EXHIBIT 2 ASSET PURCHASE AGREEMENT BETWEEN CEDAR FAIR, L.P. AND SIX FLAGS, INC. FUNTIME, INC. AURORA CAMPGROUND, INC. OHIO CAMPGROUNDS INC. OHIO HOTEL LLC

EXHIBIT 2

 

 

 

 

 

ASSET PURCHASE AGREEMENT

BETWEEN

CEDAR FAIR, L.P.

AND

SIX FLAGS, INC.

FUNTIME, INC.

AURORA CAMPGROUND, INC.

OHIO CAMPGROUNDS INC.

OHIO HOTEL LLC

 

 

 

 

DATED AS OF APRIL 8, 2004

 

ARTICLE I Purchase and Sale          1

Section 1.1 Transaction; Assets             1

Section 1.2 Excluded Assets      3

Section 1.3 Excluded Liabilities.             4

Section 1.4 Assumed Liabilities 6

Section 1.5 Purchase Price        6

Section 1.6 Closing Date           6

Section 1.7 Post-Closing Adjustment     6

Section 1.8 Intentionally Omitted            8

Section 1.9 Closing Prorations   8

Section 1.10 Consent of Third Parties    9

ARTICLE II Representations and Warranties of Parent and Sellers         10

Section 2.1 Parent and Sellers    10

Section 2.2 Corporate Power and Authority       10

Section 2.3 Conflicts, Consents and Approvals 10

Section 2.4 Title to Tangible Personal Property 11

Section 2.5 Title to Real Property; Existing Surveys        11

Section 2.6 Litigation     12

Section 2.7 Brokerage and Finder's Fees           12

Section 2.8 Environmental Matters         12

Section 2.9 Condition of Assets             14

Section 2.10 Trademarks, Etc.   14

Section 2.11 Financial Statements; Attendance   14

Section 2.12 Absence of Changes or Events      15

Section 2.13 Contracts 16

Section 2.14 Tax Matters          17

Section 2.15 Employee Benefits             18

Section 2.16 Insurance 19

Section 2.17 Compliance with Law        19

Section 2.18. No Other Representations or Warranties 20

ARTICLE III Representations and Warranties of Buyer   20

Section 3.1 Organization and Standing of Buyer             20

Section 3.2 Partnership Power and Authority     20

Section 3.3 Conflicts, Consents and Approvals 20

Section 3.4 No Litigation; Compliance with Law            20

Section 3.5 Financing     21

Section 3.6 Broker and Finder's Fees    21

 

ARTICLE IV Pre-Closing Covenants of Parent and Sellers           21

Section 4.1 Access; Cooperation           21

Section 4.2 Operation of the Business    22

Section 4.3 Consents and Approvals      22

Section 4.4 Communications      23

Section 4.5 Other Offers            23

Section 4.6 Title Insurance         23

Section 4.7 Surveys       23

Section 4.8 Software License     24

Section 4.9 Title and Survey Objections/Cure of Title and Survey Objections     24

Section 4.10. Disclosure Schedules        25

ARTICLE V Covenants of Parent and Sellers         26

Section 5.1 Further Assurances 26

Section 5.2 Removal of Excluded Assets            26

Section 5.3 Limited License to use Name           26

Section 5.4 Covenant Not-to-Compete             26

Section 5.5 Maintenance, Care and Risk Related to Animal Assets         26

Section 5.6 Preservation of Records      27

Section 5.7 Maintenance of Assets         27

ARTICLE VI Pre-Closing Covenants of Buyer        27

Section 6.1 Consents and Approvals      27

Section 6.2 Communications      27

Section 6.3 Financing     28

ARTICLE VII Covenants of Buyer   28

Section 7.1 Further Assurances 28

Section 7.2 Access to Tax and Other Information           28

Section 7.3 Preservation of Records.     29

ARTICLE VIII Conditions Precedent           29

Section 8.1 Mutual Conditions Precedent           29

Section 8.2 Conditions Precedent of Buyer        29

Section 8.3 Conditions Precedent of Sellers       32

ARTICLE IX Survival and Indemnity           33

Section 9.1 Survival of Representations and Warranties 33

Section 9.2 Indemnity by Parent and Sellers       33

Section 9.3 Indemnity by Buyer             34

Section 9.4 Tax Indemnity         34

Section 9.5 Claims Procedure.   35

Section 9.6 Tax Treatment of Indemnity Payments          37

Section 9.7 Calculation of Losses           37

Section 9.8 Exclusive Remedy   38

ARTICLE X Employee Matters        38

Section 10.1 Employees            38

Section 10.2 Paid Time Off        39

Section 10.3 Interviews             39

Section 10.4 Health Insurance    39

Section 10.5 COBRA   39

Section 10.6 Severance             39

Section 10.7 WARN Act          40

Section 10.8 Past Service Credit            40

ARTICLE XI Termination     40

Section 11.1 Termination           40

Section 11.2 Effect of Termination         40

ARTICLE XII Miscellaneous            41

Section 12.1 Expenses   41

Section 12.2 Entire Agreement   41

Section 12.3 Assignment; Binding Effect             41

Section 12.4 Modification; Waiver and Extensions         41

Section 12.5 Notices     42

Section 12.6 Bulk Sales Waiver             42

Section 12.7 Press Releases      42

Section 12.8 Captions   42

Section 12.9 Counterparts         42

Section 12.10 Severability         43

Section 12.11 Time       43

Section 12.12 Choice of Law    43

Section 12.13 Confidentiality Agreement            43

Section 12.14 No Third Party Beneficiaries        43

ASSET PURCHASE AGREEMENT

THIS ASSET PURCHASE AGREEMENT (this " Agreement ") is made and entered into as of the 8th day of April, 2004, by and among SIX FLAGS, INC., a Delaware corporation (" Parent "), Aurora Campground, Inc., an Ohio corporation and an indirect wholly-owned subsidiary of Parent (" Aurora Campground "), Funtime, Inc., an Ohio corporation and an indirect wholly-owned subsidiary of Parent (" Funtime "), Ohio Campgrounds Inc., an Ohio corporation and an indirect wholly-owned subsidiary of Parent (" Ohio Campgrounds "), Ohio Hotel LLC, an Ohio limited liability corporation and a direct wholly-owned subsidiary of Funtime (" Ohio Hotel " and together with Aurora Campground, Funtime and Ohio Campgrounds, " Sellers ") and CEDAR FAIR, L.P., a Delaware limited partnership (" Buyer ").

R E C I T A L S

A.         Sellers own and operate the assets and business commonly known as "Six Flags Worlds of Adventure" situated at 1060 North Aurora Road, Aurora, Ohio 44202, including the adjacent hotel and campground (the " Business ").

B.          Sellers desire to sell, transfer and assign to Buyer (the " Sale ") and Buyer desires to purchase and assume from Sellers (the " Purchase ") all of the Assets and Assumed Liabilities, on the terms and conditions set forth herein.

C.         Certain capitalized terms used in this Agreement shall have the meaning ascribed to such terms in Appendix A attached to this Agreement.

