Exhibit 10.3
LIMITED RENT GUARANTY
(Six Flags)
THIS
LIMITED RENT GUARANTY (Six Flags) (this "Guaranty") is made as of
the
___ day of __________, 2007 (the "Effective Date"), by and among
(i) SIX FLAGS,
INC., a Delaware corporation ("Guarantor"), (ii) CNL INCOME DARIEN
LAKE, LLC,
CNL INCOME ELITCH GARDENS, LLC, CNL INCOME ENCHANTED VILLAGE, LLC,
CNL INCOME
FRONTIER CITY, LLC, CNL INCOME SPLASHTOWN, LLC, CNL INCOME
WATERWORLD, LLC and
CNL INCOME WHITE WATER BAY, LLC, each a Delaware limited liability
company (the
"Real Property Landlord(s)"); and (iii) CNL INCOME DARIEN LAKE TRS
CORP., CNL
INCOME ELITCH GARDENS TRS CORP., CNL INCOME ENCHANTED VILLAGE TRS
CORP., CNL
INCOME FRONTIER CITY TRS CORP., CNL INCOME SPLASHTOWN TRS CORP.,
CNL INCOME
WATERWORLD TRS CORP. and CNL INCOME WHITE WATER BAY TRS CORP., each
a Delaware
corporation (the "Personal Property Landlord(s)" and, collectively
with the Real
Property Landlords, the "Landlord(s)").
RECITALS:
A. Six
Flags Theme Parks, Inc., Funtime, Inc., Elitch Garden Holdings
G.P., Frontier City Properties, Inc., SF Splashtown GP Inc., SF
Splashtown Inc.
and Spring Beverage Holding Corp. (collectively, the "Securities
Sellers"), as
"Sellers," and PARC 7-F Operations Corporation, a Florida
corporation ("PARC"),
as "Buyer," entered into that certain Securities Purchase Agreement
dated
January 10, 2007 (the "Securities Purchase Agreement"), pursuant to
which, among
other things, Securities Sellers sold and transferred to PARC, and
PARC
purchased and acquired from Securities Sellers, all of the equity
interests and
partnership interests, as applicable, in: (i) Darien Lake Theme
Park and Camping
Resort, Inc., (ii) Elitch Gardens, L.P., (iii) Enchanted Parks,
Inc., (iv)
Frontier City Limited Partnership, (v) Premier Waterworld Concord,
Inc., and
(vi) Tierco Water Park, Inc. (collectively, the "Owners").
B. PARC,
as "Seller" and CNL Income Properties, Inc., a Maryland
corporation ("CIP"), as "Purchaser" entered into that certain Asset
Purchase
Agreement dated January 10, 2007, as assigned by CIP to the
Landlords pursuant
to that certain Assignment of Asset Purchase Agreement dated
__________ __, 2007
(together, the "Asset Purchase Agreement"), pursuant to which
and
contemporaneously with the closing of the transactions under the
Securities
Purchase Agreement, PARC has caused the Owners to sell, transfer
and convey to
Landlords all of the Assets (as defined in the Asset Purchase
Agreement).
Accordingly, as of the Effective Date, each Real Property Landlord
is the fee
and/or leasehold owner of the real property, improvements and
certain personal
property related to the theme park facility set forth opposite its
name on
Exhibit A attached hereto (the "Property(ies)") and each Personal
Property
Landlord is the owner of certain other personal property (which
other personal
property together with the Properties shall hereinafter be
collectively referred
to as the "Proper(ties)") related to the theme park facility set
forth opposite
its name on Exhibit A attached hereto.
C.
Pursuant to the Asset Purchase Agreement and as a condition
precedent
to the closing thereunder, the Landlords and
____________________,
__________________, __________________, ___________________,
_________________,
__________________ (individually, a "Tenant" and collectively, the
"Tenants")
have entered into those certain lease/sublease agreements set forth
on Exhibit B
attached hereto, governing the leasing of the Properties from
Landlords to
Tenants (the "Lease(s)").
