii) Certificate" shall have the meaning
provided in section 5.4(b)(ii).
<PAGE>
"Subsidiary" of any person shall mean and include (i) any
corporation more than 50% of whose stock of any class or classes
having by the terms thereof ordinary voting power to elect a
majority of the directors of such corporation (irrespective of
whether or not at the time stock of any class or classes of such
corporation shall have or might have voting power by reason of
the happening of any contingency) is at the time owned by such
person directly or indirectly through Subsidiaries and (ii) any
partnership, association, joint venture or other entity in which
such person directly or indirectly through Subsidiaries, has more
than a 50% equity interest at the time. Unless otherwise
expressly provided, all references herein to "Subsidiary" shall
mean a Subsidiary of the Company.
"Subsidiary Guarantor" shall mean any Subsidiary which is a
party to the Subsidiary Guaranty.
"Subsidiary Guaranty" shall have the meaning provided in
section 6.1(c).
"Subordinated Indebtedness" shall mean any Indebtedness
which has been subordinated to the Obligations in such manner and
to such extent as the Administrative Agent (acting on
instructions from the Required Lenders) may require.
"Taxes" shall have the meaning provided in section 5.4.
"Testing Period" shall mean for any determination a single
period consisting of the four consecutive fiscal quarters of the
Company then last ended (whether or not such quarters are all
within the same fiscal year).
"Total Commitment" shall mean the sum of the Commitments of
the Lenders.
"Treasury Manager" shall have the meaning provided in the
introductory paragraph hereof.
"Type" shall mean any type of Loan determined with respect
to the interest option applicable thereto, i.e., a Prime Rate
Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code.
"Unfunded Current Liability" of any Plan shall mean the
amount, if any, by which the actuarial present value of the
accumulated plan benefits under the Plan as of the close of its
most recent plan year exceeds the fair market value of the assets
allocable thereto, each determined in accordance with Statement
of Financial Accounting Standards No. 87, based upon the
actuarial assumptions used by the Plan's actuary in the most
recent annual valuation of the Plan.
"United States" and "U.S." each means United States of
America.
<PAGE>
"Unutilized Commitment" for any Lender at any time shall
mean the excess of (i) such Lender's Commitment at such time
over (ii) the principal amount of Loans made by such Lender and
outstanding at such time.
"Unutilized Total Commitment" shall mean, at any time, the
excess of (i) the Total Commitment at such time over (ii) the
aggregate principal amount of all Loans outstanding at such
time.
"Value" shall mean, with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to the
greater of (i) the net proceeds of the sale or transfer of the
property leased pursuant to such Sale and Lease-Back Transaction
or (ii) the fair value in the opinion of the Company, acting in
good faith, of such property at the time of entering into such
Sale and Lease-Back Transaction.
"Wholly-Owned Subsidiary" shall mean each Subsidiary of the
Company at least 95% of whose capital stock, equity interests and
partnership interests, other than director's qualifying shares or
similar interests, are owned directly or indirectly by the
Company.
"Written", "written" or "in writing" shall mean any form of
written communication or a communication by means of telex,
facsimile transmission, telegraph or cable.
1.2. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and
the words "to" and "until" each means "to but excluding".
1.3. Accounting Terms. Except as otherwise specifically
provided herein, all terms of an accounting or financial nature
shall be construed in accordance with GAAP, as in effect from
time to time; provided that, if the Treasury Manager notifies the
Administrative Agent that the Treasury Manager requests an
amendment to any provision of section 8 or 9 hereof to eliminate
the effect of any change occurring after the Effective Date in
GAAP or in the application thereof to such provision (or if the
Administrative Agent notifies the Treasury Manager that the
Required Lenders request an amendment to any such provision
hereof for such purposes), 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 with
the requirements of this Agreement.
<PAGE>
1.4. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms.
The words "include", "includes" and "including" shall be deemed
to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as
the word "shall". Unless the context requires otherwise, (a) any
definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such
agreement, instrument or other document as from time to time
amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set
forth herein), (b) any reference herein to any person shall be
construed to include such person's successors and assigns, (c)
the words "herein", "hereof" and "hereunder", and words of
similar import, shall be construed to refer to this Agreement in
its entirety and not to any particular provision hereof, (d) all
references herein to sections, Annexes and Exhibits shall be
construed to refer to sections of, and Annexes and Exhibits to,
this Agreement, and (e) the words "asset" and "property" shall be
construed to have the same meaning and effect and to refer to any
and all real property, tangible and intangible assets and
properties, including cash, securities, accounts and contract
rights, and interests in any of the foregoing.
SECTION 2. AMOUNT AND TERMS OF LOANS.
2.1. Commitments for Loans. Subject to and upon the terms
and conditions herein set forth, each Lender severally agrees to
make a loan or loans (each a "Loan" and, collectively, the
"Loans") to the Co-Borrowers, which Loans shall be drawn in
accordance with the following provisions: (i) Loans may be made
at any time and from time to time on and after the Closing Date
and prior to the Maturity Date; (ii) Loans shall be made only in
U.S. Dollars; (iii) except as otherwise provided, Loans may, at
the option of the Treasury Manager (acting on behalf of all Co-
Borrowers), be incurred and maintained as, or converted into,
Loans which are either Prime Rate Loans or Eurodollar Loans,
provided that all Loans made as part of the same Borrowing
shall, unless otherwise specifically provided herein, consist of
Loans of the same Type; (iv) Loans may be repaid or prepaid and
reborrowed in accordance with the provisions hereof; and (v) the
aggregate principal amount of Loans made by any Lender which are
outstanding at any time shall not exceed such Lender's Commitment
in effect at such time.
2.2. Pro Rata Borrowings. All Borrowings shall be made by
the Lenders pro rata on the basis of their respective
Commitments. It is understood that no Lender shall be responsible
for any default by any other Lender in its obligation to make
Loans hereunder and that each Lender shall be obligated to make
the Loans provided to be made by it hereunder, regardless of the
failure of any other Lender to fulfill its Commitment hereunder.
2.3. Notice of Borrowing. (a) Whenever the Co-Borrowers
desire to incur Loans, the Treasury Manager (acting on behalf of
all Co-Borrowers) shall give the Administrative Agent at its
Notice Office,
<PAGE>
(A) Borrowings of Eurodollar Loans: in the case of
any Borrowing of Eurodollar Loans to be made hereunder,
prior to 11:00 A.M. (local time at its Notice Office), at
least three Business Days' prior written or telephonic
notice thereof (in the case of telephonic notice, promptly
confirmed in writing if so requested by the Administrative
Agent), or
(B) Borrowings of Prime Rate Loans: in the case of
any Borrowing of Prime Rate Loans to be made hereunder,
prior to 11:00 A.M. (local time at its Notice Office) on the
proposed date thereof written or telephonic notice thereof
(in the case of telephonic notice, promptly confirmed in
writing if so requested by the Administrative Agent), or
Each such notice (each such notice, a "Notice of Borrowing")
shall (if requested by the Administrative Agent to be confirmed
in writing), be substantially in the form of Exhibit B-1, and in
any event shall be irrevocable and shall specify: (i) the
aggregate principal amount of the Loans to be made pursuant to
such Borrowing; (ii) the date of the Borrowing (which shall be a
Business Day); (iii) whether the Borrowing shall consist of Prime
Rate Loans or Eurodollar Loans; and (iv) if the requested
Borrowing consists of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall
promptly, and in any event on the same day it receives any Notice
of Borrowing, give each Lender written notice (or telephonic
notice promptly confirmed in writing) of each proposed Borrowing,
of such Lender's proportionate share thereof and of the other
matters covered by the Notice of Borrowing relating thereto.
(b Without in any way limiting the obligation of the
Treasury Manager to confirm in writing any telephonic notice
permitted to be given hereunder, the Administrative Agent may act
prior to receipt of written confirmation without liability upon
the basis of such telephonic notice believed by the
Administrative Agent in good faith to be from an Authorized
Officer of the Treasury Manager entitled to give telephonic
notices under this Agreement on behalf of the Co-Borrowers. In
each such case, the Administrative Agent's record of the terms of
such telephonic notice shall be conclusive absent manifest error.
<PAGE>
2.4. Disbursement of Funds. (a) No later than 2:00 P.M.
(local time at the Payment Office) on the date specified in each
Notice of Borrowing, each Lender will make available its pro rata
share of each Borrowing requested to be made on such date in the
manner provided below. All amounts shall be made available to
the Administrative Agent in U.S. dollars and immediately
available funds at the Payment Office and the Administrative
Agent promptly will make available to the Co-Borrowers by
depositing to the Treasury Manager 's account at the Payment
Office the aggregate of the amounts so made available in the type
of funds received. Unless the Administrative Agent shall have
been notified by any Lender prior to the date of Borrowing that
such Lender does not intend to make available to the
Administrative Agent its portion of the Borrowing or Borrowings
to be made on such date, the Administrative Agent may assume that
such Lender has made such amount available to the Administrative
Agent on such date of Borrowing, and the Administrative Agent, in
reliance upon such assumption, may (in its sole discretion and
without any obligation to do so) make available to the Co-
Borrowers a corresponding amount. If such corresponding amount
is not in fact made available to the Administrative Agent by such
Lender and the Administrative Agent has made available same to
the Co-Borrowers, the Administrative Agent shall be entitled to
recover such corresponding amount from such Lender. If such
Lender does not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent
shall promptly notify the Treasury Manager, and the Co-Borrowers
shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be
entitled to recover from such Lender or the Co-Borrowers, as the
case may be, interest on such corresponding amount in respect of
each day from the date such corresponding amount was made
available by the Administrative Agent to the Co-Borrowers to the
date such corresponding amount is recovered by the Administrative
Agent, at a rate per annum equal to (x) if paid by such Lender,
the overnight Federal Funds Effective Rate or (y) if paid by the
Co-Borrowers, the then applicable rate of interest, calculated in
accordance with section 2.8, for the respective Loans (but
without any requirement to pay any amounts in respect thereof
pursuant to section 2.11).
(b Nothing herein and no subsequent termination of the
Commitments pursuant to section 4.1 or 4.2 shall be deemed to
relieve any Lender from its obligation to fulfill its Commitment
hereunder and in existence from time to time or to prejudice any
rights which the Co-Borrowers may have against any Lender as a
result of any default by such Lender hereunder.
2.5. Minimum Borrowing Amounts. The aggregate principal
amount of each Borrowing by the Co-Borrowers shall not be less
than the Minimum Borrowing Amount. More than one Borrowing may
be incurred by the Co-Borrowers on any day, provided that if
there are two or more Borrowings on a single day which consist of
Eurodollar Loans, each such Borrowing shall have a different
initial Interest Period.
2.6. Notes. (a) The Co-Borrowers' obligation to pay the
principal of, and interest on, the Loans made to the Co-Borrowers
by each Lender shall be evidenced by a promissory note
substantially in the form of Exhibit A with blanks appropriately
completed in conformity herewith (each a " Note" and,
collectively, the " Notes").
<PAGE>
(b The Note issued to a Lender shall: (i) be executed by
the Co-Borrowers who are at such time parties to this Agreement;
(ii) be payable to the order of such Lender and be dated on or
prior to the date the first Loan evidenced thereby is made; (iii)
be in a stated principal amount equal to the Commitment of such
Lender and be payable in the principal amount of Loans evidenced
thereby; (iv) mature on the Maturity Date; (v) bear interest as
provided in section 2.8 in respect of the Prime Rate Loans and
Eurodollar Loans, as the case may be, evidenced thereby; (vi) be
subject to mandatory prepayment as provided in section 5.2: and
(vii) be entitled to the benefits of this Agreement and the other
Credit Documents.
(c Each Lender will note on its internal records the
amount of each Loan made by it and each payment in respect
thereof and will, prior to any transfer of any Note, endorse on
the reverse side thereof or the grid attached thereto the
outstanding principal amount of Loans evidenced thereby. Failure
to make any such notation or any error in any such notation shall
not affect the any Co-Borrower's obligations in respect of such
Loans.
2.7. Conversions of Loans. The Co-Borrowers shall have the
option to convert on any Business Day all or a portion at least
equal to the applicable Minimum Borrowing Amount of the
outstanding principal amount of the outstanding Loans comprising
a Borrowing into a Borrowing or Borrowings of the other Type of
Loan which can be made hereunder, provided that: (i) no partial
conversion of a Borrowing of Eurodollar Loans shall reduce the
outstanding principal amount of the Eurodollar Loans made
pursuant to such Borrowing to less than the Minimum Borrowing
Amount applicable thereto; (ii) any conversion of Eurodollar
Loans into Prime Rate Loans shall be made on, and only on, the
last day of an Interest Period for such Eurodollar Loans; (iii)
Prime Rate Loans may only be converted into Eurodollar Loans if
no Default under section 10.1(a) or Event of Default is in
existence on the date of the conversion unless the Required
Lenders otherwise agree; and (iv) Borrowings of Eurodollar Loans
resulting from this section 2.7 shall conform to the requirements
of section 2.5. Each such conversion shall be effected by the
Treasury Manager (acting on behalf of all Co-Borrowers) giving
the Administrative Agent at its Notice Office, prior to 11:00
A.M. (local time at such Notice Office), at least three Business
Days' (or prior to 11:00 A.M. (local time at such Notice Office)
same Business Day's, in the case of a conversion into Prime Rate
Loans) prior written notice (or telephonic notice promptly
confirmed in writing if so requested by the Administrative Agent)
(each a "Notice of Conversion"), substantially in the form of
Exhibit B-2, specifying the Loans to be so converted, the Type of
Loans to be converted into and, if to be converted into a
Borrowing of Eurodollar Loans, the Interest Period to be
initially applicable thereto. The Administrative Agent shall
give each Lender prompt notice of any such proposed conversion.
For the avoidance of doubt, the prepayment or repayment of any
Loans out of the proceeds of other Loans by the Co-Borrowers is
not considered a conversion of Loans into other Loans.
<PAGE>
2.8. Interest. (a Interest on Prime Rate Loans. During
such periods as a Loan is a Prime Rate Loan, the unpaid principal
amount thereof shall bear interest at a fluctuating rate per
annum which shall at all times be equal to the Prime Rate in
effect from time to time.
(b Interest on Eurodollar Loans. During such periods as
a Loan is a Eurodollar Loan, the unpaid principal amount thereof
shall bear interest at a rate per annum which shall at all times
during any Interest Period applicable thereto be the relevant
Eurodollar Rate for such Interest Period plus the Applicable
Eurodollar Margin (as defined below) in effect from time to time.
(c Default Interest. Notwithstanding the above
provisions, if a Default under section 10.1(a) or Event of
Default is in existence, all outstanding amounts of principal
and, to the extent permitted by law, all overdue interest, in
respect of each Loan shall bear interest, payable on demand, at a
fluctuating rate per annum equal to 2% per annum above the Prime
Rate in effect from time to time. If any amount (other than the
principal of and interest on the Loans) payable by any Co-
Borrower under the Credit Documents is not paid when due, such
amount shall bear interest, payable on demand, at a fluctuating
rate per annum equal to 2% per annum above the Prime Rate in
effect from time to time.
(d Accrual and Payment of Interest. Interest shall
accrue from and including the date of any Borrowing to but
excluding the date of any prepayment or repayment thereof and
shall be payable:
(i in the case of any Prime Rate Loan, quarterly in
arrears on the last Business Day of March, June, September
and December,
(ii in the case of any Eurodollar Loan, on the last
day of each Interest Period applicable thereto and, in the
case of an Interest Period in excess of three months, on the
dates which are successively three months after the
commencement of such Interest Period, and
(iii in respect of each Loan, on any prepayment or
conversion (on the amount prepaid or converted), at maturity
(whether by acceleration or otherwise) and, after such
maturity, on demand.
(e Computations of Interest. All computations of
interest hereunder shall be made in accordance with section
14.7(b).
(f Information as to Interest Rates. Each Reference Bank
agrees to furnish the Administrative Agent timely information for
the purpose of determining the Eurodollar Rate for any Borrowing
consisting of Eurodollar Loans. If any one or more of the
Reference Banks shall not timely furnish such information, the
Administrative Agent shall determine the Eurodollar Rate on the
basis of timely information furnished by the remaining Reference
Banks. The Administrative Agent upon determining the interest
rate for any Borrowing shall promptly notify the Borrower and the
Lenders thereof.
<PAGE>
(g Applicable Eurodollar Margin. As used herein, the
term "Applicable Eurodollar Margin", as applied to any Loan which
is a Eurodollar Loan, means the rate per annum determined by the
Administrative Agent in accordance with the Pricing Grid Table
which appears below, based on the Company's Consolidated
EBITDA/Interest Ratio and the following provisions. Initially,
until changed hereunder in accordance with the following
provisions, the Applicable Eurodollar Margin will be 42.50 basis
points per annum. Changes in the Applicable Eurodollar Margin,
based upon changes in the Company's Consolidated EBITDA/Interest
Ratio as at the end of any fiscal quarter ending on or after the
fiscal quarter ended on or nearest to December 31, 1999, shall
become effective on the first day of the month following the
receipt by the Administrative Agent pursuant to section 8.1(a) or
(b) of the financial statements of the Company, accompanied by
the certificate referred to in section 8.1(c), demonstrating the
computation of such ratio, based upon the ratio in effect at the
end of the applicable period covered (in whole or in part) by
such financial statements; provided that if any financial
statements referred to in section 8.1(a) or (b), or the related
certificate referred to in section 8.1(c), are not timely
delivered, the Administrative Agent may determine the Applicable
Eurodollar Margin based upon a good faith estimate by the
Treasury Manager of such ratio as in effect at the end of the
applicable period to be covered (in whole or in part) by such
financial statements, provided, further, that if upon delivery of
such delinquent financial statements and related certificate,
such financial statements indicate that such good faith estimate
was incorrect and, as a result thereof, the Applicable Eurodollar
Margin for any Loans was too low at such determination, the
Applicable Eurodollar Margin for such Loans shall be increased,
as appropriate, with retroactive effect to the date of the change
made on the basis of such determination, and the Co-Borrowers
will immediately pay to the Administrative Agent, for the account
of the Lenders all additional interest due by reason of such
increased Applicable Eurodollar Margin. Any changes in the
Applicable Eurodollar Margin shall be determined by the
Administrative Agent and the Administrative Agent will promptly
provide notice of such determinations to the Treasury Manager and
the Lenders. Any such determination by the Administrative Agent
pursuant to this section 2.8(g) shall be conclusive and binding
absent manifest error.
<PAGE>
PRICING GRID TABLE
(Expressed in Basis Points)
Applicable Applicable
Consolidated EBITDA/Interest Eurodollar Facility
Ratio Margin Fee Rate
11.00 to 1.00 40.00 20.00
8.00 to 1.00 and < 11.00 to 1.00 42.50 22.50
6.00 to 1.00 and < 8.00 to 1.00 45.00 25.00
< 6.00 to 1.00 47.50 27.50
2.9. Interest Periods. (a) At the time the Treasury
Manager gives a Notice of Borrowing or Notice of Conversion in
respect of the making of, or conversion into, a Borrowing of
Eurodollar Loans (in the case of the initial Interest Period
applicable thereto) or prior to 11:00 A.M. (local time at the
applicable Notice Office) on the third Business Day prior to the
expiration of an Interest Period applicable to a Borrowing of
Eurodollar Loans, it shall have the right to elect by giving the
Administrative Agent written or telephonic notice (in the case of
telephonic notice, promptly confirmed in writing if so requested
by the Administrative Agent) of the Interest Period applicable to
such Borrowing, which Interest Period shall, at the option of the
Treasury Manager, be a one, two, three or six month period.
Notwithstanding anything to the contrary contained above:
(i the initial Interest Period for any Borrowing of
Eurodollar Loans shall commence on the date of such
Borrowing (including the date of any conversion from a
Borrowing of Prime Rate Loans) and each Interest Period
occurring thereafter in respect of such Borrowing shall
commence on the day on which the next preceding Interest
Period expires;
(ii if any Interest Period begins on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest
Period shall end on the last Business Day of such calendar
month;
<PAGE>
(iii if any Interest Period would otherwise expire
on a day which is not a Business Day, such Interest Period
shall expire on the next succeeding Business Day, provided
that if any Interest Period would otherwise expire on a day
which is not a Business Day but is a day of the month after
which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business
Day;
(iv no Interest Period for any Loan may be selected
which would end after the Maturity Date; and
(v no Interest Period may be elected at any time when
a Default under section 10.1(a) or an Event of Default is
then in existence unless the Required Lenders otherwise
agree.