A G R E E M E N T S

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants, promises and undertakings set forth herein and in order to set forth the terms and conditions of the Purchase and Sale (together, the " Transaction ") and the manner of effecting the Transaction, Buyer and Sellers hereby agree as follows:

ARTICLE I
Purchase and Sale

Section 1.1        Transaction; Assets. Subject to all of the terms, conditions and provisions of this Agreement, at the Closing:

Assets . Each Seller shall sell, transfer, assign and deliver to Buyer, and Buyer shall purchase and acquire from such Seller, free and clear of any Encumbrances (except as provided herein), all of such Seller's respective right, title and interest in and to all of such Seller's respective property and assets of every kind and description, wherever located, that are primarily used or held for use in connection with the operation of the Business, including without limitation the following (but excluding the Excluded Assets):

(a)         Real Property . All of the real property (the " Land ") other than the Excluded Assets (i) used in the operation of the Business and which is located in Portage County, Ohio or Geauga County, Ohio, including, without limitation, all of the real property located in Portage County, Ohio or Geauga County, Ohio which is owned (" Owned Real Property ") or leased (" Leased Real Property ") by one or more of Sellers and/or in which a Seller or any affiliate of a Seller otherwise has an interest (including the mortgage in favor of Ohio Campgrounds secured by a lien on the Silverhorn Camping Resort (the " Campground Property ")), or (ii) which is described on Schedule 1.1(a) attached hereto (which Schedule with respect to the Owned Real Estate shall include all real property indicated as owned by Sellers or any affiliate on the title commitment(s) and survey(s) pursuant to Sections 4.6 and 4.7, respectively), together with Sellers' interests in all easements, rights of way, appurtenances, mineral and water rights and other rights and benefits running with such parcels of real property and all buildings, improvements and fixtures located thereon (the " Improvements " and collectively with the Land, the " Real Property ");

(b)         Tangible Personal Property. All vehicles, furniture, fixtures, machinery, rides, equipment, maintenance parts and all other tangible personal property, wherever located, owned by Sellers on the Closing Date and primarily used or held for use in connection with the operation of the Business (collectively, the " Tangible Personal Property ").

(c)         Inventory. All inventory located at the Real Property in connection with the Business other than inventory that bears, utilizes or contains the WB Marks or any other of Sellers' Retained Intellectual Property;

(d)         Records and Manuals. All customer lists, manuals, drawings, imprints, engineering and design information, service and parts records, warranty records, maintenance and repair records and records of all employees hired by Buyer (provided employee consents are obtained) relating to the Assets or the Business (collectively, the " Records and Manuals ");

(e)         Permits. All licenses, certificates, variances, permits, consents, authorizations and approvals issued to Sellers as of the Closing Date by any governmental or quasi-governmental agency relating to or affecting the ownership or operation of the Assets or the Business, all of which material permits (whether or not assignable) are listed on Schedule 1.1(e) attached hereto, but excluding permits pertaining to the Excluded Assets (collectively, the " Permits ").

(f)          Personal Property Leases. All leases relating to the use of any personal property primarily used or held for use in connection with the Business, including, but not limited to the leases described on Schedule 1.1(f) attached hereto (the " Personal Property Leases ").

(g)         Real Property Leases . The leases, licenses, concession agreements and other agreements for the use or occupancy of all or any portion of the Leased Real Property by Sellers primarily in connection with the Business (collectively, the " Real Property Leases ") described on Schedule 1.1(g) hereto.

(h)         Contracts and Agreements. All of Sellers' rights under those contracts, purchase orders, sales orders, customer orders, distributor agreements, franchise agreements, sales representation agreements, warranty agreements, service agreements, guarantee agreements, confidentiality agreements, supply agreements, rights or option agreements, leases, concessions, licenses and any other agreements and commitments of any sort to which Sellers are a party on the Closing Date (including those pertaining to the use of any portion of the Real Property by third parties) that are primarily used or held for use in the operation of the Business, including, but not limited to all contracts and agreements described on Schedule 1.1(h) , but excluding the Excluded Contracts (the " Contracts and Agreements ").

(i)          Intellectual Property Rights. All intellectual property owned by Sellers on the Closing Date and that is related to the Business and disclosed on Schedule 1.1(i) (the " Intangibles Acquired by Asset Purchase ").

(j)          Insurance Proceeds . Any proceeds from any property insurance of Sellers arising from a loss or event related to the Assets and occurring at any time after the date hereof, but before the Closing Date.

(k)         The library of photographs, motion pictures and videos used in the marketing and promotion of the Business, but excluding any portions thereof that contain or utilize Sellers' Retained Intellectual Property.

(l)          Other Assets. Except as provided in Section 1.2 below, all other tangible and intangible assets, including cash funds located at the Business, owned by Sellers on the Closing Date that are used primarily or held for use primarily in the ongoing operation of the Business.

All of the property and assets to be transferred to Buyer hereunder are herein referred to collectively as the " Assets ."

Section 1.2        Excluded Assets.

Notwithstanding anything to the contrary set forth in Section 1.1 above, the term "Assets" shall specifically not include:

(a)         any animals and all animal equipment, fixtures and supplies used or held for use in connection with the Business, including, but not limited to the animals, equipment and supplies listed on Schedule 1.2(a) attached hereto (collectively, the " Animal Assets ");

(b)         any Permits, Contracts and Agreements solely related to the Animal Assets;

(c)         any intellectual property rights of Sellers and their affiliates listed on Schedule 1.2(c) (collectively, " Sellers' Retained Intellectual Property ");

(d)         any inventory, uniforms, costumes and supplies that contain, include or embody Sellers' Retained Intellectual Property and all Coca-Cola and related products and non-owned equipment;

(e)         any insurance policies respecting the Sellers or the Business;

(f)          any cash and cash equivalents (except for cash funds located at the Business), accounts receivable, notes receivable and other receivables;

(g)         any computer hardware containing proprietary information of Parent and its subsidiaries (other than Sellers) listed on Schedule 1.2(g) and any non-assignable computer software listed on Schedule 1.2(g) ;

(h)         any warranties or guaranties or other contractual agreements which are non-assignable and listed on Schedule 1.2(h) ;

(i)          any claims and causes of action (except for insurance proceeds described in Section 1.1(j) hereof) against third parties respecting the Assets or the Business which relate to the period of time on or prior to the Closing Date, including without limitation, any proceeds from Tax protests, refunds, rebates or other recovery of Taxes, or utility refunds, but not including claims relating to the condition of the Assets;

(j)          any employment records of any Seasonal Employee or Regular Employee (as defined in Section 10.1) not hired by Buyer as of the Closing Date;

(k)         any multi-park agreements set forth on Schedule 1.2(k) ;

(l)          any Real Property Leases described on Schedule 1.2(l) attached hereto;

(m)        the Amended and Restated License Agreement, dated April 1, 1998, among Warner Bros. Consumer Products Division, DC Comics, Parent and Six Flags Theme Parks, Inc. (the " WB License ");

(n)         any Employee Benefit Plan and all insurance policies, trust agreements and other Contracts relating thereto;

(o)         all Contracts and Agreements related exclusively to Excluded Assets (the " Excluded Contracts "); and

(p)         all Permits related exclusively to Excluded Assets; and

(q)         any assets set forth on Schedule 1.2(q) hereto (collectively with the items listed in Sections 1.2(a) through 1.2(p), above, the " Excluded Assets ").