D. Each
Landlord is an Affiliate of each other Landlord, each Tenant is
an
Affiliate of each other Tenant .
E. As a
further condition precedent to the closing under the Securities
Purchase Agreement and the Asset Purchase Agreement, Guarantor has
agreed,
subject to certain terms, conditions and limitations more
particularly set forth
herein, to guarantee payment of Guaranteed Rent under the Leases
(the "Limited
Rent Guaranty (Six Flags)").
F. The
transactions contemplated by the Securities Purchase Agreement
and
the Asset Purchase Agreement are of direct, material and
substantial benefit to
Guarantor.
NOW,
THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are
hereby
acknowledged, Guarantor and Landlords hereby covenant and agree as
follows:
SECTION 1
DEFINED TERMS
Terms not
otherwise defined herein shall have meaning given them in the
Leases. The following terms, as used in this Guaranty, shall have
the meanings
set forth below:
"Accounting Period" shall have the meaning given such term in the
Leases.
"Affiliate" shall have the meaning given such term in the
Leases.
"Aggregate
Amount Funded" shall mean, as of any given point in time, the
Amount Funded for all prior Fiscal Years plus the Amount Funded for
the current
Fiscal Year.
"Amount
Funded" shall mean all Guaranteed Rent paid during a Fiscal
Year
by Guarantor pursuant to the terms of this Guaranty. The Amount
Funded shall be
calculated cumulatively for all Accounting Periods elapsed during a
Fiscal Year.
"Applicable Laws" shall have the meaning given such term in the
Leases.
"Asset
Purchase Agreement" shall have the meaning given such term in
the
Recitals.
"Business
Day" shall have the meaning given such term in the Leases.
"CIP"
shall have the meaning given such term in the Recitals.
"Default"
shall have the meaning given such term in Section 2.A. hereof.
"Event of
Default" shall have the meaning given such term in the Leases.
"Fiscal
Year" shall have the meaning given such term in the Leases.
"Guarantee
Payment Date" shall have the meaning given such term in Section
2.A hereof.
"Guaranteed Rent" shall have the meaning given such term in Section
2.A
hereof.
"Guarantor" shall have the meaning given such term in the
Preamble.
"Guaranty
Funding Limit" shall mean the lesser of (i) one dollar less
than
the total net cash proceeds received by the Parc Guarantors from
the issuance of
equity on a combined basis prior to the closing of the transactions
contemplated
by the Securities Purchase Agreement and (ii) Nine Million Nine
Hundred
Ninety-Nine Thousand Nine Hundred Ninety-Nine and No/100 Dollars
($9,999,999);
provided, however, that the Guaranty Funding Limit shall be reduced
by (x)
$1,000,000 on January 1 of each year during the Guaranty Term plus
(y) any
Amount Funded hereunder, with such reduction to occur automatically
on the date
of funding.
"Guaranty
Term" shall have the meaning given such term in Section 3
hereof.
"Landlord"
shall have the meaning given such term in the Preamble.
"Lease(s)"
shall have the meaning given such term in the Recitals.
"Legal
Requirements" shall have the meaning given such term in the
Leases.
"Limited
Rent Guaranty (PARC)" shall mean that certain Limited Rent
Guarnaty (PARC) of even date herewith among PARC Guarantors and
Landlords.
"Limited
Rent Guaranty (Six Flags)" shall have the meaning given such
term
in the Recitals.
"Overdue
Rate" shall mean, on any date, a per annum rate of interest
equal
to the lesser of (i) twelve percent (12%) or (ii) the maximum rate
then
permitted under applicable law.
"Owners"
shall have the meaning given such term in the Recitals.
"PARC"
shall have the meaning given such term in the Recitals.
"PARC
Aggregate Amount Funded" shall mean the aggregate amount funded
by
the PARC Guarantors pursuant to the Limited Rent Guaranty
(PARC).
"PARC
Guarantor Default Notice" shall have the meaning given such term
in
Section 2.A. hereof.