(b If upon the expiration of any Interest Period the
Treasury Manager has failed to (or may not) elect a new Interest
Period to be applicable to the respective Borrowing of Eurodollar
Loans as provided above, the Treasury Manager shall be deemed to
have elected to convert such Borrowing to Prime Rate Loans
effective as of the expiration date of such current Interest
Period.
2.10. Increased Costs, Illegality, etc. (a) In the
event that (x) in the case of clause (i) below, the
Administrative Agent or (y) in the case of clauses (ii) and (iii)
below, any Lender, shall have determined on a reasonable basis
(which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto):
(i on any date for determining the Eurodollar Rate
for any Interest Period that, by reason of any changes
arising after the Effective Date affecting the interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis
provided for in the definition of Eurodollar Rate; or
(ii at any time, that such Lender shall incur
increased costs or reductions in the amounts received or
receivable hereunder in an amount which such Lender deems
material with respect to any Eurodollar Loans (other than
any increased cost or reduction in the amount received or
receivable resulting from the imposition of or a change in
the rate of taxes or similar charges) because of (x) any
change since the Effective Date in any applicable law,
governmental rule, regulation, guideline, order or request
(whether or not having the force of law), or in the
interpretation or administration thereof and including the
introduction of any new law or governmental rule,
regulation, guideline, order or request (such as, for
example, but not limited to, a change in official reserve
requirements, but, in all events, excluding reserves
includable in the Eurodollar Rate pursuant to the definition
thereof) and/or (y) other circumstances adversely affecting
the interbank Eurodollar market or the position of such
Lender in such market; or
<PAGE>
(iii at any time, that the making or continuance
of any Eurodollar Loan has become unlawful by compliance by
such Lender in good faith with any change since the
Effective Date in any law, governmental rule, regulation,
guideline or order, or the interpretation or application
thereof, or would conflict with any thereof not having the
force of law but with which such Lender customarily complies
or has become impracticable as a result of a contingency
occurring after the Effective Date which materially
adversely affects the interbank Eurodollar market;
then, and in any such event, such Lender (or the Administrative
Agent in the case of clause (i) above) shall (x) on or promptly
following such date or time and (y) within 10 Business Days of
the date on which such event no longer exists give notice (by
telephone confirmed in writing) to the Treasury Manager and to
the Administrative Agent of such determination (which notice the
Administrative Agent shall promptly transmit to each of the other
applicable Lenders). Thereafter (x) in the case of clause (i)
above, Eurodollar Loans shall no longer be available until such
time as the Administrative Agent notifies the Treasury Manager
and the Lenders that the circumstances giving rise to such notice
by the Administrative Agent no longer exist, and any Notice of
Borrowing or Notice of Conversion given by the Treasury Manager
with respect to Eurodollar Loans which have not yet been incurred
or converted shall be deemed rescinded by the Treasury Manager
or, in the case of a Notice of Borrowing, shall, at the option of
the Treasury Manager, be deemed converted into a Notice of
Borrowing for Prime Rate Loans to be made on the date of
Borrowing contained in such Notice of Borrowing, (y) in the case
of clause (ii) above, the Co-Borrowers shall pay to such Lender,
upon written demand therefor, such additional amounts (in the
form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender shall
determine) as shall be required to compensate such Lender, for
such increased costs or reductions in amounts receivable
hereunder (a written notice as to the additional amounts owed to
such Lender, showing the basis for the calculation thereof, which
basis must be reasonable, submitted to the Borrower by such
Lender shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) and (z) in the case of clause
(iii) above, the Co-Borrowers shall take one of the actions
specified in section 2.10(b) as promptly as possible and, in any
event, within the time period required by law.
(b At any time that any Eurodollar Loan is affected by the
circumstances described in section 2.10(a)(ii) or (iii), the
Treasury Manager (on behalf of all Co-Borrowers) may (and in the
case of a Eurodollar Loan affected pursuant to section
2.10(a)(iii) the Treasury Manager shall) either (i) if the
affected Eurodollar Loan is then being made pursuant to a
Borrowing, by giving the Administrative Agent telephonic notice
(confirmed promptly in writing) thereof on the same date that the
Treasury Manager was notified by a Lender pursuant to section
2.10(a)(ii) or (iii), cancel said Borrowing, convert the related
Notice of Borrowing into one requesting a Borrowing of Prime Rate
Loans or require the affected Lender to make its requested Loan
as a Prime Rate Loan, or (ii) if the affected Eurodollar Loan is
then outstanding, upon at least one Business Day's notice to the
Administrative Agent, require the affected Lender to convert each
such Eurodollar Loan into a Prime Rate Loan, provided that if
more than one Lender is affected at any time, then all affected
Lenders must be treated the same pursuant to this section
2.10(b).
<PAGE>
(c If any Lender shall have determined that after the
Effective Date, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or
any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged
by law with the interpretation or administration thereof, or
compliance by such Lender or its parent corporation with any
request or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank, or
comparable agency, in each case made subsequent to the Effective
Date, has or would have the effect of reducing by an amount
reasonably deemed by such Lender to be material the rate of
return on such Lender's or its parent corporation's capital or
assets as a consequence of such Lender's commitments or
obligations hereunder to a level below that which such Lender or
its parent corporation could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration
such Lender's or its parent corporation's policies with respect
to capital adequacy), then from time to time, within 15 days
after demand by such Lender upon the Treasury Manager (with a
copy to the Administrative Agent), the Co-Borrowers shall pay to
such Lender such additional amount or amounts as will compensate
such Lender or its parent corporation for such reduction. Each
Lender, upon determining in good faith that any additional
amounts will be payable pursuant to this section 2.10(c), will
give prompt written notice thereof to the Treasury Manager, which
notice shall set forth, in reasonable detail, the basis of the
calculation of such additional amounts, which basis must be
reasonable, although the failure to give any such notice shall
not release or diminish any Co-Borrowers's obligations to pay
additional amounts pursuant to this section 2.10(c) upon the
subsequent receipt of such notice.
(d Notwithstanding anything in this Agreement to the
contrary, (i) no Lender shall be entitled to compensation or
payment or reimbursement of other amounts under section 2.10 or
5.4 for any amounts incurred or accruing more than 180 days prior
to the giving of notice to the Treasury Manager of additional
costs or other amounts of the nature described in such sections,
and (ii) no Lender shall demand compensation for any reduction
referred to in section 2.10(c) or payment or reimbursement of
other amounts under section 5.4 if it shall not at the time be
the general policy or practice of such Lender to demand such
compensation, payment or reimbursement in similar circumstances
under comparable provisions of other credit agreements.
<PAGE>
2.11. Breakage Compensation. The Co-Borrowers shall
compensate each applicable Lender, upon its written request
(which request shall set forth the detailed basis for requesting
and the method of calculating such compensation), for all
reasonable losses, expenses and liabilities (including, without
limitation, any loss, expense or liability incurred by reason of
the liquidation or reemployment of deposits or other funds
required by such Lender to fund its Eurodollar Loans) which such
Lender may sustain: (i) if for any reason (other than a default
by such Lender or the Administrative Agent), a Borrowing of
Eurodollar Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion (whether or not
rescinded or withdrawn by the Treasury Manager or deemed
rescinded or withdrawn pursuant to section 2.10(a)); (ii) if any
repayment, prepayment or conversion of any of its Eurodollar
Loans occurs on a date which is not the last day of an Interest
Period applicable thereto; (iii) if any prepayment of any of its
Eurodollar Loans is not made on any date specified in a notice of
prepayment given by the Treasury Manager; or (iv) as a
consequence of (x) any other default by the Co-Borrowers (or any
of them) to repay their Eurodollar Loans when required by the
terms of this Agreement or (y) an election made pursuant to
section 2.10(b).
2.12. Change of Lending Office; Replacement of Lenders.
(a) Each Lender agrees that, upon the occurrence of any event
giving rise to the operation of section 2.10(a)(ii) or (iii),
2.10(c) or 5.4 with respect to such Lender, it will, if requested
by the Treasury Manager, use reasonable efforts (subject to
overall policy considerations of such Lender) to designate
another Applicable Lending Office for any Loans or Commitment
affected by such event, provided that such designation is made on
such terms that such Lender and its Applicable Lending Office
suffer no economic, legal or regulatory disadvantage, with the
object of avoiding the consequence of the event giving rise to
the operation of any such section.
(b If any Lender requests any compensation, reimbursement
or other payment under section 2.10(a)(ii) or (iii) or 2.10(c)
with respect to such Lender, or if the Co-Borrowers are required
to pay any additional amount to any Lender or governmental
authority pursuant to section 5.4, or if any Lender is a
Defaulting Lender, then the Treasury Manager (on behalf of all Co-
Borrowers) may, at its and their sole expense and effort, upon
notice to such Lender and the Administrative Agent, require such
Lender to assign and delegate, without recourse (in accordance
with the restrictions contained in section 14.4(b)), all its
interests, rights and obligations under this Agreement to an
assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided
that (i) the Treasury Manager shall have received the prior
written consent of the Administrative Agent, which consent shall
not be unreasonably withheld, (ii) such Lender shall have
received payment of an amount equal to the outstanding principal
of its Loans, accrued interest thereon, accrued fees and all
other amounts payable to it hereunder, from
<PAGE>
the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Co-Borrowers (in the case of
all other amounts), and (iii) in the case of any such assignment
resulting from a claim for compensation, reimbursement or other
payments required to be made under section 2.10(a)(ii) or (iii)
or 2.10(c) with respect to such Lender, or resulting from any
required payments to any Lender or governmental authority
pursuant to section 5.4, such assignment will result in a
reduction in such compensation, reimbursement or payments. A
Lender shall not be required to make any such assignment and
delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Treasury
Manager to require such assignment and delegation cease to apply.
(c Nothing in this section 2.12 shall affect or postpone
any of the obligations of the Co-Borrowers or the right of any
Lender provided in section 2.10 or 5.4.
SECTION 3. FEES.
3.1. Facility Fee. (a) The Co-Borrowers agree to pay to
the Administrative Agent a Facility Fee ("Facility Fee"), for the
account of each Non-Defaulting Lender, for the period from and
including the Effective Date to but not including the date the
Total Commitment has been terminated and all Loans have been
paid in full. The Co-Borrowers will pay the Facility Fee in
advance, with the first such payment being due on the Effective
Date for the period through February 29, 2000, and succeeding
quarterly payments being due on each March 1, June 1, September 1
and December 1 thereafter for the quarterly period commencing on
such date, commencing March 1, 2000, until the Maturity Date (or
if later, the date when all Loans have been paid in full). The
Facility Fee payable on any date shall be computed at the
Applicable Facility Fee Rate then in effect on the entire amount
of the Total Commitment, whether used or unused.
(b If at any time the Co-Borrowers voluntarily reduce the
Total Commitment in part pursuant to section 4.1 or voluntarily
terminate the Total Commitment in whole pursuant to section 4.1,
each affected Lender will, if no Default under section 10.1(a) or
Event of Default shall have occurred and be continuing, refund to
the Treasury Manager (for the account of the Co-Borrowers) such
portion, if any, of any Facility Fee previously received by such
Lender as relates to the amount by which its Commitment has been
so reduced and covers any period following such reduction, or as
relates to its Commitment and covers any period following any
such termination.
<PAGE>
(c As used herein, the term "Applicable Facility Fee Rate"
means the rate per annum determined by the Administrative Agent
in accordance with the Pricing Grid Table which appears in
section 2.8(g), based on the Company's Consolidated
EBITDA/Interest Ratio and the following provisions; provided,
that notwithstanding any thing to the contrary contained herein,
if any Facility Fee is payable at a time when a Default under
section 10.1(a) or Event of Default shall have occurred and be
continuing, the Applicable Facility Fee Rate for such payment
will be the highest rate per annum indicated for the Applicable
Facility Fee Rate in such Pricing Grid Table. Initially, until
changed hereunder in accordance with the following provisions,
the Applicable Facility Fee Rate will be 22.50 basis points per
annum. Changes in the Applicable Facility Fee Rate, based upon
changes in the Company's Consolidated EBITDA/Interest Ratio as at
the end of any fiscal quarter ending on or after the fiscal
quarter ended on or nearest to December 31, 1999, shall become
effective for any Facility Fee payable on or after the first day
of the month following the receipt by the Administrative Agent
pursuant to section 8.1(a) or (b) of the financial statements of
the Company, accompanied by the certificate referred to in
section 8.1(c), demonstrating the computation of such ratio,
based upon the ratio in effect at the end of the applicable
period covered (in whole or in part) by such financial
statements; provided that if any financial statements referred to
in section 8.1(a) or (b), or the related certificate referred to
in section 8.1(c), are not timely delivered or are not yet due to
be delivered with respect to any fiscal quarter or year which has
ended, the Administrative Agent may determine the Applicable
Facility Fee Rate based upon a good faith estimate by the
Treasury Manager of such ratio as in effect at the end of the
applicable period to be covered (in whole or in part) by such
financial statements, provided, further, that if upon delivery of
such delinquent financial statements and related certificate,
such financial statements indicate that such good faith estimate
was incorrect and, as a result thereof, the Applicable Facility
Fee Rate was too low at such determination, the Applicable
Facility Fee Rate shall be increased, as appropriate, with
retroactive effect to the date of the change made on the basis of
such determination, and the Co-Borrowers will immediately pay to
the Administrative Agent for the account of the Lenders all
additional Facility Fee due by reason of such increased
Applicable Facility Fee Rate. Any changes in the Applicable
Facility Fee Rate shall be determined by the Administrative Agent
and the Administrative Agent will promptly provide notice of such
determinations to the Treasury Manager and the Lenders. Any such
determination by the Administrative Agent pursuant to this
section 3.1(c) shall be conclusive and binding absent manifest
error.
3.2. Other Fees. The Co-Borrowers shall pay to the
Administrative Agent on the Effective Date and thereafter for its
own account and/or for distribution to the Lenders such fees as
heretofore agreed in writing by the Treasury Manager (on behalf
of the Co-Borrowers) or by the Company and the Administrative
Agent.
3.3. Computations of Fees. All computations of Fees under
this Agreement shall be made in accordance with section 14.7(b).
<PAGE>
SECTION 4. COMMITMENTS.
4.1. Voluntary Termination/Reduction of Commitments. Upon
at least three Business Days' prior written notice (or telephonic
notice confirmed in writing) to the Administrative Agent at its
Notice Office (which notice the Administrative Agent shall
promptly transmit to each of the Lenders), by the Treasury
Manager (on behalf of the Co-Borrowers), the Co-Borrowers shall
have the right, without premium or penalty, to:
(a terminate the Total Commitment, provided that all
outstanding Loans are contemporaneously prepaid in
accordance with section 5.1; and/or
(b partially and permanently reduce the Unutilized
Total Commitment, provided that (i) any such reduction
shall apply to proportionately and permanently reduce the
applicable Commitment of each of the Lenders; and (ii) any
partial reduction of the Unutilized Total Commitment
pursuant to this section 4.1(b) shall be in the amount of at
least $5,000,000 (or, if greater, in integral multiples of
$1,000,000).
4.2. Mandatory Termination of Commitments, etc. (a) The
Total Commitment (and the Commitment of each Lender) shall
terminate on December 15, 1999, unless the Closing Date has
occurred on or prior to such date.
(b The Total Commitment (and each Commitment of each
Lender) shall terminate on the earlier of (x) the Maturity Date,
(y) the date on which a Change of Control occurs, and (z) the
date on which a Determination of Taxability occurs.
SECTION 5. PAYMENTS.
5.1. Voluntary Prepayments. The Co-Borrowers shall have the
right to prepay any of the Loans, in whole or in part, without
premium or penalty, from time to time, but only on the following
terms and conditions:
(a the Treasury Manager shall give the Administrative
Agent at the Notice Office written or telephonic notice (in
the case of telephonic notice, promptly confirmed in writing
if so requested by the Administrative Agent) of its intent
to prepay the Loans, the amount of such prepayment and (in
the case of Eurodollar Loans) the specific Borrowing(s)
pursuant to which made, which notice shall be received by
the Administrative Agent by
(i 11:00 A.M. (local time at the Notice Office)
three Business Days prior to the date of such
prepayment, in the case of any prepayment of Eurodollar
Loans, or
<PAGE>
(ii 11:00 A.M. (local time at the Notice Office)
on the date of such prepayment, in the case of any
prepayment of Prime Rate Loans,
and which notice shall promptly be transmitted by the
Administrative Agent to each of the Lenders;
(b in the case of any partial prepayment of any
Borrowing consisting of Prime Rate Loans, the amount of such
partial prepayment shall be in an aggregate principal of at
least $500,000 or an integral multiple of $100,000 in excess
thereof;
(c in the case of any partial prepayment of any
Borrowing consisting of Eurodollar Loans, the amount of such
partial prepayment shall be in an aggregate principal of at
least $2,000,000 or an integral multiple of $1,000,000 in
excess thereof;
(d no partial prepayment of any Loans made pursuant
to a Borrowing shall reduce the aggregate principal amount
of such Loans outstanding pursuant to such Borrowing to an
amount less than the Minimum Borrowing Amount applicable
thereto;
(e each prepayment in respect of any Loans made
pursuant to a Borrowing shall be applied pro rata among such
Loans; and
(f each prepayment of Eurodollar Loans pursuant to
this section 5.1 on any date other than the last day of the
Interest Period applicable thereto shall be accompanied by
any amounts payable in respect thereof under section 2.11.
5.2. Mandatory Prepayments. The Loans shall be subject to
mandatory prepayment in accordance with the following provisions:
(a If Outstanding Loans Exceed Total Commitment.
If on any date (after giving effect to any other payments on
such date) the aggregate outstanding principal amount of
Loans exceeds the Total Commitment as then in effect, the
Co-Borrowers shall prepay on such date Loans in an
aggregate amount, conforming to the requirements of section
5.1 as to the amount of partial prepayments provided for
therein, at least equal to such excess.
(b Change of Control. On the date on which a Change
of Control occurs, notwithstanding anything to the contrary
contained in this Agreement, no further Borrowings shall be
made and the then outstanding principal amount of all Loans,
if any, shall become due and payable and shall be prepaid in
full.
<PAGE>
(c Determination of Taxability. On the date on which
a Determination of Taxability occurs, notwithstanding
anything to the contrary contained in this Agreement, no
further Borrowings shall be made and the then outstanding
principal amount of all Loans, if any, shall become due and
payable and shall be prepaid in full.
(d Particular Loans to be Prepaid. With respect to
each prepayment of Loans required by this section 5.2, the
Treasury Manager shall designate the Types of Loans which
are to be prepaid and the specific Borrowing(s) pursuant to
which such prepayment is to be made, provided that (i) the
Treasury Manager shall first so designate all Loans that are
Prime Rate Loans and Eurodollar Loans with Interest Periods
ending on the date of prepayment prior to designating any
other Eurodollar Loans for prepayment, (ii if the
outstanding principal amount of Eurodollar Loans made
pursuant to a Borrowing is reduced below the applicable
Minimum Borrowing Amount as a result of any such prepayment,
then all the Loans outstanding pursuant to such Borrowing
shall be converted into Prime Rate Loans, and (iii) each
prepayment of any Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans. In the absence of a
designation by the Treasury Manager as described in the
preceding sentence, the Administrative Agent shall, subject
to the above, make such designation in its sole discretion
with a view, but no obligation, to minimize breakage costs
owing under section 2.11. Any prepayment of Eurodollar Loans
pursuant to this section 5.2 shall in all events be
accompanied by such compensation as is required by section
2.11.
5.3. Method and Place of Payment. Except as otherwise
specifically provided herein, all payments under this Agreement
shall be made to the Administrative Agent for the ratable (based
on its pro rata share) account of the Lenders entitled thereto,
not later than 11:00 A.M. (local time at the Payment Office) on
the date when due and shall be made in immediately available
funds and in lawful money of the United States of America at the
Payment Office, it being understood that written notice by any Co-
Borrower, or by the Treasury Manager (on behalf of any Co-
Borrower) to the Administrative Agent to make a payment from the
funds in such Co-Borrower's account, or the account of any Co-
Borrower so designated by the Treasury Manager, at the Payment
Office shall constitute the making of such payment to the extent
of such funds held in such account. Any payments under this
Agreement which are made later than 11:00 A.M. (local time at the
Payment Office) shall be deemed to have been made on the next
succeeding Business Day. Whenever any payment to be made
hereunder shall be stated to be due on a day which is not a
Business Day, the due date thereof shall be extended to the next
succeeding Business Day and, with respect to payments of
principal, interest shall be payable during such extension at the
applicable rate in effect immediately prior to such extension.
<PAGE>
5.4. Net Payments. (a) All payments made by any Co-
Borrower hereunder, under any Note or any other Credit Document,
will be made without setoff, counterclaim or other defense.