Section 1.3        Excluded Liabilities. Except as expressly set forth in Section 1.4, Buyer shall neither assume nor become responsible for any Liabilities of Sellers at the Closing (collectively, the " Excluded Liabilities "). All Excluded Liabilities shall remain the sole obligation and responsibility of Sellers and Sellers shall promptly discharge any such Liabilities in accordance with the past practices of the Business. Except as expressly set forth in Section 1.4, the Excluded Liabilities shall include all liabilities and obligations arising from or relating to ownership or operation of the Business or the Assets prior to or on the Closing Date, including, without limitation, the following:

(a)         Liabilities relating to or arising in respect of any of the Excluded Assets;

(b)         the fees and expenses incurred by Sellers in connection with negotiating, preparing, closing and carrying out the provisions of this Agreement, including, but not limited to, the fees, disbursements and expenses for Sellers' investment bankers, attorneys, accountants, and any other consultants;

(c)         all salaries, bonuses, sales commissions and consulting fees payable to any current or former employees or agents of Sellers for services rendered prior to or on the Closing Date;

(d)         one-half of personal property Taxes with respect to the Assets payable with respect to 2004, and all Taxes for any Tax period or portion thereof ending on or before the Closing Date (or for any Tax period beginning before and ending after the Closing Date to the extent allocable to the portion of such period up to and including the Closing Date).

(e)         all Liabilities of Parent or Sellers with respect to vacation, sick pay, holiday, and severance payments prior to or on the Closing Date;

(f)          Liabilities under Sellers' Employee Benefit Plans, Sellers' Benefit Arrangements, and any Multiemployer Plan in which Sellers or an ERISA affiliate have been a participating employer;

(g)         any indebtedness for borrowed money of Sellers;

(h)         all Liabilities under Environmental Laws arising from or relating to ownership or operation of the Business and Assets prior to or on the Closing Date, including without limitation liabilities and obligations in respect of any Environmental Condition, and any Environmental Claim related thereto, which concerns the Real Property and any other property previously owned, leased or otherwise used in or by the Business, regardless of whether any such Liabilities or Environmental Claims arising from or relating to pre-Closing periods are asserted before or after the Closing Date (collectively, " Pre-Closing Environmental Liability "); and

(i)          all Liabilities, including without limitation, defense costs, arising from and relating to any pending or threatened worker's compensation or other litigation or claims arising from events or incidents prior to or on the Closing Date.

            Section 1.4        Assumed Liabilities. Buyer shall assume, pay, fulfill, perform or otherwise discharge (i) the Liabilities set forth on Schedule 1.4 , (ii) all Liabilities of Sellers with respect to Prepaid Revenue (clauses (i) and (ii) together, the " Scheduled Liabilities "), (iii) the Liabilities of Sellers arising and to be performed after the Closing under the Permits, Personal Property Leases, and Contracts and Agreements (including Liabilities with respect to Contracts and Agreements for goods or services that are delivered or performed after the Closing Date), and (iv) one-half of the personal property Taxes with respect to the Assets payable with respect to 2004, and, except as otherwise provided in Section 1.9(a), all Liabilities for Taxes for any Tax period or portion thereof beginning after the Closing Date (or for any Tax period beginning before and ending after the Closing Date to the extent allocable to the portion of such period after the Closing Date) (clauses (i)-(iv), collectively, the " Assumed Liabilities ").

Section 1.5        Purchase Price. The purchase price (the " Purchase Price ") to be paid by the Buyer for the Assets is One Hundred Forty-Four Million Two Hundred Fifty Thousand Dollars ($144,250,000) minus the Final Scheduled Liabilities Valuation (as defined in Section 1.7(d) below). At the Closing, the Buyer shall pay the Sellers a closing payment (the " Closing Payment ") of One Hundred Forty-Four Million Two Hundred Fifty Thousand Dollars ($144,250,000) minus the Estimated Scheduled Liabilities Valuation (as defined in Section 1.7(a) below) by wire transfer of federal funds to an account or accounts designated by Sellers with notification of receipt of funds by Sellers' bank on the Closing Date. Any difference between the Purchase Price and the Closing Payment shall be paid by the Buyer or Sellers, as appropriate, pursuant to the terms of Section 1.7(e).

Section 1.6        Closing Date. The closing of the Purchase and Sale of the Assets in the Transaction contemplated by this Agreement (the " Closing ") will take place at 9:00 a.m., Eastern Standard Time on April 8, 2004, in the offices of Squire, Sanders & Dempsey L.L.P., 4900 Key Tower, 127 Public Square, Cleveland, Ohio 44114 or at such other place or on such other date as is mutually agreeable to the parties; provided, however, that if any of the conditions to Closing set forth in Section 8.1 of this Agreement have not been satisfied or waived by both parties hereto on or before such date and time, then the Closing will occur at the foregoing place and time on the third business day after such condition has been satisfied or waived, but in no event shall the Closing occur after May 14, 2004. The date of the Closing is herein referred to as the " Closing Date ."

Section 1.7        Post-Closing Adjustment

(a)         On or prior to the Closing Date, Sellers shall deliver to Buyer a statement setting forth Sellers' estimate of the aggregate value of the Scheduled Liabilities (the " Estimated Scheduled Liabilities Valuation "), including an itemized list showing Sellers' estimate of each of the Scheduled Liabilities. The Estimated Scheduled Liabilities Valuation shall be prepared (i) in accordance with GAAP, and (ii) on a basis consistent with the preparation of the Financial Statements of the Business. The Estimated Scheduled Liabilities Valuation shall be used to calculate the Closing Payment absent manifest error.

(b)         No later than sixty (60) days after the Closing Date, Buyer shall prepare and deliver to Sellers a statement setting forth the aggregate value of the Scheduled Liabilities as of the Closing Date (the " Closing Date Liabilities Valuation "), including an itemized list showing Buyer's determination of the value of each of the Scheduled Liabilities. The Closing Date Liabilities Valuation shall be prepared (i) in accordance with GAAP, and (ii) on a basis consistent with the preparation of the Financial Statements of the Business.

(c)         After receipt of the Closing Date Liabilities Valuation, Sellers shall have thirty (30) days (the " Sellers' Review Period ") to review it. If, within Sellers' Review Period, Sellers notify Buyer in writing that they object to any item(s) on the Closing Date Liabilities Valuation and specify the item(s) and amount(s) in dispute and the basis for such dispute (the " Sellers' Amendment Notice "), the parties shall use their best efforts to reach agreement in respect of the disputed items within the fifteen (15) day-period (the " Resolution Period ") following the delivery of Sellers' Amendment Notice. Any item(s) on the Closing Date Liabilities Valuation not identified in writing as a disputed item within Sellers' Review Period shall be deemed to have been accepted by Sellers and not subject to any further review or change. If no Sellers' Amendment Notice is received by Buyer during Sellers' Review Period, the Closing Date Liabilities Valuation shall be deemed accepted by Sellers.