"Parc
Guarantors" shall mean PARC Management, LLC, a Florida limited
liability company, PARC Operations LLC, a Florida limited liability
company, and
PARC Investors, LLC, a Florida limited liability company.
"PARC
Guarantor Unfunded Rent Due" shall have the meaning given such
term
in Section 2.A. hereof.
"PARC
Guaranty Funding Limit" shall mean the guaranty funding limit
applicable to the PARC Guarantors pursuant to the Limited Rent
Guaranty (PARC).
"Persons"
shall have the meaning given such term in the Leases.
"Personal
Property Landlord(s)" shall have the meaning given such term in
the Preamble.
"Preamble"
shall mean the first paragraph of this Agreement.
"Promissory Note" shall have the meaning given such term in the
Securities
Purchase Agreement.
"Propert(ies)" shall have the meaning given such term in the
Recitals.
"Personal
Property Landlord(s)" shall have the meaning given such term in
the Preamble.
"Recitals"
shall mean paragraphs A through F under the heading "Recitals"
in this Agreement.
"Rent"
shall have the meaning given such term in the Leases.
"Rent
Default Notice" shall have the meaning given such term in
Section
2.A. hereof.
"Rent Due"
shall have the meaning given such term in Section 2.A. hereof.
"Securities Sellers" shall have the meaning given such term in
the
Recitals.
"Tenant(s)" shall have the meaning given such term in the
Recitals.
"Transfer"
shall have the meaning given such term in the Leases.
"Unlawful
Provisions" shall have the meaning given such term in Section
12
hereof.
SECTION 2
GUARANTY
Subject to
the following provisions of this Section 2, Guarantor hereby
absolutely, unconditionally and irrevocably guarantees to Landlord
the full,
complete and timely payment to Landlord of all Rent, up to a
maximum amount
equal to the Guaranteed Funding Limit (collectively, "Guaranteed
Rent"). Subject
to the terms, provisions and limitations of this Guaranty, this
Guaranty is an
absolute, irrevocable and unconditional guaranty of payment. For
purposes
hereof, and notwithstanding anything to the contrary contained in
the Leases, it
is expressly understood and agreed that the Guaranteed Rent
guaranteed hereunder
shall not include any additional amounts, including, without
limitation, any
sums for damages arising from an Event of Default or termination of
the Leases,
specifically including damages computed on the basis of the
acceleration of any
Rent due under the Leases, it being understood and agreed that
Guarantor's
agreement to pay Guaranteed Rent hereunder shall not exceed the
amount of Rent
payable during the Guaranty Term in accordance with the Leases. The
parties
hereto agree to the following:
A. In the
event that Tenant shall fail to pay when due (taking into
account any applicable cure period) any Rent (the "Rent Due") under
the Lease (a
"Default"), Landlords shall deliver written notice of such Default
by Tenant to
Guarantor and to PARC Guarantors (the "Rent Default Notice"). In
the event that
PARC Guarantors fail to pay to Landlords any portion or all of the
Rent Due
within ten (10) calendar days after the Rent Default Notice, the
Landlords shall
provide Guarantor with written notice of any Rent Due (the "PARC
Guarantor
Unfunded Rent Due") that PARC Guarantors have failed or refused to
pay (the
"PARC Guarantor Default Notice"). Guarantor shall pay to Landlords,
the PARC
Guarantor Unfunded Rent Due, within ten (10) calendar days
following Guarantor's
receipt of the PARC Guarantor Default Notice (the "Guarantee
Payment Date").
B. Subject
to the terms, provisions and limitations of this Guaranty, this
Guaranty is a continuing Guaranty and shall remain in full force
and effect
until the termination or expiration of the Guaranty Term.
C.
Guarantor also agrees, as principal obligor and not as a
guarantor
only, to pay to Landlord, in immediately available funds, all
interest on
amounts recoverable under this Guaranty, from the date of Guarantee
Payment Date
until payment, at the Overdue Rate.
F. Any
payment of Rent made to Landlord in accordance with this
Guaranty
shall be deemed to cure any Event of Default under the Lease with
respect solely
as to an Event of Default with resp