Except as provided for in section 5.4(b), all such payments will
be made free and clear of, and without deduction or withholding
for, any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature now or hereafter
imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments
(but excluding, except as provided in the second succeeding
sentence, any tax, imposed on or measured by the net income or
net profits of a Lender pursuant to the laws of the jurisdiction
under which such Lender is organized or the jurisdiction in which
the principal office or Applicable Lending Office of such Lender
is located or any subdivision thereof or therein) and all
interest, penalties or similar liabilities with respect to such
non excluded taxes, levies imposts, duties, fees, assessments or
other charges (all such nonexcluded taxes levies, imposts,
duties, fees assessments or other charges being referred to
collectively as "Taxes"). If any Taxes are so levied or imposed,
the Co-Borrowers agree to pay the full amount of such Taxes and
such additional amounts as may be necessary so that every payment
by any Co-Borrower of all amounts due hereunder, under any Note
or under any other Credit Document, after withholding or
deduction for or on account of any Taxes will not be less than
the amount provided for herein or in such Note or in such other
Credit Document. If any amounts are payable in respect of Taxes
pursuant to the preceding sentence, the Co-Borrowers agree to
reimburse each Lender, upon the written request of such Lender
for taxes imposed on or measured by the net income or profits of
such Lender pursuant to the laws of the jurisdiction in which
such Lender is organized or in which the principal office or
Applicable Lending Office of such Lender is located or under the
laws of any political subdivision or taxing authority of any such
jurisdiction in which the principal office or Applicable Lending
Office of such Lender is located and for any withholding of
income or similar taxes imposed by the United States of America
as such Lender shall determine are payable by, or withheld from,
such Lender in respect of such amounts so paid to or on behalf of
such Lender pursuant to the preceding sentence and in respect of
any amounts paid to or on behalf of such Lender pursuant to this
sentence, which request shall be accompanied by a statement from
such Lender setting forth, in reasonable detail, the computations
used in determining such amounts. Each Co-Borrower will furnish
to the Administrative Agent within 45 days after the date the
payment of any Taxes, or any withholding or deduction on account
thereof, is due pursuant to applicable law certified copies of
tax receipts, or other evidence satisfactory to the Lender,
evidencing such payment by such Co-Borrower. The Co-Borrowers
will indemnify and hold harmless the Administrative Agent and
each Lender, and reimburse the Administrative Agent or such
Lender upon its written request, for the amount of any Taxes so
levied or imposed and paid or withheld by such Lender.
<PAGE>
(b) Each Lender that is not a United States person (as such
term is defined in section 7701(a)(30) of the Code) for Federal
income tax purposes agrees to provide to the Treasury Manager and
the Administrative Agent on or prior to the Effective Date, or in
the cases of a Lender that is an assignee or transferee of an
interest under this Agreement pursuant to section 14.4 (unless
the respective Lender was already a Lender hereunder immediately
prior to such assignment or transfer and such Lender is in
compliance with the provisions of this section 5.4(b)), on the
date of such assignment or transfer to such Lender, (i) two
accurate and complete original signed copies of Internal Revenue
Service Form 4224 or 1001 (or successor forms) certifying to such
Lender's entitlement to a complete exemption from United States
withholding tax with respect to payments to be made under this
Agreement, any Note or any other Credit Document, or (ii) if the
Lender is not a "bank" within the meaning of section 881(c)(3)(A)
of the Code and cannot deliver either Internal Revenue Service
Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit E (any such certificate, a
"Section 5.4(b)(ii) Certificate") and (y) two accurate and
complete original signed copies of Internal Revenue Service Form
W-8 (or successor form) certifying to such Lender's entitlement
to a complete exemption from United States withholding tax with
respect to payments of interest to be made under this Agreement,
any Note or any other Credit Document. In addition, each Lender
agrees that from time to time after the Effective Date, when a
lapse in time or change in circumstances renders the previous
certification obsolete or inaccurate in any material respect, it
will deliver to the Treasury Manager and the Administrative Agent
two new accurate and complete original signed copies of Internal
Revenue Service Form 4224 or 1001, or Form W-8 and a Section
5.4(b)(ii) Certificate, as the case may be, and such other forms
as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or
reduction in United States withholding tax with respect to
payments under this Agreement, any Note or any other Credit
Document, or it shall immediately notify the Treasury Manager and
the Administrative Agent of its inability to deliver any such
Form or Certificate, in which case such Lender shall not be
required to deliver any such Form or Certificate pursuant to this
section 5.4(b). Notwithstanding anything to the contrary
contained in section 5.4(a), but subject to section 14.4(b) and
the immediately succeeding sentence, (x) each Co-Borrower shall
be entitled, to the extent it is required to do so by law, to
deduct or withhold income or other similar taxes imposed by the
United States (or any political subdivision or taxing authority
thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Lender which is not a United
States person (as such term is defined in section 7701(a)(30) of
the Code) for United States federal income tax purposes and which
has not provided to the Treasury Manager such forms that
establish a complete exemption from such deduction or withholding
and (y) no Co-Borrower shall be obligated pursuant to section
5.4(a) hereof to gross-up payments to be made to a Lender in
respect of income or similar taxes imposed
<PAGE>
by the United States or any additional amounts with respect
thereto (I) if such Lender has not provided to the Treasury
Manager the Internal Revenue Service forms required to be
provided to the Treasury Manager pursuant to this section 5.4(b)
or (II) in the case of a payment other than interest, to a Lender
described in clause (ii) above, to the extent that such forms do
not establish a complete exemption from withholding of such
taxes. Notwithstanding anything to the contrary contained in the
preceding sentence or elsewhere in this section 5.4 and except as
specifically provided for in section 14.4(b), the Co-Borrowers
agree to pay additional amounts and indemnify each Lender in the
manner set forth in section 5.4(a) (without regard to the
identity of the jurisdiction requiring the deduction or
withholding) in respect of any Taxes deducted or withheld by it
as described in the previous sentence as a result of any changes
after the Effective Date in any applicable law, treaty,
governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding
of income or similar Taxes.
(c) If any Lender, in its sole opinion, determines that it
has finally and irrevocably received or been granted a refund in
respect of any Taxes paid as to which indemnification has been
paid by the Borrower pursuant to this section, it shall promptly
remit such refund (including any interest received in respect
thereof), net of all out-of-pocket costs and expenses; provided,
that the Co-Borrowers agree to promptly return any such refund
(plus interest) to such Lender in the event such Lender is
required to repay such refund to the relevant taxing authority.
Any such Lender shall provide the Treasury Manager with a copy of
any notice of assessment from the relevant taxing authority
(redacting any unrelated confidential information contained
therein) requiring repayment of such refund. Nothing contained
herein shall impose an obligation on any Lender to apply for any
such refund.
(d) Reference is hereby made to the provisions of section
2.10(d) for certain limitations upon the rights of a Lender under
this section.
SECTION 6. CONDITIONS PRECEDENT.
6.1. Conditions Precedent at Closing Date. The obligation
of the Lenders to make Loans is subject to the satisfaction of
each of the following conditions on the Closing Date:
(a) Effectiveness; Notes. On or prior to the Closing
Date, (i) the Effective Date shall have occurred and (ii)
there shall have been delivered to the Administrative Agent
for the account of each Lender the appropriate Note or Notes
executed by the Co-Borrowers, in each case, in the amount,
maturity and as otherwise provided herein.
<PAGE>
(b) Fees, etc. The Co-Borrowers shall have paid or
caused to be paid all fees required to be paid by them on or
prior to such date pursuant to section 3 hereof and all
reasonable fees and expenses of the Administrative Agent and
of special counsel to the Administrative Agent which have
been invoiced on or prior to such date in connection with
the preparation, execution and delivery of this Agreement
and the other Credit Documents and the consummation of the
transactions contemplated hereby and thereby.
(c) Other Credit Documents. The Credit Parties named
therein shall have duly executed and delivered and there
shall be in full force and effect, and original counterparts
shall have been delivered to the Administrative Agent, in
sufficient quantities for the Administrative Agent and the
Lenders, of, the Subsidiary Guaranty (as modified, amended
or supplemented from time to time in accordance with the
terms thereof and hereof, the "Subsidiary Guaranty"),
substantially in the form attached hereto as Exhibit C-1.
(d) Corporate Resolutions and Approvals. The
Administrative Agent shall have received, in sufficient
quantity for the Administrative Agent and the Lenders,
certified copies of the resolutions of the Board of
Directors of each Co-Borrower and each other Credit Party
(or, as to any Credit Party which is a partnership, of the
Board of Directors of one of its general partners),
approving the Credit Documents to which any Co-Borrower or
any such other Credit Party, as the case may be, is or may
become a party, and of all documents evidencing other
necessary corporate or other organizational action and
governmental approvals, if any, with respect to the
execution, delivery and performance by any Co-Borrower or
any such other Credit Party of the Credit Documents to which
it is or may become a party.
(e) Incumbency Certificates. The Administrative Agent
shall have received, in sufficient quantity for the
Administrative Agent and the Lenders, a certificate of the
Secretary or an Assistant Secretary of each Co-Borrower and
other Credit Party (or as to any Credit Party which is a
partnership, of the Secretary or an Assistant Secretary of
one of its general partners), certifying the names and true
signatures of the officers of such Co-Borrower or such other
Credit Party (or of any general partner, if such Credit
Party is a partnership), as the case may be, authorized to
sign the Credit Documents to which such Co-Borrower or such
other Credit Party is a party and any other documents to
which such Co-Borrower or any such other Credit Party is a
party which may be executed and delivered in connection
herewith.
(f) Opinion of Counsel. On the Closing Date, the
Administrative Agent shall have received an opinion,
addressed to the Administrative Agent and each of the
Lenders and dated the Closing Date, from Squire Sanders &
Dempsey, special counsel to the Company, substantially in
the form of Exhibit C-2 hereto and covering such other
matters incident to the transactions contemplated hereby as
the Administrative Agent may reasonably request, such
opinion to be in form and substance satisfactory to the
Administrative Agent.
<PAGE>
(g) Intercreditor Agreement. The parties named
therein shall have duly executed and delivered and there
shall be in full force and effect, and original counterparts
shall have been delivered to the Administrative Agent, in
sufficient quantities for the Administrative Agent and the
Lenders, of, the Intercreditor Agreement (as modified,
amended or supplemented from time to time in accordance with
the terms thereof and hereof, the "Intercreditor
Agreement"), substantially in the form attached hereto as
Exhibit C-3.
(h) Proceedings and Documents. All partnership,
corporate and other proceedings and all documents incidental
to the transactions contemplated hereby shall be
satisfactory in substance and form to the Administrative
Agent and the Lenders and the Administrative Agent and its
special counsel and the Lenders shall have received all such
counterpart originals or certified or other copies of such
documents as the Administrative Agent or its special counsel
or any Lender may reasonably request.
6.2. Conditions Precedent to All Loans. The obligations of
the Lenders to make each Loan, including any Loans made on the
Closing Date, is subject, at the time thereof, to the
satisfaction of the following conditions:
(a) Notice of Borrowing, etc. The Administrative
Agent shall have received a Notice of Borrowing meeting the
requirements of section 2.3 with respect to the incurrence
of Loans.
(b) No Default; Representations and Warranties. At
the time of each Loan and also after giving effect thereto,
(i) there shall exist no Default or Event of Default and
(ii) all representations and warranties of the Credit
Parties contained herein or in the other Credit Documents
shall be true and correct in all material respects with the
same effect as though such representations and warranties
had been made on and as of the date of such Loan, except to
the extent that such representations and warranties
expressly relate to an earlier specified date, in which case
such representations and warranties shall have been true and
correct in all material respects as of the date when made.
The acceptance of the proceeds of each Loan shall constitute a
representation and warranty by the Co-Borrowers to each of the
Lenders that all of the applicable conditions specified in
section 6.1 and/or 6.2, as the case may be, exist as of that
time. All of the certificates, legal opinions and other
documents and papers referred to in this section 6, unless
otherwise specified, shall be delivered to the Administrative
Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts for each of the Lenders, and
the Administrative Agent will promptly distribute to the Lenders
their respective Notes and the copies of such other certificates,
legal opinions and documents.
<PAGE>
SECTION 7. REPRESENTATIONS AND WARRANTIES.
In order to induce the Lenders to enter into this Agreement
and to make the Loans provided for herein, the Co-Borrowers make
the following representations and warranties to, and agreements
with, the Lenders, all of which shall survive the execution and
delivery of this Agreement and each Loan:
7.1. Organizational Status, etc. Each of the Company and
its Subsidiaries (i) is a duly organized or formed and validly
existing corporation, partnership or limited liability company,
as the case may be, in good standing under the laws of the
jurisdiction of its formation and has the corporate, partnership
or limited liability company power and authority, as applicable,
to own its property and assets and to transact the business in
which it is engaged and presently proposes to engage, and (ii)
has duly qualified and is authorized to do business in all
jurisdictions where it is required to be so qualified except
where the failure to be so qualified would not have a Material
Adverse Effect.
7.2. Subsidiaries. Annex II hereto lists, as of the date
hereof, each Subsidiary of the Company (and the direct and
indirect ownership interest of the Company therein).
7.3. Organizational Power and Authority, etc. Each Credit
Party has the corporate or other organizational power and
authority to execute, deliver and carry out the terms and
provisions of the Credit Documents to which it is party and has
taken all necessary corporate or other organizational action to
authorize the execution, delivery and performance of the Credit
Documents to which it is party. Each Credit Party has duly
executed and delivered each Credit Document to which it is party
and each Credit Document to which it is party constitutes the
legal, valid and binding agreement or obligation of such Credit
Party enforceable in accordance with its terms, except to the
extent that the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws generally affecting creditors' rights and by
equitable principles (regardless of whether enforcement is sought
in equity or at law).
7.4. No Violation. Neither the execution, delivery and
performance by any Credit Party of the Credit Documents to which
it is party nor compliance with the terms and provisions thereof
(i) will contravene any provision of any law, statute, rule,
regulation, order, writ, injunction or decree of any court or
governmental instrumentality applicable to such Credit Party or
its properties and assets, (ii) will conflict with or result in
any breach of, any of the terms, covenants, conditions or
provisions
<PAGE>
of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien
upon any of the property or assets of such Credit Party pursuant
to the terms of any promissory note, bond, debenture, indenture,
mortgage, deed of trust, credit or loan agreement, or any other
material agreement or other instrument, to which such Credit
Party is a party or by which it or any of its property or assets
are bound or to which it may be subject, or (iii) will violate
any provision of the certificate or articles of incorporation,
code of regulations or by-laws, or other charter documents of
such Credit Party.
7.5. Governmental Approvals. No order, consent, approval,
license, authorization, or validation of, or filing, recording or
registration with, or exemption by, any foreign or domestic
governmental or public body or authority, or any subdivision
thereof, is required to authorize or is required as a condition
to (i) the execution, delivery and performance by any Credit
Party of any Credit Document to which it is a party, or (ii) the
legality, validity, binding effect or enforceability of any
Credit Document to which any Credit Party is a party.
7.6. Litigation. There are no actions, suits or proceedings
pending or, to, the knowledge of the Company, threatened with
respect to the Company or any of its Subsidiaries (i) that have,
or could reasonably be expected to have, a Material Adverse
Effect, or (ii) which question the validity or enforceability of
any of the Credit Documents, or of any action to be taken by any
Credit Party pursuant to any of the Credit Documents to which it
is a party.
7.7. Use of Proceeds; Margin Regulations. (a) The proceeds
of all Loans shall be utilized for lawful purposes not
inconsistent with the requirements of this Agreement.
(b) No part of the proceeds of any Loan will be used
directly or indirectly to purchase or carry Margin Stock, or to
extend credit to others for the purpose of purchasing or carrying
any Margin Stock, in violation of any of the terms or provisions
of Regulation T, U or X of the Board of Governors of the Federal
Reserve System. No Co-Borrower is engaged in the business of
extending credit for the purpose of purchasing or carrying any
Margin Stock. At no time would more than 25% of the value of the
assets of any Co-Borrower or of any Co-Borrower and its
consolidated Subsidiaries that are subject to any "arrangement"
(as such term is used in section 221.2(g) of such Regulation U)
hereunder be represented by Margin Stock.
<PAGE>
7.8. Financial Statements, etc. (a) The Company has
furnished to the Lenders and the Administrative Agent complete
and correct copies of (i) the audited consolidated balance sheets
of the Company and its consolidated subsidiaries as of December
31, 1998, and December 31, 1997, and the related audited
consolidated statements of income, partners' equity, and cash
flows for the fiscal years then ended, accompanied by the
unqualified report thereon of the Company's independent
accountants, as contained in the most recent Form 10-K Annual
Report of the Company filed with the SEC; and (ii) the unaudited
condensed consolidated balance sheets of the Company and its
consolidated subsidiaries as of its fiscal quarter ended on or
nearest to September 30, 1999, and the related unaudited
condensed consolidated statements of income and of cash flows of
the Company and its consolidated subsidiaries for the fiscal
quarter or quarters then ended, as contained in the most recent
Form 10-Q Quarterly Report of the Company filed with the SEC. All
such financial statements have been prepared in accordance with
GAAP, consistently applied (except as stated therein), and fairly
present the financial position of the Company and its
consolidated subsidiaries as of the respective dates indicated
and the consolidated results of their operations and cash flows
for the respective periods indicated, subject in the case of any
such financial statements which are unaudited, to normal audit
adjustments, none of which will involve a Material Adverse
Effect.
(b) Each Co-Borrower has received consideration which is
the reasonable equivalent value of the obligations and
liabilities that such Co-Borrower has incurred to the
Administrative Agent and the Lenders. Each Co-Borrower now has
capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage and
is now solvent and able to pay its debts as they mature and each
Co-Borrower, as of the Closing Date, or if later, as of the date
it became an Additional Co-Borrower hereunder, owns property
having a value, both at fair valuation and at present fair
salable value, greater than the amount required to pay such Co-
Borrower's debts; and no Co-Borrower is entering into or
otherwise becoming a party to any of the Credit Documents with
the intent to hinder, delay or defraud its creditors.
(c) The Company has delivered or caused to be delivered to
the Lenders prior to the execution and delivery of this Agreement
a copy of the Company's Report on Form 10-K as filed (without
Exhibits) with the SEC for its fiscal year ended December 31,
1998, which contains a general description of the business and
affairs of the Company and its Subsidiaries.
7.9. No Material Adverse Change. Since December 31, 1998,
there has been no change in the condition, business or affairs of
the Company and its Subsidiaries taken as a whole, or their
properties and assets considered as an entirety, except for
changes, none of which, individually or in the aggregate, has had
or could reasonably be expected to have, a Material Adverse
Effect.
<PAGE>
7.10. Tax Returns and Payments. Each of the Company and
each of its Subsidiaries has filed all federal income tax returns
and all other material tax returns, domestic and foreign,
required to be filed by it and has paid all material taxes and
assessments payable by it which have become due, other than those
not yet delinquent and except for those contested in good faith.
The Company and each of its Subsidiaries has established on its
books such charges, accruals and reserves in respect of taxes,
assessments, fees and other governmental charges for all fiscal
periods as are required by GAAP. The Company knows of no
proposed assessment for additional federal, foreign or state
taxes for any period, or of any basis therefor, which,
individually or in the aggregate, taking into account such
charges, accruals and reserves in respect thereof as the Company
and its Subsidiaries have made, could reasonably be expected to
have a Material Adverse Effect.
7.11. Title to Properties, etc. The Company and each of
its Subsidiaries has good and marketable title, in the case of
real property, and good title (or valid leasehold interests, in
the case of any leased property), in the case of all other
property, to all of its properties and assets free and clear of
Liens other than Liens permitted by section 9.3. The interests
of the Company and each of its Subsidiaries in the properties
reflected in the most recent balance sheet referred to in section
7.8, taken as a whole, were sufficient, in the judgment of the
Company, as of the date of such balance sheet for purposes of the
ownership and operation of the businesses conducted by the
Company and such Subsidiaries.
7.12. Lawful Operations, etc. The Company and each of
its Subsidiaries (i) holds all necessary federal, state and local
governmental licenses, registrations, certifications, permits and
authorizations necessary to conduct its business, and (ii) is in
full compliance with all material requirements imposed by law,
regulation or rule, whether federal, state or local, which are
applicable to it, its operations, or its properties and assets,
including without limitation, applicable requirements of
Environmental Laws, except for any failure to obtain and maintain
in effect, or noncompliance, which, individually or in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect.