(d)         If at the conclusion of the Resolution Period the parties have not reached an agreement on Sellers' objections, then all amounts and issues remaining in dispute shall be submitted by Sellers and Buyer to a Neutral Accountant. The fees, costs and expenses of the Neutral Accountant shall be borne proportionately by Buyer and Sellers to the extent that each party's calculation of the aggregate value of the Scheduled Liabilities differs from the final Scheduled Liabilities Valuation as finally determined by the Neutral Accountant. All costs and expenses incurred by the parties in connection with resolving any dispute under this Section 1.7 before the Neutral Accountant shall be borne by the party incurring such cost and expense. The Neutral Accountant shall act as an arbitrator to determine only those issues still in dispute at the end of the Sellers' Review Period. The Neutral Accountant's determination shall be made within forty-five (45) days after its engagement, shall be set forth in a written statement delivered to the Sellers and Buyer and shall be final, binding, conclusive and nonappealable for all purposes hereunder. The term " Final Scheduled Liabilities Valuation " shall mean the aggregate value of the Scheduled Liabilities as agreed to by Sellers and Buyer in accordance with Section 1.7(c) or the aggregate value of the Scheduled Liabilities resulting from the determination made by the Neutral Accountant in accordance with this Section 1.7(d) (in addition to those items theretofore agreed to by Sellers and Buyer during the Resolution Period or otherwise in accordance with Section 1.7(c)).

(e)         If the Purchase Price is less than the Closing Payment, then the excess portion of the Closing Payment over the Purchase Price shall be paid by the Sellers to the Buyer. If the Purchase Price exceeds the Closing Payment, then the excess portion of the Purchase Price over the Closing Payment shall be paid by Buyer to the Sellers. The amount of any payment by Buyer or Sellers pursuant to this Section 1.7(e) plus interest thereon from and including the Closing Date but excluding the date of payment at the rate of 6.0% per annum shall be paid by Buyer or Sellers, as the case may be, by wire transfer of immediately available funds within five business days after the Final Scheduled Liabilities Valuation is agreed to by Sellers and Buyer or is determined by the Neutral Accountant in accordance with this Section 1.7.

Section 1.8        [INTENTIONALLY OMITTED]

Section 1.9        Closing Prorations. The following shall be prorated at or promptly following the Closing Date between the parties:

(a)         Real Estate Taxes and Personal Property Taxes.  Real estate Taxes (including general and special assessments and water and sewerage charges) and personal property Taxes (together, "2004 Property Taxes") for 2004 shall be pro-rated between Sellers and Buyer by apportioning 2004 real estate Taxes between Sellers and Buyer in proportion to the number of days in 2004 up to and including the Closing Date, as to which such Taxes shall be the obligation of Sellers, and the number of days in 2004 following the Closing Date, as to which such Taxes shall be the obligation of Buyer and by apportioning 2004 personal property Taxes one-half to Buyer and one-half to Sellers. No more than thirty (30) days before a payment of 2004 Property Taxes by Sellers, whether in accordance with customary procedures for the payment of Property Taxes, pursuant to audit findings or otherwise in accordance with applicable law, Sellers shall provide Buyer with a copy of the relevant return, assessment or other documentation or a certification of the amount of the payment to be made within such thirty (30) day period (a "Payment Certification"). At least one day before the due date of each payment of 2004 Property Taxes, Buyer shall pay to Sellers, by wire transfer of immediately available funds to an account designated by Sellers in writing, Buyer's share of the total payment shown on such Payment Certification, as determined in accordance with this Section 1.9(a). Sellers shall pay, and indemnify and hold harmless Buyer against, all 2004 Property Taxes timely paid by Buyer to Sellers in accordance with this Section 1.9(a), all 2004 Property Taxes apportioned to Sellers in accordance with this Section 1.9(a) and all Property Taxes with respect to periods prior to 2004. Buyer shall indemnify and hold harmless Sellers against any liability in respect of 2004 Property Taxes apportioned to Buyer pursuant to this Section 1.9(a) that are not timely paid by Buyer to Sellers. This Section 1.9(a) shall survive the Closing until the lapse of the latest statute of limitations applicable to 2004 Property Taxes. Buyer shall, promptly upon receipt, provide to Sellers all notices, bills, assessments and other correspondence relating to 2004 Property Taxes or to Property Taxes for any Tax period or portion thereof ending on or before the Closing Date (or for any Tax period beginning before and ending after the Closing Date to the extent allocable to the portion of such period up to and including the Closing Date).

(b)         Real Property Transfer Taxes and Recording Fees. Sellers and Buyer shall each pay one-half of any transfer Taxes and recording fees assessed on the conveyance of the Real Property at Closing.

(c)         Utilities. Sellers shall endeavor to have all meters read and final bills rendered for all utilities servicing the Business including, without limitation, water, sewer, gas and electricity, for the period to and including the Closing Date. Sellers shall pay all bills for such utilities for the period to and including the Closing Date by the due dates thereof. The provisions of this Section shall survive the Closing for a period of one (1) year.

(d)         Personal Property Leases, Contracts and Agreements and Permits. Sellers and Buyer shall make such prorations and adjustments under all Personal Property Leases, Contracts and Agreements and Permits as shall be reasonably necessary to reflect Sellers' responsibility thereunder for the period of time prior to and including the Closing and Buyer's responsibility thereunder for the period of time after the Closing Date.

                        (e)         Errors. If any errors or omissions are made at the Closing regarding adjustments or prorations, the parties shall make the appropriate corrections promptly after the discovery thereof. The provisions of this Section shall survive the Closing for a period of one (1) year.