7.13. Environmental Matters. (a) The Company and each
of its Subsidiaries is in compliance with all Environmental Laws
governing its business except to the extent that any such failure
to comply (together with any resulting penalties, fines or
forfeitures) would not reasonably be expected to have a Material
Adverse Effect. All licenses, permits, registrations or approvals
required for the business of the Company and each of its
Subsidiaries, as conducted as of the Closing Date, under any
Environmental Law have been secured and the Company and each of
its Subsidiaries is in substantial compliance therewith, except
for such licenses, permits, registrations or approvals the
failure to secure or to comply therewith is not reasonably likely
to have a Material Adverse Effect. Neither the Company nor any of
its Subsidiaries has received written notice, or otherwise knows,
that it is in any respect in noncompliance with, breach of or
default under any applicable writ, order, judgment, injunction,
or decree to which the Company or such Subsidiary is a party or
which would affect the ability of the Company or such Subsidiary
to operate any real property and no event has occurred and is
continuing which, with the passage of time or the giving of
notice or both, would
<PAGE>
constitute noncompliance, breach of or default thereunder, except
in each such case, such noncompliance, breaches or defaults as
would not reasonably be expected to, in the aggregate, have a
Material Adverse Effect. There are as of the Closing Date no
Environmental Claims pending or, to the best knowledge of the
Company, threatened wherein an unfavorable decision, ruling or
finding would reasonably be expected to have a Material Adverse
Effect. There are no facts, circumstances, conditions or
occurrences on any Real Property now or at any time owned, leased
or operated by the Company or any of its Subsidiaries or on any
property adjacent to any such Real Property, which are known by
the Company or as to which the Company or any such Subsidiary has
received written notice, that could reasonably be expected (i) to
form the basis of an Environmental Claim against the Company or
any of its Subsidiaries or any Real Property of the Company or
any of its Subsidiaries, or (ii) to cause such Real Property to
be subject to any restrictions on the ownership, occupancy, use
or transferability of such Real Property under any Environmental
Law, except in each such case, such Environmental Claims or
restrictions that individually or in the aggregate would not
reasonably be expected to have a Material Adverse Effect.
(b) Hazardous Materials have not at any time been (i)
generated, used, treated or stored on, or transported to or from,
any Real Property of the Company or any of its Subsidiaries or
(ii) released on any such Real Property, in each case where such
occurrence or event is not in compliance with Environmental Laws
and is reasonably likely to have a Material Adverse Effect.
7.14. Compliance with ERISA. Compliance by the Company
with the provisions hereof and Loans contemplated hereby will not
involve any prohibited transaction within the meaning of ERISA or
section 4975 of the Code. The Company and each of its
Subsidiaries, (i) has fulfilled all obligations under minimum
funding standards of ERISA and the Code with respect to each Plan
that is not a Multiemployer Plan or a Multiple Employer Plan,
(ii) has satisfied all respective contribution obligations in
respect of each Multiemployer Plan and each Multiple Employer
Plan, (iii) is in compliance in all material respects with all
other applicable provisions of ERISA and the Code with respect to
each Plan, each Multiemployer Plan and each Multiple Employer
Plan, and (iv) has not incurred any liability under the Title IV
of ERISA to the PBGC with respect to any Plan, any Multiemployer
Plan, any Multiple Employer Plan, or any trust established
thereunder. No Plan or trust created thereunder has been
terminated, and there have been no Reportable Events, with
respect to any Plan or trust created thereunder or with respect
to any Multiemployer Plan or Multiple Employer Plan, which
termination or Reportable Event will or could result in the
termination of such Plan, Multiemployer Plan or Multiple Employer
Plan and give rise to a material liability of the Company or any
ERISA Affiliate in respect thereof. Neither the Company nor any
ERISA Affiliate is at the date hereof, or has been
<PAGE>
at any time within the two years preceding the date hereof, an
employer required to contribute to any Multiemployer Plan or
Multiple Employer Plan, or a "contributing sponsor" (as such term
is defined in section 4001 of ERISA) in any Multiemployer Plan or
Multiple Employer Plan, except that the Company and/or one or
more of the other Co-Borrowers is and has been a contributor to a
Multiple Employer Plan (see the disclosure in the footnotes to
the Company's annual financial statements; as a matter of
information, the contribution in 1998 was approximately
$400,000). Neither the Company nor any ERISA Affiliate has any
contingent liability with respect to any post-retirement "welfare
benefit plan" (as such term is defined in ERISA) except as has
been disclosed to the Lenders in writing.
7.15. Intellectual Property, etc. The Company and each
of its Subsidiaries has obtained or has the right to use all
material patents, trademarks, servicemarks, trade names,
copyrights, licenses and other rights with respect to the
foregoing necessary for the present and planned future conduct of
its business, without any known conflict with the rights of
others, except for such patents, trademarks, servicemarks, trade
names, copyrights, licenses and rights, the loss of which, and
such conflicts, which in any such case individually or in the
aggregate would not reasonably be expected to have a Material
Adverse Effect.
7.16. Investment Company Act, etc. Neither the Company
nor any of its Subsidiaries is subject to regulation with respect
to the creation or incurrence of Indebtedness under the
Investment Company Act of 1940, as amended, the Interstate
Commerce Act, as amended, the Federal Power Act, as amended, the
Public Utility Holding Company Act of 1935, as amended, or any
applicable state public utility law.
7.17. Burdensome Contracts; Labor Relations. Neither
the Company nor any of its Subsidiaries (i) is subject to any
burdensome contract, agreement, corporate restriction, judgment,
decree or order, (ii) is a party to any labor dispute affecting
any bargaining unit or other group of employees generally, (iii)
is subject to any material strike, slow down, workout or other
concerted interruptions of operations by employees of the Company
or any Subsidiary, whether or not relating to any labor
contracts, (iv) is subject to any significant pending or, to the
knowledge of the Company, threatened, unfair labor practice
complaint, before the National Labor Relations Board, and (v) is
subject to any significant pending or, to the knowledge of the
Company, threatened, grievance or significant arbitration
proceeding arising out of or under any collective bargaining
agreement, (vi) is subject to any significant pending or, to the
knowledge of the Company, threatened, significant strike, labor
dispute, slowdown or stoppage, or (vii) is, to the knowledge of
the Company, involved or subject to any union representation
organizing or certification matter with respect to the employees
of the Company or any of its Subsidiaries, except (with respect
to any matter specified in any of the above clauses), for such
matters as, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect.
<PAGE>
7.18. Existing Indebtedness. Annex III sets forth a
true and complete list, as of the date or dates set forth
therein, of all Indebtedness of the Company and each of its
Subsidiaries, on a consolidated basis, which (i) has an
outstanding principal amount of at least $5,000,000, or may be
incurred pursuant to existing commitments or lines of credit or
(ii) is secured by any Lien on any property of the Company or any
Subsidiary, and which will be outstanding on the Closing Date
after giving effect to the initial Borrowing hereunder, other
than the Indebtedness created under the Credit Documents (all
such Indebtedness, whether or not in a principal amount meeting
such threshold and required to be so listed on Annex III, herein
the "Existing Indebtedness"). The Company has provided to the
Administrative Agent prior to the date of execution hereof true
and complete copies (or summary descriptions) of all agreements
and instruments governing the Indebtedness listed on Annex III
(the "Existing Indebtedness Agreements").
7.19. Year 2000 Problem. The Co-Borrowers and their
respective Subsidiaries have reviewed the areas within their
business and operations which could be adversely affected by, and
have developed or are developing a program to address on a timely
basis the "Year 2000 Problem" (that is, the risk that computer
applications used by the Company and its Subsidiaries may be
unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31,
1999). Based on such review and program, the Co-Borrowers
reasonably believe that the "Year 2000 Problem" will not have a
Material Adverse Effect.
7.20. True and Complete Disclosure. All factual
information (taken as a whole) heretofore or contemporaneously
furnished by or on behalf of the Company or any of its
Subsidiaries in writing to the Administrative Agent or any Lender
for purposes of or in connection with this Agreement or any
transaction contemplated herein is, and all other such factual
information (taken as a whole) hereafter furnished by or on
behalf of such person in writing to any Lender will be, true and
accurate in all material respects on the date as of which such
information is dated or certified and not incomplete by omitting
to state any material fact necessary to make such information
(taken as a whole) not misleading at such time in light of the
circumstances under which such information was provided, except
that any such future information consisting of financial
projections prepared by management of the Company is only
represented herein as being based on good faith estimates and
assumptions believed by such persons to be reasonable at the time
made, it being recognized by the Lenders that such projections as
to future events are not to be viewed as facts and that actual
results during the period or periods covered
<PAGE>
by any such projections may differ materially from the projected
results. As of the Effective Date, there is no fact known to the
Company or any of its Subsidiaries which has, or could reasonably
be expected to have, a Material Adverse Effect which has not
theretofore been disclosed in writing to the Lenders.
SECTION 8. AFFIRMATIVE COVENANTS.
Each Co-Borrower hereby covenants and agrees that so long as
this Agreement is in effect and until such time as the Total
Commitment has been terminated, no Notes are outstanding and the
Loans, together with interest, Fees and all other Obligations
hereunder, have been paid in full:
8.1. Reporting Requirements. The Company will furnish to
each Lender and the Administrative Agent:
(a) Annual Financial Statements. As soon as available
and in any event within 100 days after the close of each
fiscal year of the Company, the consolidated balance sheets
of the Company and its consolidated Subsidiaries as at the
end of such fiscal year and the related consolidated
statements of income, of partner's equity and of cash flows
for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year, all in reasonable
detail and accompanied by the opinion with respect to such
consolidated financial statements of independent public
accountants of recognized national standing selected by the
Company, which opinion shall be unqualified and shall (i)
state that such accountants audited such consolidated
financial statements in accordance with generally accepted
auditing standards, that such accountants believe that such
audit provides a reasonable basis for their opinion, and
that in their opinion such consolidated financial statements
present fairly, in all material respects, the consolidated
financial position of the Company and its consolidated
subsidiaries as at the end of such fiscal year and the
consolidated results of their operations and cash flows for
such fiscal year in conformity with generally accepted
accounting principles, or (ii) contain such statements as
are customarily included in unqualified reports of
independent accountants in conformity with the
recommendations and requirements of the American Institute
of Certified Public Accountants (or any successor
organization).
(b) Quarterly Financial Statements. As soon as
available and in any event within 50 days after the close of
each of the first three quarterly accounting periods in each
fiscal year of the Company, the unaudited condensed
consolidated balance sheets of the Company and its
consolidated Subsidiaries as at the end of such quarterly
period and the related unaudited condensed consolidated
statements of income and of cash flows for such quarterly
<PAGE>
period or for the portion of the fiscal year ended with such
quarterly period, and setting forth, in the case of such
unaudited consolidated statements of income and of cash
flows, comparative figures for the related periods in the
prior fiscal year, and which consolidated financial
statements shall be certified on behalf of the Company by
the Chief Financial Officer or other Authorized Officer of
the Company, subject to changes resulting from normal year-
end audit adjustments.
(c) Officer's Compliance Certificates. At the time of
the delivery of the financial statements provided for in
sections 8.1(a) and (b), a certificate on behalf of the
Company of the Chief Financial Officer or other Authorized
Officer of the Company to the effect that, to the best
knowledge of the Company, no Default or Event of Default
exists or, if any Default or Event of Default does exist,
specifying the nature and extent thereof, which certificate
shall set forth the calculations required to determine the
Consolidated EBITDA/Interest Ratio and establish compliance
with the provisions of sections 9.4(c), 9.5(p) and sections
9.6 through 9.8, inclusive, of this Agreement, including an
identification of the amounts of any financial items of
persons or business units acquired or disposed of by the
Company for any periods prior to the date of acquisition
which are used in making such calculations.
(d) Notice of Default. Promptly, and in any event
within three Business Days after the Company or any of its
Subsidiaries obtains knowledge thereof, notice of the
occurrence of any event which constitutes a Default or Event
of Default, which notice shall specify the nature thereof,
the period of existence thereof and what action the Company
proposes to take with respect thereto.
(e) ERISA. Promptly, and in any event within 10 days
after the Company, any Subsidiary of the Company or any
ERISA Affiliate knows of the occurrence of any of the
following, the Company will deliver to each of the Lenders a
certificate on behalf of the Company of an Authorized
Officer of the Company setting forth the full details as to
such occurrence and the action, if any, that the Company,
such Subsidiary or such ERISA Affiliate is required or
proposes to take, together with any notices required or
proposed to be given to or filed with or by the Company, the
Subsidiary, the ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto:
(i) that a Reportable Event has occurred with
respect to any Plan;
<PAGE>
(ii) the institution of any steps by the Company,
any ERISA Affiliate, the PBGC or any other person to
terminate any Plan;
(iii) the institution of any steps by the
Company or any ERISA Affiliate to withdraw from any
Plan;
(iv) the institution of any steps by the Company
or any Subsidiary to withdraw from any Multiemployer
Plan or Multiple Employer Plan, if such withdrawal
could result in withdrawal liability (as described in
Part 1 of Subtitle E of Title IV of ERISA) in excess of
$1,000,000;
(v) a non-exempt "prohibited transaction" within
the meaning of section 406 of ERISA in connection with
any Plan;
(vi) that a Plan has an Unfunded Current Liability
exceeding $1,000,000;
(vii) any material increase in the contingent
liability of the Company or any Subsidiary with respect
to any post-retirement welfare liability; or
(viii) the taking of any action by, or the
threatening of the taking of any action by, the
Internal Revenue Service, the Department of Labor or
the PBGC with respect to any of the foregoing.
(f) Environmental Matters. Promptly upon, and in any
event within 10 Business Days after, an officer of the
Company obtains actual knowledge thereof, notice of any of
the following:
(i) any pending, or threatened (in writing),
Environmental Claim against the Company or any of its
Subsidiaries or any Real Property at any time owned or
operated by the Company or any of its Subsidiaries,
which involves any reasonable likelihood (in the
Company's reasonable judgment) of resulting in a
Material Adverse Effect: or
(ii) any condition or occurrence on or arising
from any particular Real Property at any time owned or
operated by the Company or any of its Subsidiaries
that, in the Company's reasonable judgment, will
require clean-up, removal or other remediation
expenditures (including Consolidated Capital
Expenditures) by the Company and its Subsidiaries of
more than $1,000,000 to achieve substantial compliance
with Environmental Laws.
All such notices shall describe in reasonable detail the
nature of the Environmental Claim, condition or occurrence
and the Company's or such Subsidiary's proposed response
thereto.
<PAGE>
(g) Determination of Taxability. Promptly upon any
election by the Company, or the receipt of any notice or
other communication from the Internal Revenue Service, which
constitutes, or might reasonably give rise to, a
Determination of Taxability, copies of all relevant
documentation related thereto, and a notice from the Company
which refers specifically to the prepayment obligations of
the Company under section 5.2(c) hereof.
(h) SEC Reports and Registration Statements. Promptly
upon transmission thereof or other filing with the SEC,
copies of all registration statements (other than the
exhibits thereto and any registration statement on Form S-8
or its equivalent) and annual, quarterly or current reports
that the Company or any of its Subsidiaries files with the
SEC.
(i) Other Information. With reasonable promptness,
such other information or documents (financial or otherwise)
relating to the Company or any of its Subsidiaries as any
Lender may reasonably request from time to time.
8.2. Books, Records and Inspections. The Company will, and
will cause each of its Subsidiaries to, (i) keep proper books of
record and account, in which full and correct entries shall be
made of all financial transactions and the assets and business of
the Company or such Subsidiaries, as the case may be, in
accordance with GAAP, in the case of the Company, or which are
reconcilable to a GAAP presentation, in the case of any
Subsidiary; and (ii) permit, upon at least five Business Days'
notice to the Chief Financial Officer or any other Authorized
Officer of the Company, officers and designated representatives
of the Administrative Agent or any of the Lenders to visit and
inspect any of the properties or assets of the Company and any of
its Subsidiaries in whomsoever's possession (but only to the
extent the Company or such Subsidiary has the right to do so to
the extent in the possession of another person), and to examine
the books of account of the Company and any of its Subsidiaries
and discuss the affairs, finances and accounts of the Company and
of any of its Subsidiaries with, and be advised as to the same
by, its and their officers and independent accountants and
independent actuaries, if any, all at such reasonable times and
intervals and to such reasonable extent as the Administrative
Agent or any of the Lenders may request.
8.3. Insurance. The Company will, and will cause each of
its Subsidiaries to, (i) maintain insurance coverage by such
insurers and in such forms and amounts and against such risks as
are generally consistent with the insurance coverage maintained
by the Company and its Subsidiaries at the date hereof, and (ii)
forthwith upon any Lender's written request, furnish to such
Lender such information about such insurance as such Lender may
from time to time reasonably request, which information shall be
prepared in form and detail satisfactory to such Lender and
certified by an Authorized Officer of the Company.
<PAGE>
8.4. Payment of Taxes and Claims. The Company will pay and
discharge, and will cause each of its Subsidiaries to pay and
discharge, all taxes, assessments and governmental charges or
levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which penalties
attach thereto, and all lawful claims which, if unpaid, might
become a Lien or charge upon any properties of the Company or any
of its Subsidiaries; provided that neither the Company nor any of
its Subsidiaries shall be required to pay any such tax,
assessment, charge, levy or claim which is being contested in
good faith and by proper proceedings if it has maintained
adequate reserves with respect thereto in accordance with GAAP.
8.5. Corporate Franchises. The Company will do, and will
cause each of its Subsidiaries to do, or cause to be done, all
things necessary to preserve and keep in full force and effect
its corporate or other organizational existence, rights,
authority and franchises, provided that nothing in this section
8.5 shall be deemed to prohibit (i) any transaction permitted by
section 9.2; (ii) the termination of existence of any Subsidiary
if (A) the Company determines that such termination is in its
best interest and (B) such termination is not adverse in any
material respect to the Lenders; or (iii) the loss of any rights,
authorities or franchises if the loss thereof, in the aggregate,
could not reasonably be expected to have a Material Adverse
Effect.
8.6. Good Repair. The Company will, and will cause each of
its Subsidiaries to, ensure that its material properties and
equipment used or useful in its business in whomsoever's
possession they may be, are kept in good repair, working order
and condition, normal wear and tear excepted, and that from time
to time there are made in such properties and equipment all
needful and proper repairs, renewals, replacements, extensions,
additions, betterments and improvements, thereto, to the extent
and in the manner customary for companies in similar businesses.
8.7. Compliance with Statutes, etc. The Company will, and
will cause each of its Subsidiaries to, comply, in all material
respects, with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all governmental
bodies, domestic or foreign, in respect of the conduct of its
business and the ownership of its property, other than those (i)
being contested in good faith by appropriate proceedings, as to
which adequate reserves are established to the extent required
under GAAP, and (ii) the noncompliance with which would not have,
and which would not be reasonably expected to have, a Material
Adverse Effect or a material adverse effect on the ability of the
Company to perform its obligations under any Credit Document.
<PAGE>
8.8. Compliance with Environmental Laws. Without limitation
of the covenants contained in section 8.7 hereof:
(a) The Company will, and will cause each of its
Subsidiaries to, (i) comply, in all material respects, with
all Environmental Laws applicable to the ownership, lease or
use of all Real Property now or hereafter owned, leased or
operated by the Company or any of its Subsidiaries, and
promptly pay or cause to be paid all costs and expenses
incurred in connection with such compliance, except for such
noncompliance as would not have, and which would not be
reasonably expected to have, a Material Adverse Effect or a
material adverse effect on the ability of the Company to
perform its obligations under any Credit Document; and (ii)
keep or cause to be kept all such Real Property free and
clear of any Liens imposed pursuant to such Environmental
Laws which are not permitted under section 9.3.
(b) Without limitation of the foregoing, if the
Company or any of its Subsidiaries shall generate, use,
treat, store, release or dispose of, or permit the
generation, use, treatment, storage, release or disposal of,
Hazardous Materials on any Real Property now or hereafter
owned, leased or operated by the Company or any of its
Subsidiaries, or transport or permit the transportation of
Hazardous Materials to or from any such Real Property, any
such action shall be effected only in the ordinary course of
business and in any event in compliance, in all material
respects, with all Environmental Laws applicable thereto,
except for such noncompliance as would not have, and which
would not be reasonably expected to have, a Material Adverse
Effect or a material adverse effect on the ability of the
Company to perform its obligations under any Credit
Document.
(c) If required to do so under any applicable order of
any governmental agency, the Company will undertake, and
cause each of its Subsidiaries to undertake, any clean up,
removal, remedial or other action necessary to remove and
clean up any Hazardous Materials from any Real Property
owned, leased or operated by the Company or any of its
Subsidiaries in accordance with, in all material respects,
the requirements of all applicable Environmental Laws and in
accordance with, in all material respects, such orders of
all governmental authorities, except (i) to the extent that
the Company or such Subsidiary is contesting such order in
good faith and by appropriate proceedings and for which
adequate reserves have been established to the extent
required by GAAP, or (ii) for such noncompliance as would
not have, and which would not be reasonably expected to
have, a Material Adverse Effect or a material adverse effect
on the ability of the Company to perform its obligations
under any Credit Document.
<PAGE>
8.9. Fiscal Years, Fiscal Quarters. The Company will, for
consolidated financial reporting purposes, continue to use
December 31 as the end of its fiscal year and its current
methodology for determining the length of its fiscal quarters. If
the Company shall change any of its Subsidiaries' fiscal years or
fiscal quarters (other than the fiscal year or fiscal quarters of
a person which becomes a Subsidiary, made at the time such person
becomes a Subsidiary, to conform to the Company's fiscal year and
fiscal quarters or to conform to the fiscal year or fiscal
quarters which the Company generally utilizes for its
Subsidiaries), the Company will promptly, and in any event within
30 days following any such change, deliver a notice to the
Administrative Agent and the Lenders describing such change and
any material accounting entries made in connection therewith and
stating whether such change will have any impact upon any
financial computations to be made hereunder, and if any such
impact is foreseen, describing in reasonable detail the nature
and extent of such impact. If the Required Lenders determine that
any such change will have any impact upon any financial
computations to be made hereunder which is adverse to the
Lenders, the Company will, if so requested by the Administrative
Agent, enter into an amendment to this Agreement, in form and
substance satisfactory to the Administrative Agent and the
Required Lenders, modifying any of the financial covenants or
related provisions hereof in such manner as the Required Lenders
determine is necessary to eliminate such adverse effect.
8.10. Certain Subsidiaries to Enter into or Join in
Subsidiary Guaranty. (a) In the event that at any time after
the Closing Date
(x) the Company has any Material Subsidiary (other
than a Foreign Subsidiary as to which section 8.10(b)
applies) which is not at the time a Co-Borrower or a party
to the Subsidiary Guaranty, or
(y) an Event of Default shall have occurred and be
continuing and the Borrower has any Subsidiary which is not
at the time a Co-Borrower or a party to the Subsidiary
Guaranty,
the Company will notify the Administrative Agent in writing of
such event, identifying the Subsidiary in question and referring
specifically to the rights of the Administrative Agent and the
Lenders under this section. The Company will, within 30 days
following request therefor from the Administrative Agent (who may
give such request on its own initiative or upon request by the
Required Lenders), cause such Subsidiary to deliver to the
Administrative Agent, in sufficient quantities for the Lenders,
(i) counterparts of a joinder supplement, satisfactory in form
and substance to the Administrative Agent and the Required
Lenders, duly executed by such Subsidiary, pursuant to which such
Subsidiary joins in the Subsidiary Guaranty as a guarantor
thereunder, and (ii) if such Subsidiary is a corporation,
resolutions of the Board of Directors of such Subsidiary,
certified by the Secretary or an Assistant Secretary of such
Subsidiary as duly adopted and in full force and effect,
authorizing the execution and delivery of such joinder
supplement, or if such Subsidiary is not a corporation, such
other evidence of the authority of such Subsidiary to execute
such joinder supplement as the Administrative Agent may
reasonably request.
<PAGE>
(b) Notwithstanding the foregoing provisions of this
section 8.10, the Company shall not, unless an Event of Default
shall have occurred and be continuing, be required to cause a
Foreign Subsidiary to join in the Subsidiary Guaranty if (i) to
do so would subject the Company or its partners to liability for
additional United States income taxes by virtue of section 956 of
the Code in an amount the Company considers material, and (ii)
the Company provides the Administrative Agent, within the 30-day
period referred to in section 8.10(a), with documentation,
including computations prepared by the Company's internal tax
officer, its independent accountants or tax counsel, acceptable
to the Required Lenders, in support thereof.
8.11. Hedge Agreements, etc. In the event the Company
or any of its Subsidiaries desires to enter into any Hedge
Agreement in order to provide protection to the Company or any
such Subsidiary from fluctuations and other changes in interest
rates and currency exchange rates, the Company or such Subsidiary
will be free to do so, provided that the Company will not, and
will not permit any Subsidiary to, enter into a Hedge Agreement
which exposes the Company or its Subsidiaries to predominantly
speculative risks unrelated to the amount of assets, Indebtedness
or other liabilities intended to be subject to coverage on a
notional basis under all such Hedge Agreements.
8.12. Most Favored Covenant Status, etc. Should any Co-
Borrower at any time after the Effective Date, issue or guarantee
any unsecured Indebtedness denominated in U.S. dollars for money
borrowed or represented by bonds, notes, debentures or similar
securities in an aggregate amount exceeding $5,000,000, to any
lender or group of lenders acting in concert with one another, or
one or more institutional investors, pursuant to a loan
agreement, credit agreement, note purchase agreement, indenture,
guaranty or other similar instrument, which agreement, indenture,
guaranty or instrument, includes affirmative or negative business
or financial covenants (or any events of default or other type of
restriction which would have the practical effect of any
affirmative or negative business or financial covenant,
including, without limitation, any "put" or mandatory prepayment
or redemption of any such Indebtedness upon the occurrence of a
"change of control") which are applicable to any Co-Borrower,
other than those set forth herein or in any of the other Credit
Documents, the Company shall promptly so notify the
Administrative Agent and the Lenders and, if the Administrative
Agent shall so request by written notice to the Company (after a
determination has been made by the Required Lenders that any of
the above-referenced documents or instruments contain any such
provisions, which either individually or in the aggregate, are
more favorable to the holders of such unsecured Indebtedness than
any of the provisions set forth herein), the Co-Borrowers, the
Administrative Agent and the Lenders shall promptly amend this
Agreement to incorporate some or all of such provisions, in the
discretion of the Administrative Agent and the Required Lenders,
into this Agreement and, to the extent necessary and reasonably
desirable to the Administrative Agent and the Required Lenders,
into any of the other Credit Documents, all at the election of
the Administrative Agent and the Required Lenders.
<PAGE>
8.13. Addition and Deletion of Co-Borrowers. Whenever
the Company determines that it desires for a Wholly-Owned
Subsidiary which is not already a Co-Borrower to become a party
hereto as a Co-Borrower, it will cause such Subsidiary to deliver
to the Administrative Agent an Election to Participate for such
Subsidiary and such other evidence of the authority of such
Subsidiary to become a Co-Borrower as the Administrative Agent
may reasonably request. The addition of a Subsidiary as a Co-
Borrower (an "Additional Co-Borrower") shall be subject to the
approval of the Administrative Agent and the Required Lenders in
their sole discretion, and such approval shall be evidenced, so
far as the Co-Borrowers are concerned, only by the signed written
acceptance by the Administrative Agent of an Election to
Participate in the space provided at the end of the form of
Election to Participate attached as an Exhibit hereto. No
Election to Participate shall be valid or effective for any
purpose until so accepted in writing by the Administrative Agent.
If requested by the Administrative Agent (acting on instructions
from the Required Lenders) at any time, the Company will take
such actions as may be necessary to add any Wholly-Owned
Subsidiary as an Additional Co-Borrower. If at any time the
Company determines that a Subsidiary should no longer be a Co-
Borrower, it may, with the prior written consent of the
Administrative Agent and all of the Lenders, cause such Co-
Borrower to deliver to the Administrative Agent an Election to
Terminate with respect to such Borrowing Subsidiary. No such
Election to Terminate shall be valid or effective for any purpose
until accepted by the Administrative Agent and such acceptance
evidenced by the signature of the Administrative Agent in the
space provided at the end of the form of Election to Terminate
attached as an Exhibit hereto.
8.14. Concentration of Assets. The Company covenants
and agrees that (i) the consolidated total assets of the Company
and Knott's Berry Farms shall at all times constitute at least
70% of the consolidated total assets of the Company and its
Subsidiaries and (ii) the unconsolidated total assets of the
Company shall at all times constitute at least 40% of the
consolidated total assets of the Company and its Subsidiaries.
8.15. Senior Debt. The Co-Borrowers will at all times
ensure that (a) the claims of the Lenders in respect of the
Obligations of each Co-Borrower will not be subordinate to, and
will in all respects at least rank pari passu with, the claims of
every other senior unsecured creditor of such Co-Borrower, and
(b) any Indebtedness subordinated in any manner to the claims of
any other senior unsecured creditor of any Co-Borrower will be
subordinated in like manner to such claims of the Lenders.
<PAGE>
SECTION 9. NEGATIVE COVENANTS.
Each Co-Borrower hereby covenants and agrees that on the
Effective Date and thereafter for so long as this Agreement is in
effect and until such time as the Total Commitment has been
terminated, no Notes remain outstanding and the Loans, together
with interest, Fees and all other Obligations incurred hereunder
are paid in full:
9.1. Changes in Business. Neither the Company nor any of
its Subsidiaries will engage in any business if, as a result, the
general nature of the business, taken on a consolidated basis,
which would then be engaged in by the Company and its
Subsidiaries, would be substantially changed from the general
nature of the business engaged in by the Company and its
Subsidiaries on the date hereof.
9.2. Consolidation, Merger, Acquisitions, Sale of Assets,
etc. The Company will not, and will not permit any Subsidiary
to, (1) wind up, liquidate or dissolve its affairs, (2) enter
into any transaction of merger or consolidation, (3) sell or
otherwise dispose of any of its property or assets (but excluding
any sale or disposition of inventory, or obsolete or excess
furniture, fixtures, equipment or other property, in the ordinary
course of business), (4) purchase, lease or otherwise acquire on
a going concern basis (in one transaction or a series of related
transactions) all or any part of the facilities and business
operated by any person which is not a Subsidiary of the Company
(excluding any purchases, leases or other acquisitions of
property or assets in, and for use in, the ordinary course of
business), (5) acquire any such person or any equity securities
of such person, or (6) agree to do any of the foregoing at any
future time, except that the following shall be permitted:
(a) Permitted Investments, etc.: the loans, advances
and investments permitted pursuant to section 9.5;
(b) Certain Intercompany Mergers, etc.: if no Default
or Event of Default shall have occurred and be continuing or
would result therefrom, (i) the merger, consolidation or
amalgamation of any Wholly-Owned Subsidiary with or into the
Company or another Wholly-Owned Subsidiary, so long as in
any merger, consolidation or amalgamation involving the
Company it is the surviving or continuing or resulting
corporation, or the liquidation or dissolution of any
Subsidiary, or (ii) the transfer or other disposition of any
property by the Company to any Wholly-Owned Subsidiary or by
any Wholly-Owned Subsidiary to the Company or any other
Wholly-Owned Subsidiary of the Company;
(c) Permitted Acquisitions: if no Default or Event of
Default shall have occurred and be continuing or would
result therefrom, the Company or any Subsidiary may make
Permitted
<PAGE>
Acquisitions, provided that at least five Business Days
prior to the date of any such Permitted Acquisition which
involves consideration (including the amount of any assumed
Indebtedness and (without duplication) any outstanding
Indebtedness of any person which becomes a Subsidiary as a
result of such Permitted Acquisition) of $10,000,000 or
more, the Company shall have delivered to the Administrative
Agent an officer's certificate executed on behalf of the
Company by an Authorized Officer of the Company, which
certificate shall (A) contain the date such Permitted
Acquisition is scheduled to be consummated, (B) contain the
estimated purchase price of such Permitted Acquisition, (C)
contain a description of the property and/or assets acquired
in connection with such Permitted Acquisition, (D)
demonstrate that at the time of making any such Permitted
Acquisition the covenants contained in sections 9.6 through
9.8 shall be complied with on a pro forma basis as if the
properties and/or assets so acquired had been owned by the
Company, and the Indebtedness assumed and/or incurred to
acquire and/or finance same has been outstanding, for the
four fiscal quarters month period immediately preceding such
acquisition for which financial statements have been
delivered to the Lenders (without giving effect to any
credit for unobtained or unrealized gains or any adjustments
to overhead in connection with any such Permitted
Acquisition), and (E) if requested by the Administrative
Agent, attach thereto a true and correct copy of the then
proposed purchase agreement, merger agreement or similar
agreement, partnership agreement and/or other contract
entered into in connection with such Permitted Acquisition;
(d) Permitted Dispositions: if no Default or Event of
Default shall have occurred and be continuing or would
result therefrom, the Company or any of its Subsidiaries may
(i) sell any land, building or other property (including any
related receivables or other intangible assets) to any
person which is not a Subsidiary of the Company, or (ii)
sell the entire capital stock (or other equity interests)
and Indebtedness of any Subsidiary owned by the Company or
any other Subsidiary to any person which is not a Subsidiary
of the Company, or (iii) permit any Subsidiary to be merged
or consolidated with a person which is not an Affiliate of
the Company, or (iv) consummate any other Asset Sale with a
person who is not a Subsidiary of the Company; provided that
(A) the consideration for such transaction represents fair
value (as determined by management of the Company), and at
least 90% of such consideration consists of cash, (B) the
cumulative aggregate consideration for all such transactions
completed in any fiscal year does not exceed $25,000,000,
and (C) in the case of any such transaction involving
consideration in excess of $10,000,000, at least five
Business Days prior to the date of completion of such
transaction the Company shall have delivered to the
Administrative Agent an officer's certificate
<PAGE>
executed on behalf of the Company by an Authorized Officer
of the Company, which certificate shall contain a
description of the proposed transaction, the date such
transaction is scheduled to be consummated, the estimated
purchase price or other consideration for such transaction,
financial information pertaining to compliance with the
preceding clauses (A) and (B), and which shall (if requested
by the Administrative Agent) include a certified copy of the
draft or definitive documentation pertaining thereto; and
(e) Leases: the Company or any of its Subsidiaries
may enter into leases of property or assets not constituting
Permitted Acquisitions which are not otherwise in violation
of this Agreement.
9.3. Liens. The Company will not, and will not permit any
of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien upon or with respect to any property or assets of any
kind (real or personal, tangible or intangible) of the Company or
any such Subsidiary whether now owned or hereafter acquired, or
sell any such property or assets subject to an understanding or
agreement, contingent or otherwise, to repurchase such property
or assets (including sales of accounts receivable or notes with
or without recourse to the Company or any of its Subsidiaries,
other than for purposes of collection of delinquent accounts in
the ordinary course of business) or assign any right to receive
income, or file or permit the filing of any financing statement
under the UCC or any other similar notice of Lien under any
similar recording or notice statute, except that the foregoing
restrictions shall not apply to:
(a) Existing Liens, etc.: Liens (i) in existence on
the Closing Date which are listed, and the Indebtedness
secured thereby and the property subject thereto on the
Closing Date described, in Annex IV, or (ii) arising out of
the refinancing, extension, renewal or refunding of any
Indebtedness secured by any such Liens, provided that the
principal amount of such Indebtedness is not increased and
such Indebtedness is not secured by any additional assets;
(b) Purchase Money Liens and Liens on Acquired
Properties: Liens which
(i) are placed upon equipment or machinery used
in the ordinary course of business of the Company or
any Subsidiary at the time of (or within 180 days
after) the acquisition thereof by the Company or any
such Subsidiary to secure Indebtedness incurred to pay
or finance all or a portion of the purchase price
thereof, provided that the Lien encumbering the
equipment or machinery so acquired does not encumber
any other asset of the Company or any such Subsidiary;
or
<PAGE>
(ii) are existing on property or other assets at
the time acquired by the Company or any Subsidiary or
on assets of a person at the time such person first
becomes a Subsidiary of the Company; provided that (A)
any such Liens were not created at the time of or in
contemplation of the acquisition of such assets or
person by the Company or any of its Subsidiaries; (B)
in the case of any such acquisition of a person, any
such Lien attaches only to the property and assets of
such person; and (C) in the case of any such
acquisition of property or assets by the Company or any
Subsidiary, any such Lien attaches only to the property
and assets so acquired and not to any other property or
assets of the Company or any Subsidiary;
provided that (1) the Indebtedness secured by any such Lien
does not exceed 100% of the fair market value of the
property and assets to which such Lien attaches, determined
at the time of the acquisition of such property or asset or
the time at which such person becomes a Subsidiary of the
Company (except in the circumstances described in clause
(ii) above to the extent such Liens constituted customary
purchase money Liens at the time of incurrence and were
entered into in the ordinary course of business), and (2)
the Indebtedness secured thereby is permitted by section
9.4(c);
(c) Certain Tax Liens: Liens for taxes not yet
delinquent or Liens for taxes being contested in good faith
and by appropriate proceedings for which adequate reserves
have been established in accordance with GAAP;
(d) Ordinary Course Liens, etc.: Liens (other than
any Lien imposed by ERISA) incurred or deposits made in the
ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of
social security; and mechanic's Liens, carrier's Liens, and
other Liens to secure the performance of tenders, statutory
obligations, contract bids, government contracts,
performance and return-of-money bonds and other similar
obligations, incurred in the ordinary course of business
(exclusive of obligations in respect of the payment for
borrowed money), whether pursuant to statutory requirements,
common law or consensual arrangements; provided such Liens
do not in the aggregate materially detract from the value of
the property or assets subject thereto or materially impair
the use thereof in the operation of the business of the
Company or any Subsidiary;
(e) Credit Documents: Liens, if any, created by this
Agreement or the other Credit Documents;
<PAGE>
(f) Judgment Liens: Liens arising from judgments,
decrees or attachments in circumstances not constituting an
Event of Default under section 10.1(g);
(g) Leases: Leases or subleases granted to others not
interfering in any material respect with the business of the
Company or any of its Subsidiaries and any interest or title
of a lessor under any lease not in violation of this
Agreement;
(h) Leased Property: Liens arising from financing
statements regarding property subject to leases not in
violation of the requirements of this Agreement, provided
that such Liens are only in respect of the property subject
to, and secure only, the respective lease (and any other
lease with the same or an affiliated lessor); and
(i) Easements and other Encumbrances: easements,
rights-of-way, zoning or deed restrictions, minor
encroachments, defects or irregularities in title and other
similar charges or encumbrances not interfering in any
material respect with the ordinary conduct of the business
of the Company or any of its Subsidiaries considered as an
entirety.
9.4. Indebtedness. The Company will not, and will not
permit any of its Subsidiaries to, contract, create, incur,
assume or suffer to exist any Indebtedness of the Company or any
of its Subsidiaries, except:
(a) Credit Documents: Indebtedness incurred under
this Agreement and the other Credit Documents;
(b) Existing Indebtedness: the Existing Indebtedness
(including Indebtedness incurred pursuant to commitments and
lines of credit described on Annex III); and any
refinancing, extension, renewal or refunding of any such
Existing Indebtedness not involving an increase in the
principal amount thereof or a reduction of more than 10% in
the remaining weighted average life to maturity thereof
(computed in accordance with standard financial practice);
(c) Priority Debt: the following Indebtedness
(collectively, "Priority Debt"):
(i) Indebtedness consisting of Capital Lease
Obligations of the Company and its Subsidiaries,
(ii) Indebtedness secured by a Lien on any
property of the Company or any Subsidiary, and
<PAGE>
(iii) other Indebtedness of Subsidiaries of
the Company (exclusive of Indebtedness owed pursuant to
any of the Credit Documents or to the Company or a
Wholly-Owned Subsidiary of the Company);
provided that at the time of any incurrence thereof after
the date hereof, and after giving effect thereto, (A) no
Event of Default shall have occurred and be continuing or
would result therefrom, (B) the aggregate outstanding
principal amount of Priority Debt referred to in the
foregoing clause (iii) does not exceed $10,000,000, and (C)
the aggregate outstanding principal amount (using
Capitalized Lease Obligations in lieu of principal amount,
in the case of any Capital Lease) of Priority Debt shall not
exceed an amount equal to 10% of the Company's Consolidated
Net Worth as of the end of its most recent fiscal year or
fiscal quarter for which financial statements have been
delivered to the Lenders hereunder;
(d) Hedge Agreements: Indebtedness of the Company or
any Subsidiary under Hedge Agreements;
(e) Intercompany Debt: Indebtedness of the Company to
any of its Subsidiaries, and Indebtedness of any of the
Company's Subsidiaries to the Company or to another
Subsidiary of the Company, in each case to the extent
permitted under section 9.5;
(f) Guaranty Obligations: Guaranty Obligations
permitted under section 9.5; and
(g) Additional Unsecured Debt: additional unsecured
Indebtedness of the Company, to the extent not otherwise
permitted pursuant to the foregoing clauses, provided that
(i) at the time of incurrence thereof, and after giving
effect thereto, no Event of Default shall have occurred and
be continuing or would result therefrom, (ii) Consolidated
Debt shall at no time exceed 70% of Consolidated Total
Capital, and (iii) at all times during a period of at least
45 consecutive days in each rolling twelve month period
Consolidated Debt shall not exceed 60% of Consolidated Total
Capital.