            Section 1.10      Consent of Third Parties. Nothing in this Agreement nor the consummation of the Transaction contemplated hereby shall be construed as an attempt or agreement to assign any Asset, including any Contract and Agreement, Permit, Real Property Lease, Personal Property Lease, certificate, approval, authorization or other right, which by its terms or by applicable law is nonassignable without the consent of a third party or a governmental body or is cancelable by a third party in the event of an assignment (" Nonassignable Assets ") unless and until such consent, approval or authorization, or replacement thereof, shall have been obtained. With respect to such Nonassignable Assets, Sellers shall, and shall cause their respective affiliates to, use their commercially reasonable efforts to cooperate with Buyer at its request for up to 180 days following the Closing Date in endeavoring to obtain such consents promptly; provided, however, that such efforts shall not require Sellers or any of their respective affiliates to incur any actual out-of-pocket costs payable to any third party or provide any financial accommodation or to remain secondarily or contingently liable for any Assumed Liability to obtain any such consent. Buyer and Sellers shall use their respective commercially reasonable efforts to obtain, or cause to be obtained, any consent, substitution, approval or amendment required to novate all Liabilities under any and all Contracts and Agreements or other Liabilities that constitute Assumed Liabilities or to obtain in writing the unconditional release of Sellers and their respective affiliates so that, in any such case, Buyer shall be solely responsible for such Liabilities. To the extent permitted by applicable law, in the event consents or approvals to the assignment thereof cannot be obtained, such Nonassignable Assets shall be held, as of and from the Closing Date, by Sellers or the applicable affiliate of Sellers in trust for Buyer and the covenants and obligations thereunder shall be performed by Buyer in Sellers' or such affiliate's name and all benefits and obligations existing thereunder shall be for Buyer's account. Sellers shall take or cause to be taken at Buyer's expense such actions in its name or otherwise as Buyer may reasonably request so as to provide Buyer with the benefits of the Nonassignable Assets and to effect collection of money or other consideration that becomes due and payable under the Nonassignable Assets, and Sellers or the applicable affiliate of Sellers shall promptly pay over to Buyer all money or other consideration received by it in respect of all Nonassignable Assets. As of and from the Closing Date, each of the Sellers on behalf of itself and its affiliates authorizes Buyer, to the extent permitted by applicable law and the terms of the Nonassignable Assets, at Buyer's expense, to perform all the obligations and receive all the benefits of Sellers or their respective affiliates under the Nonassignable Assets and appoints Buyer its attorney-in-fact to act in its name on its behalf or in the name of the applicable affiliate of Sellers and on such affiliate's behalf with respect thereto and Buyer agrees to indemnify and hold Sellers and their respective affiliates, agents, successors and assigns harmless from and against any and all Liabilities and Losses based upon, arising out of or relating to Buyer's performance of, or failure to perform, such obligations under the Nonassignable Assets, except for those Material Contracts that are not identified on Schedule 2.13 .

ARTICLE II
Representations and Warranties of Parent and Sellers

In order to induce Buyer to enter into this Agreement, Parent and Sellers hereby represent, warrant, and agree as follows:

Section 2.1        Parent and Sellers.

(a)         Sellers are duly organized and validly existing corporations or limited liability companies, as applicable, in good standing under the laws of the State of Ohio, and have all requisite power and authority, corporate and otherwise, to own, lease, use and operate their respective Assets and the Business as now conducted.

(b)         Parent is a duly organized and validly existing corporation, in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to own, lease, use and operate its properties and business as now conducted.

Section 2.2        Corporate Power and Authority. Each of Parent and Sellers has full power and authority, corporate and otherwise, to execute and deliver this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement and the consummation of the Transaction contemplated hereby have been duly and validly authorized by the Boards of Directors or the Members of each of Parent and Sellers. No other corporate acts or proceedings on the part of Parent, Sellers or any other Person are necessary to authorize this Agreement or the consummation of the Transaction contemplated hereby. This Agreement has been duly executed and delivered by each of Parent and Sellers and, when duly executed and delivered by the Buyer, this Agreement will constitute a valid and legally binding obligation of, and will be enforceable against, each of Parent and Sellers in accordance with its terms, except as enforceability may be affected by principles of equity, bankruptcy, insolvency, or creditors' rights.

Section 2.3        Conflicts, Consents and Approvals. Except as specifically set forth on Schedule 2.3 hereto, neither the execution and delivery of this Agreement, nor the consummation of the Transaction contemplated hereby, nor compliance by Parent or Sellers with any of the provisions hereof, will: (i) result in the creation of any material Encumbrance upon any of the Assets; (ii) violate any material order, writ, injunction, decree, or any statute, rule or regulation applicable to Parent, Sellers or any of the Assets; (iii) violate any provision of the Certificates of Incorporation, Bylaws or Operating Agreement of Parent or Sellers, or (iv) require any action or consent or approval of, or review by, or registration with any third party, court, or governmental body or other agency, instrumentality, or authority, other than as required by the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (the " HSR Act ") and for consents for the assignment of the Permits, the Contracts and Agreements and the Personal Property Leases that require consent by a third party in connection with the consummation of the Transaction.

Section 2.4        Title to Tangible Personal Property. Except as set forth on Schedule 2.4 , the Sellers have good title to the tangible personal property material to the Business and included in the Assets, free and clear of all mortgages, liens, security interests, charges, encumbrances or other title defects in all material respects, except for the liens of current state and local taxes not yet due and payable.

Section 2.5        Title to Real Property; Existing Surveys. The Sellers have good and insurable fee simple title to all of the Owned Real Property and a valid leasehold interest in all Leased Real Property, free and clear of all Encumbrances and other title defects other than Permitted Exceptions. The term " Permitted Exceptions " shall mean (a) those exceptions to title shown in Schedule B, Section II of the Title Commitments and those matters shown on the Surveys which are not objected to by Buyer pursuant to, and in accordance with, Section 4.9 of this Agreement; (b) any and all present and future zoning restrictions, regulations, requirements, laws and ordinances of any City, Town or Village in which the Owned Real Property lies and of boards, bureaus, commissions, departments and bodies of any Municipal, County, State or Federal sovereign or other governmental authority now or hereafter having or acquiring jurisdiction of the Real Property or the use and improvement thereof; (c) street widenings, proposed or in existence, or any changes of grade, proposed or in existence; (d) statutory liens for current and past Taxes, if any, and other governmental charges for the current fiscal year, which are not yet due and payable or the amount or validity of which is being contested in good faith by appropriate proceedings provided an appropriate reserve is established therefore; (e) those "standard exceptions" from coverage set forth as Items 2, 3 and 6 of Schedule B, Section II, of each of the Title Commitments, provided that the inclusion of this subsection (e) shall not be construed to limit, impair or otherwise affect Buyer's right to object to items shown on the Surveys as set forth in Section 4.9 of this Agreement; (f) parties in possession of all or part of the Owned Real Property pursuant to any contract, concession agreement, service agreement or license agreement which is listed on the Disclosure Schedules to this Agreement; (g) any state of facts shown on the Existing Surveys, provided such state of facts would not reasonably be expected to materially adversely impact, either individually or in the aggregate, the operation of the Business as presently conducted or the current use or value of the Owned Real Property; (h) variations between the record lot lines of the Owned Real Property and those shown on the tax map, if any, provided the same would not reasonably be expected to materially adversely impact, individually or in the aggregate, the operation of the Business as presently conducted or the current use or value of the Owned Real Property, provided however, that the tax parcels will include all of the land comprising the Owned Real Property and no other land, except non-material parcels of land resulting from the shifting of the water-line in Geauga Lake, other non-material parcels of a similar size and value and any parcels identified as easements or other lessor rights; and (i) any other covenants, restrictions, easements, agreements, defects or other matters affecting, or imperfections in, title to the Owned Real Property, or any part thereof, which would not reasonably be expected to materially adversely impact, individually or in the aggregate, the operation of the Business as presently conducted or the current use or value of the Owned Real Property, and provided that none of the foregoing shall constitute Objections to the Title Policy. Except as set forth on Schedule 2.5 or Schedule 2.9, all Improvements used in the conduct of the Business are in good and useable condition, reasonable wear, tear and obsolescence excepted, and conform, in all material respects, with all existing applicable ordinances, codes and regulations in effect as of the date hereof.