9.5. Advances, Investments, Loans and Guaranty Obligations.
The Company will not, and will not permit any of its Subsidiaries
to, (1) lend money or credit or make advances to any person, (2)
purchase or acquire any stock, obligations or securities of, or
any other interest in, or make any capital contribution to, or
other investment in, any person, (3) create, acquire or hold any
Subsidiary, (4) be or become a party to any joint venture or
partnership, or (5) be or become obligated under any Guaranty
Obligations (other than those created in favor of the Lenders
pursuant to the Credit Documents), except:
(a) the Company or any of its Subsidiaries may invest
in cash and Cash Equivalents;
<PAGE>
(b) any endorsement of a check or other medium of
payment for deposit or collection, or any similar
transaction in the normal course of business;
(c) the Company and its Subsidiaries may acquire and
hold receivables owing to them in the ordinary course of
business and payable or dischargeable in accordance with
customary trade terms;
(d) investments acquired by the Company or any of its
Subsidiaries (i) in exchange for any other investment held
by the Company or any such Subsidiary in connection with or
as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such other investment, or
(ii) as a result of a foreclosure by the Company or any of
its Subsidiaries with respect to any secured investment or
other transfer of title with respect to any secured
investment in default;
(e) loans, advances and investments acquired by the
Company or any of its Subsidiaries in connection with (and
not arising in anticipation of) Permitted Acquisitions or
other transactions permitted by section 9.2;
(f) loans and advances to employees for business-
related travel expenses, moving expenses, costs of
replacement homes and other similar expenses, in each case
incurred in the ordinary course of business, shall be
permitted;
(g) investments in the capital of any Wholly-Owned
Subsidiary which is (i) a Wholly-Owned Subsidiary, and (ii)
not a Foreign Subsidiary;
(h) to the extent not permitted by the foregoing
clauses, existing investments in any Subsidiaries (and any
increases thereof attributable to increases in retained
earnings);
(i) to the extent not permitted by the foregoing
clauses, the existing loans, advances, investments and
guarantees described on Annex V hereto;
(j) any unsecured guaranty by the Company of any
Indebtedness of a Subsidiary permitted by section 9.4, and
any guaranty by any Subsidiary described in section 9.4;
(k) investments of the Company and its Subsidiaries in
Hedge Agreements;
(l) loans and advances by any Subsidiary of any Co-
Borrower to such Co-Borrower or any other Co-Borrower,
provided that the Indebtedness represented thereby
constitutes Subordinated Indebtedness;
<PAGE>
(m) loans and advances by the Company or by any
Subsidiary of the Company to, or other investments in, any
Subsidiary of the Company which is (i) a Subsidiary
Guarantor or a Co-Borrower, and (ii) not a Foreign
Subsidiary;
(n) loans and advances by any Subsidiary of the
Company which is not a Subsidiary Guarantor to, or other
investments by any such Subsidiary in, any other Subsidiary
of the Company which is a Wholly-Owned Subsidiary;
(o) Guaranty Obligations, not otherwise permitted by
the foregoing clauses, of (i) the Company or any Subsidiary
in respect of leases of the Company or any Subsidiary the
entry into which is not prohibited by this Agreement, (ii)
the Company or any Subsidiary in respect of any other person
(other than in respect of (x) Indebtedness for borrowed
money or represented by bonds, notes, debentures or similar
securities, or (y) Indebtedness constituting Capital Leases)
arising as a matter of applicable law because the Company or
such Subsidiary is or is deemed to be a general partner of
such other person, or (iii) the Company or any Subsidiary in
respect of any other person (other than in respect of (x)
Indebtedness for borrowed money or represented by bonds,
notes, debentures or similar securities, or (y) Indebtedness
constituting Capital Leases) arising in the ordinary course
of business;
(p) any other loans, advances, investments (whether in
the form of cash or contribution of property, and if in the
form of a contribution of property, such property shall be
valued for purposes of this clause (o) at the fair value
thereof as reasonably determined by the Company) and
Guaranty Obligations, including, without limitation, in or
to or for the benefit of, Subsidiaries, joint ventures, or
other persons, not otherwise permitted by the foregoing
clauses, made after September 30, 1997 (such loans, advances
and investments, collectively, "Basket Investments", and
such Guaranty Obligations, collectively "Basket Guarantees")
described below: (i) if no Event of Default shall have
occurred and be continuing, or would result therefrom,
Basket Investments of up to an aggregate of $30,000,000,
taking into account the repayment of any loans or advances
comprising such Basket Investments, shall be permitted to be
made, and (ii) if no Event of Default shall have occurred
and be continuing, or would result therefrom, Basket
Guarantees covering up to $25,000,000 aggregate principal
amount of Indebtedness outstanding at any time, shall be
permitted to be incurred.
9.6. Consolidated Debt/Consolidated EBITDA Ratio. The
Company will not at any time permit the ratio of (i) the amount
of its Consolidated Debt at such time to (ii) its Consolidated
EBITDA for the Testing Period most recently ended, to exceed 3.00
to 1.00 at any time.
<PAGE>
9.7. Interest Coverage Ratio. The Company will not permit
its Interest Coverage Ratio for any Testing Period to be less
than 3.50 to 1.00.
9.8. Minimum Consolidated Net Worth. The Company will not
permit its Consolidated Net Worth as of the end of any fiscal
quarter ending after December 31, 1997 to be less than the
Minimum Consolidated Net Worth applicable at such time.
9.9. Transactions with Affiliates. The Company will not,
and will not permit any Subsidiary to, enter into any transaction
or series of transactions with any Affiliate (other than, in the
case of the Company, any Subsidiary, and in the case of a
Subsidiary, the Company or another Subsidiary) other than in the
ordinary course of business of and pursuant to the reasonable
requirements of the Company's or such Subsidiary's business and
upon fair and reasonable terms no less favorable to the Company
or such Subsidiary than would obtain in a comparable arm's-length
transaction with a person other than an Affiliate, except (i)
loans, advances and investments permitted by section 9.5, (ii)
sales of goods to an Affiliate for use or distribution outside
the United States which in the good faith judgment of the Company
complies with any applicable legal requirements of the Code, or
(iii) agreements and transactions with and payments to officers,
directors and equityholders which are either (A) entered into in
the ordinary course of business and not prohibited by any of the
provisions of this Agreement, or (B) entered into outside the
ordinary course of business, approved by the directors or
equityholders of the Company, and not prohibited by any of the
provisions of this Agreement.
9.10. Limitation on Certain Restrictive Agreements. The
Company will not, and will not permit any of its Subsidiaries to,
directly or indirectly, enter into, incur or permit to exist or
become effective, any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (a) the
ability of the Company or any Subsidiary to create, incur or
suffer to exist any Lien upon any of its property or assets as
security for Indebtedness, or (b) the ability of any such
Subsidiary to pay dividends or make any other distributions on
its capital stock or any other interest or participation in its
profits owned by the Company or any Subsidiary of the Company, or
pay any Indebtedness owed to the Company or a Subsidiary of the
Company, or to make loans or advances to the Company or any of
the Company's other Subsidiaries, or transfer any of its property
or assets to the Company or any of the Company's other
Subsidiaries, except for such restrictions existing under or by
reason of (i) applicable law, (ii) this Agreement and the other
Credit Documents, (iii) customary provisions restricting
subletting or assignment of any lease governing a leasehold
interest, (iv) customary provisions restricting assignment of any
licensing agreement entered into in the ordinary course of
business, (v) customary provisions restricting the transfer of
assets subject to Liens permitted under section 9.3(b), (vi)
restrictions which do not limit dividends or
<PAGE>
other distributions by the Company or any of its Subsidiaries
which are contained in the Existing Indebtedness Agreements as in
effect on the Effective Date which relate to any Existing
Indebtedness which will continue outstanding following the
Closing Date, (vii) any document relating to Indebtedness secured
by a Lien permitted by section 9.3, insofar as the provisions
thereof limit grants of junior liens on the assets securing such
Indebtedness, and (viii) any operating lease or Capital Lease,
insofar as the provisions thereof limit grants of a security
interest in, or other assignments of, the related leasehold
interest to any other person.
9.11. Plan Terminations, Minimum Funding, etc. The
Company will not, and will not permit any ERISA Affiliate to, (i)
terminate any Plan or plans so as to result in liability of the
Company or any ERISA Affiliate to the PBGC in excess of
$1,000,000 in the aggregate, (ii) permit to exist one or more
events or conditions which reasonably present a material risk of
the termination by the PBGC of any Plan or Plans with respect to
which the Company or any ERISA Affiliate would, in the event of
such termination, incur liability to the PBGC in excess of
$1,000,000 in the aggregate, or (iii) fail to comply with the
minimum funding standards of ERISA and the Code with respect to
any Plan.
SECTION 10. EVENTS OF DEFAULT.
10.1. Events of Default. The occurrence of any of the
following specified events shall constitute an event of default
hereunder (each an "Event of Default"):
(a) Payments: any Co-Borrower shall (i) default in
the payment when due (whether at maturity, on a date for
prepayment, or otherwise) of any principal of any of the
Loans; or (ii) default, and such default shall continue for
five or more days, in the payment when due of any interest
on the Loans or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
(b) Representations, etc.: any representation,
warranty or statement made by the Company or any other
Credit Party herein or in any other Credit Document or in
any statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove to be
untrue in any material respect on the date as of which made
or deemed made; or
<PAGE>
(c) Certain Covenants: the Co-Borrowers shall default
in the due performance or observance by it of any term,
covenant or agreement contained in sections 9.1 through 9.8,
inclusive, of this Agreement; or
(d) Other Covenants: the Co-Borrowers shall default
in the due performance or observance by it of any term,
covenant or agreement contained in this Agreement or any
other Credit Document, other than those referred to in
section 10.1(a) or (b) or (c) above, and such default is not
remedied within 30 days after the earlier of (i) an officer
of the any Co-Borrower obtaining actual knowledge of such
default and (ii) the Treasury Manager receiving written
notice of such default from the Administrative Agent or the
Required Lenders (any such notice to be identified as a
"notice of default " and to refer specifically to this
paragraph); or
(e) Cross Default Under Other Agreements: the Company
or any of its Subsidiaries shall (i) default in any payment
with respect to any Indebtedness (other than the
Obligations) owed to any Lender, or having an unpaid
principal amount of $15,000,000 or greater, and such default
shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such
Indebtedness, or (ii) default in the observance or
performance of any agreement or condition relating to any
such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto (and all
grace periods applicable to such observance, performance or
condition shall have expired), 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 holders of such Indebtedness (or a trustee or
agent on behalf of such holder or holders) to cause any such
Indebtedness to become due prior to its stated maturity; or
any such Indebtedness of the Company or any of its
Subsidiaries shall be declared to be due and payable, or
shall be required to be prepaid (other than by a regularly
scheduled required prepayment or redemption, prior to the
stated maturity thereof); or
(f) Other Credit Documents: the Subsidiary Guaranty
(once executed and delivered) shall cease for any reason
(other than termination in accordance with its terms) to be
in full force and effect; or any Credit Party shall default
in any payment obligation thereunder; or any Credit Party
shall default in any material respect in the due performance
and observance of any other obligation thereunder and such
default shall continue unremedied for a period of at least
30 days after notice by the Administrative Agent or the
Required Lenders; or any Credit Party shall (or seek to)
disaffirm or otherwise limit its obligations thereunder
otherwise than in strict compliance with the terms thereof;
or
<PAGE>
(g) Judgments: one or more judgments or decrees shall
be entered against the Company and/or any of its
Subsidiaries involving a liability (other than a liability
covered by insurance, as to which the carrier has adequate
claims paying ability and has not reserved its rights) of
$5,000,000 or more in the aggregate for all such judgments
and decrees for the Company and its Subsidiaries) and any
such judgments or decrees shall not have been vacated,
discharged or stayed or bonded pending appeal within 30 days
(or such longer period, not in excess of 60 days, during
which enforcement thereof, and the filing of any judgment
lien, is effectively stayed or prohibited) from the entry
thereof; or
(h) Bankruptcy, etc.: the Company, any other Co-
Borrower, any Subsidiary Guarantor, or any of their
respective Material Subsidiaries, or any general partner or
member of any such person which is a partnership or limited
liability company (the Company and each of such other
persons, each a "Principal Entity") shall commence a
voluntary case concerning itself under Title 11 of the
United States Code entitled "Bankruptcy," as now or
hereafter in effect, or any successor thereto (the
"Bankruptcy Code"); or an involuntary case is commenced
against the Company or any other Principal Entity and the
petition is not controverted within 10 days, or is not
dismissed within 60 days, after commencement of the case; or
a custodian (as defined in the Bankruptcy Code) is appointed
for, or takes charge of, all or substantially all of the
property of the Company or any other Principal Entity; or
the Company or any other Principal Entity commences
(including by way of applying for or consenting to the
appointment of, or the taking of possession by, a
rehabilitator, receiver, custodian, trustee, conservator or
liquidator (collectively, a "conservator") of itself or all
or any substantial portion of its property) any other
proceeding under any reorganization, arrangement, adjustment
of debt, relief of debtors, dissolution, insolvency,
liquidation, rehabilitation, conservatorship or similar law
of any jurisdiction whether now or hereafter in effect
relating to the Company or any other Principal Party; or any
such proceeding is commenced against the Company or any
other Principal Party to the extent such proceeding is
consented to by such person or remains undismissed for a
period of 60 days; or the Company or any other Principal
Party is adjudicated insolvent or bankrupt; or any order of
relief or other order approving any such case or proceeding
is entered; or the Company or any other Principal Party
suffers any appointment of any conservator or the like for
it or any substantial part of its property which continues
undischarged or unstayed for a period of 60 days; or the
Company or any other Principal Party makes a general
assignment for the benefit of creditors; or any corporate
(or similar organizational) action is taken by the Company
or any other Principal party for the purpose of effecting
any of the foregoing; or
<PAGE>
(i) ERISA: (i) any of the events described in clauses
(i) through (viii) of section 8.1(e) shall have occurred; or
(ii) there shall result from any such event or events the
imposition of a lien, the granting of a security interest,
or a liability or a material risk of incurring a liability;
and (iii) any such event or events or any such lien,
security interest or liability, individually, and/or in the
aggregate, in the opinion of the Required Lenders, has had,
or could reasonably be expected to have, a Material Adverse
Effect.
10.2. Acceleration, etc. Upon the occurrence of any
Event of Default, and at any time thereafter, if any Event of
Default shall then be continuing, the Administrative Agent shall,
upon the written request of the Required Lenders, by written
notice to the Treasury Manager, take any or all of the following
actions, without prejudice to the rights of the Administrative
Agent or any Lender to enforce its claims against any Co-Borrower
or some or all of the Co-Borrowers, except as otherwise
specifically provided for in this Agreement (provided that, if an
Event of Default specified in section 10.1(h) shall occur with
respect to the any Co-Borrower, the result which would occur upon
the giving of written notice by the Administrative Agent as
specified in clauses (i) and (ii) below shall occur automatically
without the giving of any such notice): (i) declare the Total
Commitment terminated, whereupon the Commitment of each Lender
shall forthwith terminate immediately without any other notice of
any kind; and (ii) declare the principal of and any accrued
interest in respect of all Loans, and all other Obligations owing
hereunder, to be, whereupon the same shall become, forthwith due
and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Co-Borrowers.
10.3. Application of Liquidation Proceeds. All monies
received by the Administrative Agent or any Lender from the
exercise of remedies hereunder or under the other Credit
Documents or under any other documents relating to this Agreement
shall, unless otherwise required by the terms of the other Credit
Documents or by applicable law, be applied as follows:
(i) first, to the payment of all expenses (to the
extent not paid by the Co-Borrowers) incurred by the
Administrative Agent and the Lenders in connection with the
exercise of such remedies, including, without limitation,
all reasonable costs and expenses of collection, attorneys'
fees, court costs and any foreclosure expenses;
(ii) second, to the payment pro rata of interest then
accrued on the outstanding Loans;
(iii) third, to the payment pro rata of any fees
then accrued and payable to the Administrative Agent or any
Lender under this Agreement in respect of the Loans;
(iv) fourth, to the payment pro rata of the principal
balance then owing on the outstanding Loans;
<PAGE>
(v) fifth, to the payment to the Lenders of any
amounts then accrued and unpaid under sections 2.10, 2.11,
3.5 and 5.4 hereof, and if such proceeds are insufficient to
pay such amounts in full, to the payment of such amounts pro
rata;
(vi) sixth, to the payment pro rata of all other
amounts owed by the Co-Borrowers to the Administrative Agent
or any Lender under this Agreement or any other Credit
Document; and
(vii) finally, any remaining surplus after all of
the Obligations have been paid in full, to the Co-Borrowers
or to whomsoever shall be lawfully entitled thereto.
SECTION 11. THE ADMINISTRATIVE AGENT.
11.1. Appointment. Each Lender hereby irrevocably
designates and appoints KeyBank as Administrative Agent to act as
specified herein and in the other Credit Documents, and each such
Lender hereby irrevocably authorizes KeyBank as the
Administrative Agent for such Lender, to take such action on its
behalf under the provisions of this Agreement and the other
Credit Documents and to exercise such powers and perform such
duties as are expressly delegated to the Administrative Agent by
the terms of this Agreement and the other Credit Documents,
together with such other powers as are reasonably incidental
thereto. The Administrative Agent agrees to act as such upon the
express conditions contained in this section 11. Notwithstanding
any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein or in
the other Credit Documents, nor any fiduciary relationship with
any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be
read into this Agreement or otherwise exist against the
Administrative Agent. The provisions of this section 11 are
solely for the benefit of the Administrative Agent, and the
Lenders, and the Company and its Subsidiaries shall not have any
rights as a third party beneficiary of any of the provisions
hereof. In performing its functions and duties under this
Agreement, the Administrative Agent shall act solely as agent of
the Lenders and does not assume and shall not be deemed to have
assumed any obligation or relationship of agency or trust with or
for the Company or any of its Subsidiaries.
11.2. Delegation of Duties. The Administrative Agent
may execute any of its duties under this Agreement or any other
Credit Document by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters
pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care except to
the extent otherwise required by section 11.3.
<PAGE>
11.3. Exculpatory Provisions. Neither the
Administrative Agent nor any of its 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 (except for its or such person's own gross negligence
or willful misconduct) or (ii) responsible in any manner to any
of the Lenders for any recitals, statements, representations or
warranties made by the Company or of its Subsidiaries or any of
their respective officers contained in this Agreement, any other
Credit Document or in any certificate, report, statement or other
document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement
or any other Credit Document or for any failure of the Company or
any Subsidiary of the Company or any of their respective officers
to perform its obligations hereunder or thereunder. The
Administrative Agent 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 to inspect the properties, books or
records of the Company or any of its Subsidiaries. The
Administrative Agent shall not be responsible to any Lender for
the effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any Credit
Document or for any representations, warranties, recitals or
statements made herein or therein or made in any written or oral
statement or in any financial or other statements, instruments,
reports, certificates or any other documents in connection
herewith or therewith furnished or made by the Administrative
Agent to the Lenders or by or on behalf of the Company or any of
its Subsidiaries to the Administrative Agent or any Lender or be
required to ascertain or inquire as to the performance or
observance of any of the terms, conditions, provisions, covenants
or agreements contained herein or therein or as to the use of the
proceeds of the Loans or of the existence or possible existence
of any Default or Event of Default.
11.4. Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram,
telegram, facsimile transmission, telex or teletype message,
statement, order or other document or conversation reasonably
believed by it, in good faith, 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,
without limitation, counsel to the Company or any of its
Subsidiaries with respect to matters of corporate or other
organizational existence, power or authority of any of the Credit
Parties), independent accountants and other experts selected by
the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under
this Agreement or any other Credit Document unless it shall first
receive such advice or concurrence of the Required Lenders as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent
shall
<PAGE>
in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders (or all of the
Lenders, as to any matter which, pursuant to section 14.12, can
only be effectuated with the consent of all Lenders), and such
request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders.
11.5. Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of
any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or the
Treasury Manager 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
prompt 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,
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
Lenders.
11.6. Non-Reliance. Each Lender expressly acknowledges
that neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates
have made any representations or warranties to it and that no act
by the Administrative Agent hereinafter taken, including any
review of the affairs of the Company or any of its Subsidiaries,
shall be deemed to constitute any representation or warranty by
the Administrative Agent to any Lender. Each Lender represents
to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent, or any other
Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation
into the business, assets, operations, property, financial and
other conditions, prospects and creditworthiness of the Company
and its Subsidiaries and made its own decision to make its Loans
hereunder and enter into this Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Administrative Agent, or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement,
and to make such investigation as it deems necessary to inform
itself as to the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of
the Company and its Subsidiaries. The Administrative Agent shall
not have any duty or responsibility to provide any Lender with
any credit or other information concerning the business,
operations, assets, property, financial and other
<PAGE>
conditions, prospects or creditworthiness of the Company or any
of its Subsidiaries which may come into the possession of the
Administrative Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates.
11.7. Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such ratably
according to their respective Loans and Unutilized Commitments,
from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, reasonable
expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the
payment of the Obligations) be imposed on, incurred by or
asserted against the Administrative Agent in its capacity as such
in any way relating to or arising out of this Agreement or any
other Credit Document, or any documents contemplated by or
referred to herein or the transactions contemplated hereby or any
action taken or omitted to be taken by the Administrative Agent
under or in connection with any of the foregoing, but only to the
extent that any of the foregoing is not paid by the Co-Borrowers,
provided that no Lender shall be liable to the Administrative
Agent for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements to the extent resulting
solely from the Administrative Agent's gross negligence or
willful misconduct. If any indemnity furnished to the
Administrative Agent for any purpose shall, in the opinion of the
Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such
additional indemnity is furnished. The agreements in this
section 11.7 shall survive the payment of all Obligations.
11.8. The Administrative Agent in Individual Capacity.
The Administrative Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business
with the Company, its Subsidiaries and their Affiliates as though
not acting as Administrative Agent hereunder. With respect to
the Loans made by it and all Obligations owing to it, the
Administrative Agent shall have the same rights and powers under
this Agreement as any Lender and may exercise the same as though
it were not the Administrative Agent, and the terms "Lender" and
"Lenders" shall include the Administrative Agent in its
individual capacity.
11.9. Successor Administrative Agent. The
Administrative Agent may resign as the Administrative Agent upon
20 days' notice to the Lenders and the Treasury Manager. The
Treasury Manager shall appoint from among the Lenders a successor
Administrative Agent for the Lenders who is willing to so act,
whereupon such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall include such successor agent
effective upon its appointment, and
<PAGE>
the resigning Administrative Agent's rights, powers and duties as
the 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. After the retiring
Administrative Agent's resignation hereunder as the
Administrative Agent, the provisions of this section 11 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent under this
Agreement.
SECTION 12. THE TREASURY MANAGER.
12.1. Appointment. (a) Each Co-Borrower hereby
irrevocably designates and appoints Magnum Management as Treasury
Manager to act as specified herein and in the other Credit
Documents. Each Co-Borrower hereby irrevocably authorizes Magnum
Management as the Treasury Manager for such Co-Borrower, to take
such action on its behalf under the provisions of this Agreement
and the other Credit Documents and to exercise such powers and
perform such duties as are expressly delegated to the Treasury
Manager by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably
incidental thereto , with all such actions by the Treasury
Manager which purport to be on behalf of any Co-Borrower being
sufficient, without any further action or authorization by any Co-
Borrower, to bind all Co-Borrowers. The Treasury Manager agrees
to act as such upon the express conditions contained in this
section 12.
(b) All actions of the Treasury Manager taken in connection
with the Credit Documents, whether so expressed or not, shall be
deemed to be on behalf of, and shall bind, all Co-Borrowers,
unless in taking any particular action the Treasury Manager
expressly indicates in writing that such action is intended to
bind only a particular specified Co-Borrower or Co-Borrowers, in
which case such action shall be deemed to be on behalf of, and
shall bind, only those Co-Borrowers so specified.
(c) Solely as between the Treasury Manager and the Co-
Borrowers, the Treasury Manager shall have responsibility for
general cash management matters of all Co-Borrowers, including
the making of Borrowings, the making of all payments with
respect thereto, and the disbursement and allocation of portions
of the proceeds of Loans among the Co-Borrowers.
12.2. Reliance by Lenders and Administrative Agent upon
Statements, etc. of Treasury Manager. The Lenders and the
Administrative Agent shall be entitled to rely upon all
statements, certificates, notices, consents, certificates,
affidavits, letters, cablegrams, telegrams, facsimile
transmissions, telex or teletype messages, orders or other
documents or conversations furnished or made by the Treasury
Manager pursuant to any of the provisions of this Agreement or
any of the other Credit Documents, or otherwise in connection
with the transactions contemplated by the Credit Documents, as
being made or furnished on behalf of, and with the effect of
irrevocably binding, the Co-Borrowers, without any duty to
ascertain or to inquire as to the authority of the Treasury
Manager in so doing.
<PAGE>
12.3. Successor Treasury Manager. The Treasury Manager
may resign as the Treasury Manager upon 20 days' notice to the Co-
Borrowers and the Administrative Agent. The Co-Borrowers shall
appoint from among themselves a successor Treasury Manager for
the Co-Borrowers who is willing to so act, whereupon such
successor manager shall upon notice to by the Co-Borrowers to the
Administrative Agent and the Lenders, succeed to the rights,
powers and duties of the Treasury Manager, and the term "Treasury
Manager" shall include such successor manager effective upon its
appointment, and the resigning Treasury Manager's rights, powers
and duties as the Treasury Manager Agent shall be terminated,
without any other or further act or deed on the part of such
former Treasury Manager or any of the parties to this Agreement.
After the retiring Treasury Manager's resignation hereunder as
the Treasury Manager Agent, the provisions of this section 12
shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Treasury Manager Agent under this
Agreement.
SECTION 13. OBLIGATIONS OF CO-BORROWERS JOINT AND SERVERAL.
13.1. Nature of Obligations. The obligations of the Co-
Borrowers hereunder and under all of the Credit Documents to
which any Co-Borrower is a party, including without limitation in
respect of the Obligations, and in respect of all
representations, warranties, covenants and agreements of any Co-
Borrower contained in this Agreement or any of the other Credit
Documents or any other agreement, instrument, notice, consent or
other document delivered in connection with the transactions
contemplated by the Credit Documents, whether in existence prior
to the time any Co-Borrower became a party hereto or arising
thereafter, are joint and several primary obligations, whether or
not so expressed in any Credit Document. It shall not be
necessary for any Co-Borrower to have expressly become a party to
any Credit Document executed and delivered prior to the time such
Co-Borrower became a party hereto as contemplated by section 8.13
in order for such Co-Borrower to be bound as a Co-Borrower
thereunder.
13.2. Failure of any Co-Borrower to Perform any
Obligations. In the event any Co-Borrower or Co-Borrowers fail
to make full and punctual payment of any Obligation, each other
Co-Borrower shall forthwith on demand by the Administrative Agent
pay the entire amount not so paid at the place and in the
currency and otherwise in the manner specified in this Agreement
or any other applicable agreement or instrument.
13.3. Additional Undertaking. As a separate, additional
and continuing obligation, each Co-Borrower unconditionally and
irrevocably undertakes and agrees, for the benefit of the
Administrative Agent and the Lenders that, should any amounts not
be recoverable from any other Co-Borrower under section 13.2 for
<PAGE>
any reason whatsoever (including, without limitation, by reason
of any provision of any Credit Document or any other agreement or
instrument executed in connection therewith being or becoming
void, unenforceable, or otherwise invalid under any applicable
law) then, notwithstanding any notice or knowledge thereof by any
Lender, the Administrative Agent, any of their respective
Affiliates, or any other person, at any time, such Co-Borrower as
sole, original and independent obligor, upon demand by the
Administrative Agent, will make payment to the Administrative
Agent, for the account of the Lenders and the Administrative
Agent, of all such obligations not so recoverable by way of full
indemnity, in such currency and otherwise in such manner as is
provided in the Credit Documents or any other applicable
agreement or instrument.
13.4. Joint and Several Obligations Unconditional, etc.
The obligations of each Co-Borrower under this section shall be
unconditional and absolute and, without limiting the generality
of the foregoing shall not be released, discharged or otherwise
affected by the occurrence, one or more times, of any of the
following:
(i) any extension, renewal, settlement, compromise,
waiver or release in respect to any Obligation under any
agreement or instrument, by operation of law or otherwise;
(ii) any modification or amendment of or supplement to
this Agreement, any Note, any other Credit Document, or any
agreement or instrument evidencing or relating to any
Obligation;
(iii) any release, non-perfection or invalidity of
any direct or indirect security for any Obligation under any
agreement or instrument evidencing or relating to any
Obligation;
(iv) any change in the corporate existence, structure
or ownership of any Co-Borrower or other Subsidiary of the
Company or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting any Co-Borrower or other
Subsidiary of the Company or its assets or any resulting
release or discharge of any obligation of any Co-Borrower or
other Subsidiary of the Company contained in any agreement
or instrument evidencing or relating to any Obligation;
(v) the existence of any claim, set-off or other
rights which such Co-Borrower may have at any time against
any other Co-Borrower or other Subsidiary of the Company,
the Administrative Agent, any Lender, any Affiliate of any
Lender, or any other person, whether in connection herewith
or any unrelated transactions;
<PAGE>
(vi) any invalidity or unenforceability relating to or
against any other Co-Borrower or other Subsidiary of the
Company for any reason of any agreement or instrument
evidencing or relating to any Obligation, or any provision
of applicable law or regulation purporting to prohibit the
payment by any other Co-Borrower or other Subsidiary of the
Company of any Obligations; or
(vii) any other act or omission to act or delay of
any kind by any other Co-Borrower or other Subsidiary of the
Company, the Administrative Agent, any Lender or any other
person or any other circumstance whatsoever which might, but
for the provisions of this section, constitute a legal or
equitable discharge of such Co-Borrower's obligations under
this section or the other provisions of any of the Credit
Documents.
13.5. Co-Borrower's Obligations to Remain in Effect;
Restoration. Each Co-Borrower's obligations under this section
and the other provisions of the Credit Documents shall remain in
full force and effect until the Commitments shall have
terminated, and the principal of and interest on the Notes and
other Obligations, and all other amounts payable by the Co-
Borrowers (or any of them), or other Subsidiary of the Company,
under the Credit Documents or any other agreement or instrument
evidencing or relating to any of the Obligations, shall have been
paid in full. If at any time any payment of any of the
Obligations of any other Co-Borrower or other Subsidiary of the
Company in respect of any Obligations is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of such other Co-Borrower or other Subsidiary of
the Company, such Co-Borrower's obligations under this section
and the other provisions of the Credit Documents with respect to
such payment shall be reinstated at such time as though such
payment had been due but not made at such time.
13.6. Waiver of Acceptance, etc. Each Co-Borrower
irrevocably waives acceptance hereof, presentment, demand,
protest and any notice not provided for herein, as well as any
requirement that at any time any action be taken by any person
against any other Co-Borrower, other Subsidiary of the Company or
any other person, or against any collateral or guaranty of any
other person.
13.7. Subrogation. Until the indefeasible payment in
full of all of the Obligations and the termination of the
Commitments of the Lenders hereunder, no Co-Borrower shall have
any rights, by operation of law or otherwise, upon making any
payment under this section or the other provisions of any of the
Credit Documents to be subrogated to the rights of the payee
against any other Co-Borrower or other Subsidiary of the Company
with respect to such payment or otherwise to be reimbursed,
indemnified or exonerated by any other Co-Borrower or other
Subsidiary of the Company in respect thereof.
<PAGE>
13.8. Effect of Stay. In the event that acceleration of
the time for payment of any amount payable by any Co-Borrower or
other Subsidiary of the Company under any Obligation is stayed
upon insolvency, bankruptcy or reorganization of such other Co-
Borrower or other Subsidiary, all such amounts otherwise subject
to acceleration under the terms of any applicable agreement or
instrument evidencing or relating to any Obligation shall
nonetheless be payable by such Co-Borrower under this section and
the other provisions of the Credit Documents forthwith on demand
by the Administrative Agent.
<PAGE>
SECTION 14. MISCELLANEOUS.
14.1. Payment of Expenses, etc. The Co-Borrowers agree
to: (i) whether or not the transactions herein contemplated are
consummated, pay all reasonable out-of-pocket costs and expenses
of the Administrative Agent in connection with the negotiation,
preparation, execution and delivery of the Credit Documents and
the documents and instruments referred to therein and any
amendment, waiver or consent relating thereto (including, without
limitation, the reasonable fees and disbursements of Jones, Day,
Reavis & Pogue, special counsel to the Administrative Agent), and
of the Administrative Agent and each of the Lenders in connection
with the enforcement of the Credit Documents and the documents
and instruments referred to therein (including, without
limitation, the reasonable fees and disbursements of counsel for
the Administrative Agent and for each of the Lenders and any
allocated costs of internal counsel for any of the Lenders); (ii)
in the event of the bankruptcy, insolvency, rehabilitation or
other similar proceeding in respect of the Company or any of its
Subsidiaries, pay all costs of collection and defense, including
reasonable attorneys' fees in connection therewith and in
connection with any appellate proceeding or post-judgment action
involved therein, which shall be due and payable together with
all required service or use taxes; (iii) pay and hold each of the
Lenders harmless from and against any and all present and future
stamp and other similar taxes with respect to the foregoing
matters and save each of the Lenders harmless from and against
any and all liabilities with respect to or resulting from any
delay or omission (other than to the extent attributable to such
Lender) to pay such taxes; and (iv) indemnify each Lender, its
officers, directors, employees, representatives and agents
(collectively, the "Indemnitees") from and hold each of them
harmless against any and all losses, liabilities, claims, damages
or expenses reasonably incurred by any of them as a result of, or
arising out of, or in any way related to, or by reason of (a) any
investigation, litigation or other proceeding (whether or not any
Lender is a party thereto) related to the entering into and/or
performance of any Credit Document or the use of the proceeds of
any Loans hereunder or the consummation of any transactions
contemplated in any Credit Document, other than any such
investigation, litigation or proceeding arising out of
transactions solely between any of the Lenders or the
Administrative Agent, transactions solely involving the
assignment by a Lender of all or a portion of its Loans and
Commitment, or the granting of participations therein, as
provided in this Agreement, or arising solely out of any
examination of a Lender by any regulatory authority having
jurisdiction over it, or (b) the actual or alleged presence of
Hazardous Materials in the air, surface water or groundwater or
on the surface or subsurface of any Real Property owned, leased
or at any time operated by the Company or any of its
Subsidiaries, the release, generation, storage, transportation,
handling or disposal of Hazardous Materials at any location,
whether or not owned or operated by the Company or any of its
Subsidiaries, if the Company or any such Subsidiary could have or
is alleged to have any responsibility in respect thereof, the non-
compliance of any Real Property with foreign, federal, state and
local laws, regulations and ordinances (including applicable
<PAGE>
permits thereunder) applicable to any Real Property, or any
Environmental Claim asserted against the Company or any of its
Subsidiaries, in respect of any Real Property owned, leased or at
any time operated by the Company or any of its Subsidiaries,
including, in each case, without limitation, the reasonable fees
and disbursements of counsel incurred in connection with any such
investigation, litigation or other proceeding (but excluding any
such losses, liabilities, claims, damages or expenses to the
extent incurred by reason of the gross negligence or willful
misconduct of the person to be indemnified or of any other
Indemnitee who is such person or an Affiliate of such person). To
the extent that the undertaking to indemnify, pay or hold
harmless any person set forth in the preceding sentence may be
unenforceable because it is violative of any law or public
policy, the Company shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities
which is permissible under applicable law.
14.2. Right of Setoff. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by
way of limitation of any such rights, upon the occurrence of an
Event of Default, each Lender is hereby authorized at any time or
from time to time, without presentment, demand, protest or other
notice of any kind to any Co-Borrower or to any other person, any
such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special)
and any other Indebtedness at any time held or owing by such
Lender (including, without limitation, by branches and agencies
of such Lender wherever located) to or for the credit or the
account of any Co-Borrower against and on account of the
Obligations and liabilities of the Co-Borrowers to such Lender
under this Agreement or under any of the other Credit Documents,
including, without limitation, all interests in Obligations the
Co-Borrowers purchased by such Lender pursuant to section
14.4(b), and all other claims of any nature or description
arising out of or connected with this Agreement or any other
Credit Document, irrespective of whether or not such Lender shall
have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or
unmatured.
14.3. Notices. Except as otherwise expressly provided
herein, all notices and other communications provided for
hereunder shall be in writing (including telegraphic, telex,
facsimile transmission or cable communication) and mailed,
telegraphed, telexed, transmitted, cabled or delivered, (a) if to
any Co-Borrower, to it c/o the Treasury Manager at One Cedar
Point Drive, Sandusky, Ohio 44870-5259, attention: Chief
Financial Officer (facsimile: (419) 627-2260); (b) if to any
Lender at its address specified for such Lender on Annex I
hereto; (c) if to the Administrative Agent, at its Notice Office;
or (d) at such other address as shall be designated by any party
in a written notice to the other parties hereto. All such notices
and communications shall be mailed, telegraphed, telexed,
telecopied, or cabled or sent by overnight courier, and shall be
effective when received.
<PAGE>
14.4. Benefit of Agreement. (a) This Agreement shall
be binding upon and inure to the benefit of and be enforceable by
the parties hereto and their respective successors and assigns,
provided that no Co-Borrower may assign or transfer any of its
rights or obligations hereunder without the prior written consent
of all the Lenders, and, provided, further, that any assignment
by a Lender of its rights and obligations hereunder shall be
effected in accordance with section 14.4(b). Notwithstanding the
foregoing, each Lender may at any time grant participations in
any of its rights hereunder or under any of the Notes to another
financial institution or to any other "accredited investor" (as
defined in SEC Regulation D), provided that in the case of any
such participation, (i) the participant shall not have any rights
under this Agreement or any of the other Credit Documents,
including rights of consent, approval or waiver (the
participant's rights against such Lender in respect of such
participation to be those set forth in the agreement executed by
such Lender in favor of the participant relating thereto), (ii)
such Lender's obligations under this Agreement (including,
without limitation, its Commitment hereunder) shall remain
unchanged, (iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations,
(iv) such Lender shall remain the holder of any Note for all
purposes of this Agreement and (v) the Co-Borrowers, the
Administrative Agent, and the other Lenders shall continue to
deal solely and directly with the selling Lender in connection
with such Lender's rights and obligations under this Agreement,
and all amounts payable by the Co-Borrowers hereunder shall be
determined as if such Lender had not sold such participation,
except that the participant shall be entitled to the benefits of
sections 2.10, 2.11 and 5.4 of this Agreement to the extent that
such Lender would be entitled to such benefits if the
participation had not been entered into or sold, and, provided
further, that no Lender shall transfer, grant or sell any
participation under which the participant shall have rights to
approve any amendment to or waiver of this Agreement or any other
Credit Document except to the extent such amendment or waiver
would (x) extend the final scheduled maturity of the Loans in
which such participant is participating (it being understood that
any waiver of the making of, or the application of any mandatory
prepayment of, the Loans, shall not constitute an extension of
the final scheduled maturity date thereof), or reduce the rate or
extend the time of payment of interest or Fees thereon (except in
connection with a waiver of the applicability of any post-default
increase in interest rates), or reduce the principal amount
thereof, or increase such participant's participating interest in
any Commitment over the amount thereof then in effect (it being
understood that a waiver of any Default or Event of Default or of
any mandatory prepayment or a mandatory reduction in the Total
Commitment (or any portion thereof), or a mandatory prepayment,
shall not constitute a change in the terms of any participating
interest in any Commitment), or (y) release any Credit Party from
<PAGE>
its obligations under the Subsidiary Guaranty except strictly in
accordance with the terms hereof or thereof, or (z) consent to
the assignment or transfer by any Co-Borrower of any of its
rights and obligations under this Agreement.