Section 2.6        Litigation. Except as set forth on Schedule 2.6 hereto, (i) there is no action, suit or proceeding pending or, to the best of Sellers' Knowledge, threatened against the Sellers or any affiliate thereof, with respect to the Business or the Assets, at law, in equity, by way of arbitration or before any governmental department, commission, board or agency, (ii) to the Sellers' Knowledge the Sellers are not in default in any material respect with respect to any written order, injunction or decree of any court or governmental department, commission, board or agency and no such written order, injunction or decree is now in effect which restrains the operations of the Business as currently conducted or the sale or use of the Assets, and (iii) except for conducting the operations of the Business in the ordinary course of Business, Sellers are not presently engaged in or aware of any situation which would reasonably be expected to subject Sellers or Buyer to any material litigation, arbitration, order, condemnation proceeding, claim or other legal proceeding or governmental investigation relating to the Business or the Assets.

Section 2.7        Brokerage and Finder's Fees. Sellers have not and will not incur any brokerage, finder's or any other commission or similar fee in connection with the Transaction contemplated by this Agreement.

Section 2.8        Environmental Matters.

(a)         For the purpose of this Agreement:

(i)          " Environmental Claim " shall mean any and all actions, suits, demands, demand letters, claims, liens, notices of noncompliance or violation, investigations or proceedings under Environmental Laws or any permit issued under Environmental Laws relating to a violation of or liability under Environmental Laws (for purposes hereof, a " Demand "), including, without limitation, (A) any and all Demands for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to Environmental Laws and (B) any and all Demands seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment.

(ii)         " Environmental Condition " shall mean any and all conditions relating to soil, surface water, groundwater, stream sediment, air or other environmental media, whether on or migrating from the Real Property that violates applicable standards of Environmental Laws in effect as of the Closing, which shall with respect to the presence of Hazardous Materials in the soil or groundwater be those standards applicable to the properties given their use at the time of Closing, regardless of whether such conditions are discovered before or after the Closing Date and expressly including the post-Closing migration or exacerbation of any condition to the extent that such migration or exacerbation is not caused by Buyer's operation of the Business.

(iii)        " Environmental Laws " shall mean all applicable federal, state and local laws (including common law), rules, ordinances, orders, directives, permits, approvals, decisions or decrees, remediation standards, and regulations relating to pollution or protection of human health or the environment, including, without limitation and whether similar or dissimilar to, any applicable provisions of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the Resource Conservation Recovery Act ("RCRA"), 42 U.S.C. Sec. 6901 et seq. (RCRA), the Clean Water Act 33 U.S.C. Sec. 1251 et seq. (CWA), the Safe Drinking Water Act, 42 U.S.C. Sec. 300f et seq. (SWDA), the Clean Air Act, 42 U.S.C. Sec. 7401 et seq. (CAA), the Occupational Safety and Health Act, 29 U.S.C. 651 et seq. (OSHA), the Toxic Substances Control Act, 15 U.S.C. Sec. 2601 et seq. (TSCA), and the Emergency Planning and Right-to-Know Act of 1986, 42 U.S.C. Sec. 11001 et seq. (EPCRA).

(iv)        " Hazardous Materials " shall mean (a) any element, compound or chemical that is characterized, regulated or defined as a contaminant, pollutant, hazardous or extremely hazardous substance, or a hazardous, medical, biohazardous, infectious or special waste under Environmental Laws; (b) petroleum, petroleum-based or petroleum-derived products; (c) polychlorinated biphenyls (" PCBs "); (d) any substance exhibiting a hazardous waste characteristic including but not limited to corrosivity, ignitibility, toxicity or reactivity as well as any radioactive or explosive materials; and (e) any asbestos-containing materials.

(v)         " Release " means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the indoor or outdoor environment (including, without limitation, ambient air, surface water, groundwater and surface or subsurface strata) of Hazardous Materials.

a.        Except as set forth herein or on Schedule 2.8(b) hereto:

(i)          To the Knowledge of Sellers, none of the Real Property is identified on any current list of contaminated or potentially contaminated property established by the United States Environmental Protection Agency or the Ohio Environmental Protection Agency;

(ii)         Sellers' and, to their Knowledge, their predecessors' and affiliates', ownership and operation of the Business and Assets were and are in compliance with all Environmental Laws, except where the failure to comply would not reasonably be expected to have a material impact on the Business as currently conducted;

(iii)        During Sellers' ownership of the Real Property and, to their Knowledge, at all other times, Hazardous Materials have not been managed, manufactured, produced or generated by, used on, treated or stored on, or transported to or from, the Real Property, other than as normally incidental to the conduct of the Business and in a manner that would not reasonably be expected to give rise to material Liabilities under Environmental Laws;

(iv)        To the Knowledge of Sellers, there has been no Release of Hazardous Materials at, on, under or from any of the Real Property other than as would not be reasonably expected to result in an Environmental Claim, which if adversely decided would reasonably be expected to result in the owner of such Real Property incurring material liabilities under Environmental Laws;

(v)         There are no pending, or, to the Knowledge of Sellers, threatened Environmental Claims including, without limitation investigations by any federal, state or local governmental entity, against or concerning Sellers with respect to the Business, Assets or Real Property;

(vi)        To the Knowledge of Sellers, there are no conditions or circumstances which are reasonably likely to prevent or materially interfere with the use of the Real Property or the operation of the Business or the Assets as currently conducted in material compliance with Environmental Laws; and

(vii)       There exists no Encumbrance created under Environmental Laws on any of the Real Property which would reasonably be expected to have a Material Adverse Effect.

This Section 2.8 is the sole and exclusive representation and warranty with respect to environmental matters.

Section 2.9        Condition of Assets. Except as set forth on Schedule 2.5 and Schedule 2.9 , the Assets are, in all material respects, as of the date hereof, in good repair and operating condition, ordinary wear and tear excepted, as is suitable for their intended use. Except as set forth on Schedule 2.9 , all of the Assets that are amusement rides (including related equipment) have been operated and maintained in all material respects in substantial compliance with all applicable laws and regulations of the State of Ohio and, to the extent any such Assets have been inspected by the State of Ohio for operation during the 2004 season, such Assets have been approved for operation during the 2004 season. The Sellers have operated and maintained all such Assets in accordance with prudent practice consistent with industry standards applicable to the operation of a regional amusement park, including, without limitation, compliance in all material respects with applicable manufacturers' written recommendations.

Section 2.10      Trademarks, Etc. To the Sellers' Knowledge, none of the past or present employees, officers, directors, shareholders or affiliates of the Sellers has any rights in any of the Intangibles Acquired by Asset Purchase. The Sellers have not granted any outstanding licenses or other rights to Intangibles Acquired by Asset Purchase except as described on Schedule 2.10 , and the Sellers are not liable in any material respect, nor have the Sellers made any contract or arrangement whereby they may become liable in any material respect, to any person for any royalty or other compensation for the use of any Intangibles Acquired by Asset Purchase. The consummation of the Transaction contemplated hereby will not result in the loss or impairment of Buyer's right to own or use any Intangibles Acquired by Asset Purchase in any material respect. To Sellers' Knowledge the operations of the Business as presently conducted do not infringe any rights of others to the Intangibles Acquired by Asset Purchase or to any intellectual property owned by others.