(b) Notwithstanding the foregoing, (x) any Lender may
assign all or a fixed portion of its Loans and/or Commitment, and
its rights and obligations hereunder, to another Lender that is
not a Defaulting Lender, or to an Affiliate of any Lender
(including itself) and which is not a Defaulting Lender and which
is a commercial bank, financial institution or other "accredited
investor" (as defined in SEC Regulation D), and (y) any Lender
may assign all, or if less than all, a fixed portion, equal to at
least $5,000,000 in the aggregate for the assigning Lender or
assigning Lenders in the case of assignments of Loans and/or
Commitments, of its Loans and/or Commitment and its rights and
obligations hereunder, to one or more Eligible Transferees, each
of which assignees shall become a party to this Agreement as a
Lender by execution of an Assignment Agreement, provided that,
(i) in the case of any assignment of a portion of the Loans
and/or Commitments of a Lender, such Lender shall retain a
minimum fixed portion thereof equal to at least $5,000,000, (ii)
at the time of any such assignment Annex I shall be deemed
modified to reflect the Commitments of such new Lender and of the
existing Lenders, (iii) upon surrender of the old Notes, new
Notes will be issued, at the Co-Borrowers' expense, to such new
Lender and to the assigning Lender, such new Notes to be in
conformity with the requirements of section 2.6 (with appropriate
modifications) to the extent needed to reflect the revised
Commitments, (iv) in the case of clause (y) only, the consent of
the Administrative Agent shall be required in connection with any
such assignment (which consent shall not be unreasonably withheld
or delayed), and (v) the Administrative Agent shall receive at
the time of each such assignment, from the assigning or assignee
Lender, the payment of a non-refundable assignment fee of $3,500
and, provided further, that such transfer or assignment will not
be effective until recorded by the Administrative Agent on the
Lender Register maintained by it as provided herein. To the
extent of any assignment pursuant to this section 14.4(b) the
assigning Lender shall be relieved of its obligations hereunder
with respect to its assigned Commitments. At the time of each
assignment pursuant to this section 14.4(b) to a person which is
not already a Lender hereunder and which is not a United States
person (as such term is defined in section 7701(a)(30) of the
Code) for Federal income tax purposes, the respective assignee
Lender shall provide to the Treasury Manager and the
Administrative Agent the appropriate Internal Revenue Service
Forms (and, if applicable a Section 5.4(b)(ii) Certificate)
described in section 5.4(b). To the extent that an assignment of
all or any portion of a Lender's Commitment and related
outstanding Obligations pursuant to this section 14.4(b) would,
at the time of such assignment, result in increased costs under
section 2.11 from those being charged by the respective assigning
Lender prior to such assignment, then the Co-Borrowers shall not
be obligated to
<PAGE>
pay such increased costs (although the Co-Borrowers shall be
obligated to pay any other increased costs of the type described
above resulting from changes after the date of the respective
assignment). Nothing in this section 14.4(b) shall prevent or
prohibit any Lender from pledging its Notes or Loans to a Federal
Reserve Bank in support of borrowings made by such Lender from
such Federal Reserve Bank.
(c) Notwithstanding any other provisions of this section
14.4, no transfer or assignment of the interests or obligations
of any Lender hereunder or any grant of participation therein
shall be permitted if such transfer, assignment or grant would
require the Co-Borrowers to file a registration statement with
the SEC or to qualify the Loans under the "Blue Sky" laws of any
State.
(d) Each Lender initially party to this Agreement hereby
represents, and each person that became a Lender pursuant to an
assignment permitted by this section 14.4 will, upon its becoming
party to this Agreement, represent that it is a commercial
lender, other financial institution or other "accredited"
investor (as defined in SEC Regulation D) which makes or acquires
loans in the ordinary course of its business and that it will
make or acquire Loans for its own account in the ordinary course
of such business, provided that subject to the preceding sections
14.4(a) and (b), the disposition of any promissory notes or other
evidences of or interests in Indebtedness held by such Lender
shall at all times be within its exclusive control.
14.5. No Waiver: Remedies Cumulative. No failure or
delay on the part of the Administrative Agent or any Lender in
exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between any Co-
Borrower and the Administrative Agent or any Lender shall operate
as a waiver thereof; nor shall any single or partial exercise of
any right, power or privilege hereunder or under any other Credit
Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or
thereunder. The rights and remedies herein expressly provided
are cumulative and not exclusive of any rights or remedies which
the Administrative Agent or any Lender would otherwise have. No
notice to or demand on any Co-Borrower in any case shall entitle
such Co-Borrower or any other Co-Borrower to any other or further
notice or demand in similar or other circumstances or constitute
a waiver of the rights of the Administrative Agent or the Lenders
to any other or further action in any circumstances without
notice or demand.
14.6. Payments Pro Rata. (a) The Administrative Agent
agrees that promptly after its receipt of each payment from or on
behalf of the Co-Borrowers (or any of them) in respect of any
Obligations, it shall distribute such payment to the Lenders
(other than any Lender that has expressly waived in writing its
right to receive its pro rata share thereof) pro rata based upon
their
<PAGE>
respective shares, if any, of the Obligations with respect to
which such payment was received. As to any such payment received
by the Administrative Agent prior to 1:00 P.M. (local time at the
Payment Office) in funds which are immediately available on such
day, the Administrative Agent will use all reasonable efforts to
distribute such payment in immediately available funds on the
same day to the Lenders as aforesaid.
(b) Each of the Lenders agrees that, if it should receive
any amount hereunder (whether by voluntary payment, by
realization upon security, by the exercise of the right of setoff
or banker's lien, by counterclaim or cross action, by the
enforcement of any right under the Credit Documents, or
otherwise) which is applicable to the payment of the principal
of, or interest on, the Loans or Fees, of a sum which with
respect to the related sum or sums received by other Lenders is
in a greater proportion than the total of such Obligation then
owed and due to such Lender bears to the total of such Obligation
then owed and due to all of the Lenders immediately prior to such
receipt, then such Lender receiving such excess payment shall
purchase for cash without recourse or warranty from the other
Lenders an interest in the Obligations to such Lenders in such
amount as shall result in a proportional participation by all of
the Lenders in such amount, provided that if all or any portion
of such excess amount is thereafter recovered from such Lender,
such purchase shall be rescinded and the purchase price restored
to the extent of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained
herein, the provisions of the preceding sections 14.6(a) and (b)
shall be subject to the express provisions of this Agreement
which require, or permit, differing payments to be made to
Lenders which are not Defaulting Lenders, as opposed to
Defaulting Lenders.
14.7. Financial Calculations; Computations of Interest
and Fees. (a) The financial statements to be furnished to the
Lenders pursuant hereto shall be made and prepared in accordance
with GAAP consistently applied throughout the periods involved
(except as set forth in the notes thereto or as otherwise
disclosed in writing by any of the Co-Borrowers to the Lenders);
provided, that if at any time the computations determining
compliance with section 9 utilize accounting principles different
from those utilized in the financial statements furnished to the
Lenders, such computations shall set forth in reasonable detail a
description of the differences and the effect upon such
computations.
(b) All computations of interest on Eurodollar Loans
hereunder and all computations of Facility Fee and other Fees
hereunder shall be made on the actual number of days elapsed over
a year of 360 days, and all computations of interest on Prime
Rate Loans hereunder shall be made on the actual number of days
elapsed over a year of 365 or 366 days, as the case may be.
<PAGE>
14.8. Governing Law; Submission to Jurisdiction; Venue;
Waiver of Jury Trial. (a) THIS AGREEMENT AND THE OTHER CREDIT
DOCUMENTS AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF OHIO. TO THE FULLEST EXTENT
PERMITTED BY LAW, EACH CO-BORROWER HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY
JURISDICTION OTHER THAN THE STATE OF OHIO GOVERNS THIS AGREEMENT
OR ANY OF THE OTHER CREDIT DOCUMENTS. Any legal action or
proceeding with respect to this Agreement or any other Credit
Document may be brought in the Court of Common Pleas of Cuyahoga
County, Ohio, or of the United States for the Northern District
of Ohio, and, by execution and delivery of this Agreement, each
Co-Borrower hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction
of the aforesaid courts. Each Co-Borrower hereby further
irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail,
postage prepaid, to such Co-Borrower at its address for notices
pursuant to section 14.3, such service to become effective 30
days after such mailing or at such earlier time as may be
provided under applicable law. Nothing herein shall affect the
right of the Administrative Agent or any Lender to serve process
in any other manner permitted by law or to commence legal
proceedings or otherwise proceed against any Co-Borrower in any
other jurisdiction.
(b) Each Co-Borrower hereby irrevocably waives any
objection which it may now or hereafter have to the laying of
venue of any of the aforesaid actions or proceedings arising out
of or in connection with this Agreement or any other Credit
Document brought in the courts referred to in section 14.8(a)
above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or
proceeding brought in any such court has been brought in an
inconvenient forum.
(c) Each of the parties to this Agreement hereby
irrevocably waives all right to a trial by jury in any action,
proceeding or counterclaim arising out of or relating to this
Agreement, the other Credit Documents or the transactions
contemplated hereby or thereby.
14.9. Counterparts. This Agreement may be executed in
any number of counterparts and by the different parties hereto on
separate counterparts, each of which when so executed and
delivered shall be an original, but all of which shall together
constitute one and the same agreement. A set of counterparts
executed by all the parties hereto shall be lodged with the
Borrower and the Administrative Agent.
<PAGE>
14.10. Effectiveness. This Agreement shall become
effective on the date (the "Effective Date") on which the Co-
Borrowers who are intended to be the initial Co-Borrowers
hereunder and each of the Lenders shall have signed a copy hereof
(whether the same or different copies) and shall have delivered
the same to the Administrative Agent at the Notice Office of the
Administrative Agent or, in the case of the Lenders, shall have
given to the Administrative Agent telephonic (confirmed in
writing), written telex or facsimile transmission notice
(actually received) at such office that the same has been signed
and mailed to it.
14.11. Headings Descriptive. The headings of the several
sections and other portions of this Agreement are inserted for
convenience only and shall not in any way affect the meaning or
construction of any provision of this Agreement.
14.12. Amendment or Waiver. Neither this Agreement nor
any terms hereof or thereof may be changed, waived, discharged or
terminated unless such change, waiver, discharge or termination
is in writing signed by the Co-Borrowers (or the Treasury Manager
on behalf of all Co-Borrowers) and the Required Lenders, provided
that no such change, waiver, discharge or termination shall,
without the consent of each Lender (other than a Defaulting
Lender) directly affected thereby,
(i) extend any maturity date provided for herein
applicable to a Loan or a Commitment (it being understood
that any waiver of the making of, or application of, any
mandatory prepayment of the Loans shall not constitute an
extension of the maturity thereof);
(ii) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the
applicability of any post-default increase in interest
rates) or Fees thereon;
(iii) reduce the principal amount thereof, or
increase any Commitment of any Lender over the amount
thereof then in effect (it being understood that a waiver of
any Default or Event of Default or of any mandatory
prepayment or a mandatory reduction in the Total Commitment
(or any component thereof) shall not constitute a change in
the terms of any Commitment of any Lender);
(iv) release any Co-Borrower from its obligations as a
Co-Borrower hereunder, except with the consent of all
Lenders in accordance with section 8.13;
(v) release any Credit Party from the Subsidiary
Guaranty, except in connection with a transaction permitted
by section 9.2(d);
(vi) release all or any substantial portion of any
collateral which may have been provided by any Credit Party
to the Administrative Agent as security for the Obligations,
except as expressly provided in the Credit Documents;
<PAGE>
(vii) change the definition of the term "Change of
Control" or any of the provisions of section 4.2 or 5.2
which are applicable upon a Change of Control;
(viii) change the definition of the term
"Determination of Taxability" or any of the provisions of
section 4.2 or 5.2 which are applicable upon a Determination
of Taxability;
(ix) change the definition of the term "Permitted
Acquisition" or any of the provisions of section 9.2(c)
which are applicable to Permitted Acquisitions which would
have the effect of depriving such Lender of its rights with
respect to "hostile acquisitions" as contemplated by such
definition;
(x) reduce the percentage specified in, or otherwise
modify, the definition of Required Lenders;
(xi) amend, modify or waive any provision of this
section 14.12, or section 11.7, 14.1, 14.4, 14.6 or 14.7(b);
(xii) amend, modify or waive any other provision of
any of the Credit Documents pursuant to which the consent or
approval of all Lenders is by the terms of such provision
explicitly required; or
(xiii) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under this
Agreement.
No provision of section 11 may be amended without the consent of
the Administrative Agent.
14.13. Survival of Indemnities. All indemnities set
forth herein including, without limitation, in section 2.10,
2.11, 5.4, 11.7 or 14.1 shall survive the execution and delivery
of this Agreement and the making and repayment of Loans.
14.14. Domicile of Loans. Each Lender may transfer and
carry its Loans at, to or for the account of any branch office,
subsidiary or affiliate of such Lender, provided that the Co-
Borrowers shall not be responsible for costs arising under
section 2.10 or 5.4 resulting from any such transfer (other than
a transfer pursuant to section 2.12) to the extent not otherwise
applicable to such Lender prior to such transfer.
14.15. Confidentiality. The Administrative Agent and
each Lender shall hold all non-public information obtained
pursuant to the requirements of this Agreement which has been
identified as such by the Treasury Manager in accordance with its
customary procedure for handling confidential information of this
nature and in accordance with safe and sound banking practices.
Notwithstanding the foregoing, the Administrative Agent and any
Lender may in any event may make disclosures of, and furnish
copies of such information:
<PAGE>
(i) to another Lender or to the Administrative Agent;
(ii) when reasonably required by any bona fide
transferee or participant in connection with the
contemplated transfer of any Loans or Commitment or
participation therein (provided that each such prospective
transferee and/or participant shall execute an agreement for
the benefit of the Co-Borrowers with such prospective
transferor Lender and/or participant containing provisions
substantially identical to those contained in this section
14.15);
(iii) to its parent corporation or corporations,
and to its and their auditors and attorneys; and
(iv) as required or requested by any governmental
agency or representative thereof, or pursuant to legal
process, provided that, unless specifically prohibited by
applicable law or court order, the Administrative Agent or
such Lender, as applicable, shall notify the Treasury
Manager of any request by any governmental agency or
representative thereof (other than any such request in
connection with an examination of the financial condition of
the Administrative Agent or such Lender, as applicable, by
such governmental agency), and of any other request pursuant
to legal process, for disclosure of any such non-public
information prior to disclosure of such information.
In no event shall the Administrative Agent or any Lender be
obligated or required to return any materials furnished by or on
behalf of the Company or any of its Subsidiaries. Each Co-
Borrower hereby agrees that the failure of the Administrative
Agent or a Lender to comply with the provisions of this section
14.15 shall not relieve any Co-Borrower of any of the obligations
to the Administrative Agent or any Lender under this Agreement
and the other Credit Documents.
14.16. Lender Register. Each Co-Borrower hereby
designates the Administrative Agent to serve as its agent, solely
for purposes of this section 14.16, to retain a copy of each
Assignment Agreement delivered to and accepted by it and to
maintain a register (the "Lender Register") on or in which it
will record the names and addresses of the Lenders, and the
Commitments from time to time of each of such Lenders, the Loans
made to the Co-Borrowers by each of such Lenders and each
repayment and prepayment in respect of the principal amount of
such Loans of each such Lender. Failure to make any such
recordation, or (absent manifest error) any error in such
recordation, shall not affect the Co-Borrowers' obligations in
respect of such Loans. With respect to any Lender, the transfer
of any Commitment of such Lender and the rights to the principal
of, and interest on, any Loan made pursuant to such Commitment
shall not be effective until such transfer is recorded
<PAGE>
on the Lender Register maintained by the Administrative Agent
with respect to ownership of such Commitment and Loans and prior
to such recordation all amounts owing to the transferor with
respect to such Commitment and Loans shall remain owing to the
transferor. The registration of assignment or transfer of all or
part of any Commitment and Loans shall be recorded by the
Administrative Agent on the Lender Register only upon the
acceptance by the Administrative Agent of a properly executed and
delivered Assignment Agreement pursuant to section 14.4(b). Each
Co-Borrower agrees to indemnify the Administrative Agent from and
against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or
incurred by the Administrative Agent in performing its duties
under this section 14.16. The Lender Register shall be available
for inspection by the Treasury Manager or any Lender at any
reasonable time and from time to time upon reasonable prior
notice.
14.17. General Limitation of Liability. No claim may be
made by any Co-Borrower, any Lender, the Administrative Agent, or
any other person against the Administrative Agent or any other
Lender or the Affiliates, directors, officers, employees,
attorneys or agents of any of them for any damages other than
actual compensatory damages in respect of any claim for breach of
contract or any other theory of liability arising out of or
related to the transactions contemplated by this Agreement or any
of the other Credit Documents, or any act, omission or event
occurring in connection therewith; and each of the Co-Borrowers,
each Lender, and the Administrative Agent hereby, to the fullest
extent permitted under applicable law, waives, releases and
agrees not to sue or counterclaim upon any such claim for any
special, consequential or punitive damages, whether or not
accrued and whether or not known or suspected to exist in its
favor.
14.18. No Duty. All attorneys, accountants, appraisers,
consultants and other professional persons (including the firms
or other entities on behalf of which any such person may act)
retained by the Administrative Agent or any Lender with respect
to the transactions contemplated by the Credit Documents shall
have the right to act exclusively in the interest of the
Administrative Agent or such Lender, as the case may be, and
shall have no duty of disclosure, duty of loyalty, duty of care,
or other duty or obligation of any type or nature whatsoever to
any Co-Borrower, to any of its Subsidiaries, or to any other
person, with respect to any matters within the scope of such
representation or related to their activities in connection with
such representation.
14.19. Lenders and Agent Not Fiduciary to Co-Borrowers,
etc. The relationship among the Company and its Subsidiaries, on
the one hand, and the Administrative Agent and the Lenders, on
the other hand, is solely that of debtor and creditor, and the
Administrative Agent and the Lenders have no fiduciary or other
special relationship with the Company and its Subsidiaries, and
no term or provision of any Credit Document, no course of
dealing, no written or oral communication, or other action, shall
be construed so as to deem such relationship to be other than
that of debtor and creditor.
<PAGE>
14.20. Survival of Representations and Warranties. All
representations and warranties herein shall survive the making of
Loans hereunder, the execution and delivery of this Agreement,
the Notes and the other documents the forms of which are attached
as Exhibits hereto, the issue and delivery of the Notes, any
disposition thereof by any holder thereof, and any investigation
made by the Administrative Agent or any Lender or any other
holder of any of the Notes or on its behalf. All statements
contained in any certificate or other document delivered to the
Administrative Agent or any Lender or any holder of any Notes by
or on behalf of any Co-Borrower or of its Subsidiaries pursuant
hereto or otherwise specifically for use in connection with the
transactions contemplated hereby shall constitute representations
and warranties by the Co-Borrowers hereunder, made as of the
respective dates specified therein or, if no date is specified,
as of the respective dates furnished to the Administrative Agent
or any Lender.
14.21. Limited Liability of Partners of Co-Borrowers as
Such. Anything in this Agreement, the Notes or the other Credit
Documents to the contrary notwithstanding, the Lenders and the
Administrative Agent agree that no recourse under this Agreement,
the Notes or any other Credit Document shall be had against the
general partner of the Company, or any other partner of the
Company or any other Co-Borrower, or any partner of any such
partner, as such (all of the foregoing, collectively, the
"Exempted Persons"), whether based on agency, deputization or
otherwise, by the enforcement of any assessment or by legal or
equitable proceeding, by virtue of statute or otherwise, it being
expressly agreed that no personal liability whatsoever shall
attach to or be incurred by the general partner of the Company,
any other partner of the Company or any other Co-Borrower, or any
partner of any such partner, as such, under this Agreement, the
Notes or any other Credit Document; provided, that the foregoing
limitation of liability shall in no way constitute a limitation
on the right of the Administrative Agent or any Lender to enforce
their remedies against the Company, any other Co-Borrower or any
other Credit Party or their respective properties and assets, or
any other person (other than an Exempted Person, as such), for
the collection of amounts due and owing under the Credit
Documents or any other obligations under any of the Credit
Documents.
[The balance of this page is intentionally blank.]
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered
as of the date first above written.
<PAGE>
CEDAR FAIR, L. P., KEYBANK NATIONAL ASSOCIATION,
as a Co-Borrower individually as a Lender and as
By: Cedar Fair Management Administrative Agent
Company, its Managing General
Partner
By:__________________________ By:__________________________
Vice President & Chief Vice President
Financial Officer
CEDAR FAIR, an Ohio general BANK ONE, MICHIGAN
partnership, as a Co-Borrower
By: Magnum Management
Corporation one of its By:___________________________
general partners Vice President
By:__________________________
Vice President & Chief
Financial Officer
KNOTT'S BERRY FARM, NATIONAL CITY BANK
as a Co-Borrower
By: Magnum Management
Corporation one of its
general partners By:___________________________
Assistant Vice President
By:__________________________
Vice President & Chief
Financial Officer
MAGNUM MANAGEMENT CORPORATION, FIRST UNION NATIONAL BANK
as a Co-Borrower and as
Treasury Manager
By:___________________________
By:__________________________ Vice President
Vice President & Chief
Financial Officer
FIFTH THIRD BANK, NORTHEASTERN OHIO
By:___________________________
Vice President
<PAGE>
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