Section 2.11      Financial Statements; Attendance.

(a)         Sellers have delivered to Buyer true, correct and complete copies of the following financial statements (collectively the " Financial Statements ") of the Business: (i) balance sheets and statements of income, as of and for the periods ended December 31, 2001, December 31, 2002 and December 31, 2003; and (ii) balance sheets and statements of income (the " Most Recent Financial Statements "), as of and for the two month period ended March 28, 2004 (the " Most Recent Fiscal Month End "). Except as set forth on Schedule 2.11(a) hereto, the Financial Statements (i) were prepared in accordance with generally accepted accounting principles in the United States consistently applied; and (ii) were prepared in accordance with the books and records of the Business and present fairly in all material respects the financial condition and results of operations of the Business as of the dates thereof and for the periods referred to therein.

(b)         Schedule 2.11(b) accurately sets forth the attendance at the Business during 2001, 2002 and 2003.

Section 2.12      Absence of Changes or Events. Since December 31, 2003, except as set forth on Schedule 2.12 hereto, Sellers have operated the Business in the ordinary course of business consistent with past practices. Since December 31, 2003, Sellers have not:

(a)         Mortgaged, pledged or granted any other Encumbrance on any portion of the Assets;

(b)         Suffered any material change in the Assets or any material change in the condition (financial or otherwise) or results of operations of the Business or any event, occurrence or circumstance that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect;

(c)         Suffered any damage, destruction or other casualty loss (whether or not covered by insurance), condemnation or other taking affecting the Assets or the Business in any material respect;

(d)         Encountered any actual or threatened labor union organizing activity or collective bargaining negotiation, had any actual or threatened employee strikes, work stoppages, slow-downs or lock-outs, terminated any Employees for cause (other than in the ordinary course) or experienced any material change in its relationship with employees or the agents or independent contractors of the Business;

(e)         Except for customary salary and wage increases as of January 1, 2004, and except as set forth in Schedule 2.12 , made any material change in the rate of compensation, commission, bonus or other direct or indirect compensation payable or to become payable to any employee of the Sellers whose primary duties are at the Business, or any alteration in the benefits payable to any such employee.

Section 2.13      Contracts.

(a)         Schedule 2.13(a) lists all Contracts and Agreements, whether written or oral, including amendments thereto, that fall into one or more of the following categories (each a "Material Contract" and, collectively, the " Material Contracts "):

(i)          Any agreement involving the expenditure by the Business of more than $50,000 and not cancelable upon notice by Sellers without penalty or consent within ninety (90) days;

(ii)         Any agreement relating to capital expenditures, providing for the payment of an aggregate amount of more than $50,000 and not cancelable upon notice by Sellers without penalty or consent within ninety (90) days;

(iii)        Any agreement, contract, lease, plan, arrangement and/or commitment relating to the grant or receipt by Sellers of any license or royalty fees or other payment obligations to or from any Person;

(iv)        Except for those employment agreements that are not assumed pursuant to this Agreement, any employment agreement, contract, policy, confidentiality or proprietary rights agreement, and/or commitment with or between Sellers and any of their respective employees, directors or officers, including without limitation those relating to severance;

(v)         Partnership, joint venture or other cooperative arrangements or agreements involving a sharing of profits and expenses;

(vi)        Any contract, agreement or arrangement containing covenants limiting the freedom of the Business to compete in any line of business with any person, group association or business entity or in any area or territory;

(vii)       Any other agreement, contract and commitment the assignment of which either requires consent by a third party in connection with the consummation of the Transaction or that is entered into by Sellers that is outside of the ordinary course of the Business; and

(viii)       Any lease pertaining to the use of any portion of the Real Property by third parties.

(b)         Sellers have delivered to Buyer complete and correct copies of all Material Contracts together with all amendments thereto. All of the Material Contracts are the valid and binding obligations of the Sellers and, to the Knowledge of Sellers, the other respective parties thereto, are in full force and effect and as to Sellers are enforceable in accordance with their respective terms, except as the enforcement may be affected by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other laws relating to or limiting creditors' rights generally or by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity.

Section 2.14      Tax Matters.

(a)         Except as set forth on Schedule 2.14(a) , (i) each of the Sellers has filed all Tax Returns that it was required to file related to the Business or the Assets, (ii) all such Tax Returns were correct and complete in all respects, (iii) all Taxes related to the Business or the Assets owed by the Sellers (whether or not shown on any Tax Return) have been paid, (iv) none of the Sellers is the beneficiary of any extension of time within which to file any Tax Return related to the Business or the Assets, (v) no claim has ever been made by an authority in a jurisdiction where any of the Sellers does not file Tax Returns that it is or may be subject to taxation by that jurisdiction related to the operation of the Business or the Assets, and (vi) there are no Encumbrances on any of the assets of any of Sellers that arose in connection with any failure (or alleged failure) to pay any Tax related to the Business or the Assets.

(b)         Except as set forth on Schedule 2.14(b) , Sellers have withheld and paid all Taxes required to have been withheld and paid, related to the Business or the Assets, in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder, or other third party, and all Forms W-2 and 1099 required with respect thereto have been properly completed and timely filed.

(c)         Except as set forth on Schedule 2.14(c) , (i) no shareholder of any Seller or director or officer (or employee responsible for Tax matters) of any Seller expects any authority to assess any additional Taxes related to the Business or the Assets for any period for which Tax Returns have been filed; and (ii) there is no dispute or claim concerning any Tax Liability of Sellers related to the Business or the Assets either (A) claimed or raised by any authority in writing, or (B) as to which any Seller and the directors and officers (and employees responsible for Tax matters) of any Seller has Knowledge based upon personal contact with any agent of such authority.

(d)         Except as set forth on Schedule 2.14(d) , no Sellers are a party to any Tax allocation, indemnification or sharing agreement that will (i) remain in effect subsequent to the Transaction and (ii) impose any obligation on Buyer or any of its affiliates.

(e)         Except as set forth on Schedule 2.14(e) , all amounts with respect to the Business or the Assets required to be collected or withheld by Sellers with respect to Taxes have been duly collected or withheld and any such amounts that are required to be remitted to any taxing authority have been duly remitted.

Section 2.15      Employee Benefits.

(a)         Schedule 2.15(a) attached hereto sets forth and identifies (i) each material employee benefit plan (an " Employee Benefit Plan "), as defined in Section 3(3) of ERISA, which is an employee welfare benefit plan, as defined in Section 3(1) of ERISA (a " Welfare Plan "); (ii) each material Employee Benefit Plan which is an employee pension benefit plan, as defined in Section 3(2) of ERISA (a " Pension Plan "); and (iii) each bonus, deferred compensation, incentive compensation, holiday, vacation, termination, severance pay, sick pay, sick leave, disability, tuition refund, service award, company car, scholarship, relocation, award, program, policy or practice, other than an Employee Benefit Plan (a " Benefit Arrangement "), maintained by Sellers for any active, retired or former employee of the Business (a " Business Employee ").

(b)         No employees of Sellers or any subsidiary thereof or any trade or business (whether or not incorporated) that is part of the same controlled group or under common control with or part of an affiliated service group that includes any Seller within the meaning of Section 414(b), (c), (m) or (o) of the Code and Section 210 of ERISA currently participate or ever have participated in any multiemployer plan, as defined in Section 3(37) of ERISA (a " Multiemployer Plan ") or a voluntary employees beneficiary association, as defined in Section 501(c)(9) of the Code (a " VEBA "). Neither Sellers nor any ERISA Affiliate (as defined in the Code) have ever been a participating employer in any Multiemployer Plan or sponsored a VEBA.

            (c)         Except as indicated on Schedule 2.15(c) , with respect to each Employee Benefit Plan maintained for any Business Employee and each related funding arrangement of Sellers and any ERISA Affiliate: (i) each such Employee Benefit Plan has been maintained and administered in all material respects with all applicable laws, including, without limitation ERISA and the Code; (ii) each such Employee Benefit Plan which is a Pension Plan intended to qualify under Section 401(a) of the Code has been determined to be so qualified by the Internal Revenue Service; (iii) each trust maintained in conjunction with such Employee Benefit Plan which is a Pension Plan intended to qualify under Section 401(a) of the Code has been determined to be exempt from taxation by the Internal Revenue Service; (iv) none of such Employee Benefit Plans which are Pension Plans or the related trusts, or any administrator or trustee thereof, or party-in-interest or disqualified person thereto has engaged in a transaction that could cause any of them to be liable for a civil penalty under Section 409 or 502(i) or any other section of ERISA or result in a tax under Section 4975 or 4976 or any other section of Chapter 43 of Subtitle D of the Code; and (v) all amounts required to be paid to each such Employee Benefit Plan on or before the Closing Date has been paid within the time periods required by the Plans or by law.

            (d)         No "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Pension Plan of Sellers or an ERISA Affiliate;

            (e)         No Welfare Plan of Sellers or an ERISA Affiliate provides retiree medical or retiree life insurance benefits.

            (f)          Each Welfare Plan of Sellers which is a group health plan for any Business Employee has been operated in compliance in all respects with the requirements of Sections 601 through 608 of ERISA and Section 4980B of the Code relating to the continuation of coverage under certain circumstances in which coverage would otherwise cease.

                        (g)         Any Employee Benefit Plan of Sellers for any Business Employee designed to satisfy the requirements of Section 125, 401(k), 409, 501(c)(9), 4975(e)(7) and/or 4980B of the Code satisfies such section in all respects.

                        (h)         Except as indicated on Schedule 2.15(h) , there is no audit which is in process by, or for which notification has been received from the Department of Labor, Internal Revenue Service, or Pension Benefit Guaranty Corporation with respect to any Pension Plan of Sellers.

(i)          There are no claims pending by, or on behalf of, any of the Employee Benefit Plans of Sellers by any current or former Business Employee or beneficiary thereof, other than routine benefit claims.

Section 2.16      Insurance. Except as set forth in Schedule 2.16 , as of the date hereof, there is no claim with respect to the Business pending under any of Sellers' insurance policies (the " Insurance Policies ") as to which coverage has been questioned, denied or disputed by the underwriters of such Insurance Policies or any requirement by any insurer to perform work which has not been satisfied. Schedule 2.16 also sets forth, as of the date hereof, a true and complete list of claims pertaining to the Business made in respect of the Insurance Policies for the period since January 1, 2001. All premiums payable on or before the Closing Date under all Insurance Policies have been paid and Sellers and the Business are otherwise in compliance in all material respects with the terms and conditions of all such Insurance Policies. All Insurance Policies are in full force and effect. Except as provided in Schedule 2.16 , claims under all Insurance Policies are payable on an "occurrence basis" such that a claim of any type covered thereunder that is asserted after the Closing Date for an event that occurred prior thereto would be covered by such Insurance Policies.

Section 2.17      Compliance with Law. Other than with respect to the matters set forth in Sections 2.3, 2.6, 2.8, 2.9, 2.14 and 2.15, Sellers have complied in all material respects with all laws, rules, regulations and orders applicable as of the date hereof to the conduct of the Business (including, without limitation, the operation by Sellers of the Real Property) as and in the manner conducted by Sellers, including, without limitation, zoning, use, noise, pollution, environmental, building, fire, safety and health laws and governmental regulations. Sellers have obtained all material Permits required by applicable law or governmental regulation in connection with the Business as now conducted. Except as set forth on Schedule 2.17 , as of the date hereof, to Sellers knowledge, there are no proposed laws, rules, regulations or orders, or any judgments, decrees or other proceedings, which would be applicable to the Business or Assets and not applicable to any other amusement park currently operating in the State of Ohio, which would reasonably be expected to adversely affect the Business or Assets, either before or after the Closing.

Section 2.18.     No Other Representations or Warranties. Except for the representations and warranties contained in this Article II (as modified by the Schedules hereto), neither Sellers nor any other person makes any other express or implied representation or warranty with respect to Sellers, the Business, the Assets, the Assumed Liabilities or the Transaction, and Sellers disclaim any other representations or warranties, whether made by Sellers, any affiliate of Sellers or any of their respective officers, directors, employees, agents or representatives.

 

ARTICLE III
Representations and Warranties of Buyer

In order to induce Sellers to enter into this Agreement, Buyer hereby represents, warrants, and agrees as follows:

Section 3.1        Organization and Standing of Buyer. Buyer is a duly organized and validly existing limited partnership, in good standing under the laws of the State of Delaware, and has all requisite power and authority, partnership and otherwise, to own, lease, use and operate its properties as now conducted. Buyer (or a wholly-owned subsidiary of Buyer that is designated by Buyer pursuant to Section 12.3 to carry out all or part of the Transaction) is duly qualified to do business and is in good standing as a foreign corporation in the State of Ohio.

Section 3.2        Partnership Power and Authority. Buyer has full power and authority, partnership and otherwise, to execute and deliver this Agreement and to carry out its obligations hereunder. The execution and delivery of this Agreement and the consummation of the Transaction contemplated hereby have been duly and validly authorized by all necessary partnership action of Buyer. No other partnership acts or proceedings on the part of Buyer or its unitholders are necessary to authorize this Agreement or the consummation of the Transaction contemplated hereby. This Agreement has been duly executed and delivered by the Buyer and, when duly executed and delivered by the Sellers, this Agreement will constitute a valid and legally binding obligation of, and will be enforceable against, Buyer in accordance with its terms, except as enforceability may be affected by principles of equity, bankruptcy, insolvency, or creditor's rights.

Section 3.3        Conflicts, Consents and Approvals. Neither the exe