AMENDED AND RESTATED NOTE PURCHASE AND PRIVATE SHELF AGREEMENTShelf Facility Notes |
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EXHIBIT 10
CEDAR FAIR, L.P. and KNOTT'S BERRY
FARM AMENDED AND RESTATED
NOTE PURCHASE $50,000,000 6.68%
Series B Notes due August 24, 2011 Dated as of April 7, 2004
TABLE OF CONTENTS (Not Part of Agreement) Page 1. AMENDMENT AND RESTATEMENT; AUTHORIZATION OF ISSUE OF NOTES 2 1A. Amendment and Restatement of Existing Note Agreement 2 1B. Authorization of Issue of Shelf Notes 2 2. PURCHASE AND SALE OF SHELF NOTES 2 2A. [Intentionally Omitted] 2 2B. Purchase and Sale of Shelf Notes 2 2B(1). Facility 2 2B(2). Issuance Period 3 2B(3). Request for Purchase 3 2B(4). Rate Quotes 4 2B(5). Acceptance 4 2B(6). Market Disruption 4 2B(7). Facility Closings 5 2B(8). Fees 5 2B(8)(i). [Intentionally Omitted] 5 2B(8)(ii). [Intentionally Omitted] 5 2B(8)(iii). Delayed Delivery Fee 5 2B(8)(iv). Cancellation Fee 6 3. CONDITIONS OF RESTATEMENT; CONDITIONS OF CLOSING 6 3A. Conditions of Restatement 6 3A(1). Certain Documents 7 3A(2). Opinion of Company's Counsel 8 3A(3). Representations and Warranties; No Default; Satisfaction of Conditions 8 3A(4). Material Adverse Change 9 3A(5). Fees and Expenses 9 3A(6). Proceedings 9 3B. Conditions of Closing 9 3B(1). Certain Documents. 9 3B(2). Opinion of Purchaser's Special Counsel 11 3B(3). Opinion of Company's Counsel 11 3B(4). Representations and Warranties; No Default; Satisfaction of Conditions 11 3B(5). Purchase Permitted by Applicable Laws 11 3B(6). Payment of Fees 12 3B(7). Material Adverse Change 12 3B(8). Proceedings 12 4. PREPAYMENTS 12 4A(1). Required Prepayments of Series B Notes 12 4A(2). Required Prepayments of Series C Notes 12 4A(3). Required Prepayments of Shelf Notes 13 4B(1). Optional Prepayment with Yield-Maintenance Amount 13 4B(2). Prepayment with Yield-Maintenance Amount Pursuant to Intercreditor Agreement 13 4C. Notice of Optional Prepayment 13 4D. Application of Prepayments 13 4E. Retirement of Notes 13 5. AFFIRMATIVE COVENANTS 14 5A. Financial Statements 14 5B. Inspection of Property 15 5C. Covenant to Secure Note Equally 15 5D. Information Required by Rule 144A 16 5E. Compliance With Environmental Laws 16 5F. Maintenance of Insurance 16 5G. [Intentionally Omitted] 16 5H. Most Favored Covenant Status, etc. 16 5I. Senior Debt 17 5J. Guaranty by Subsidiaries 17 5K. Amendment of 1994 Private Shelf Agreement and Knott's Berry Farm Guaranty of 8.43% Notes 17 6. NEGATIVE COVENANTS 18 6A. Lien, Debt and Other Restrictions 18 6A(1). Liens 18 6A(2). Debt 19 6A(3). Loans, Advances, Investments and Contingent Liabilities 19 6A(4). Sale of Stock and Debt of Subsidiaries 20 6A(5). Merger and Sale of Assets 20 6A(6). Transactions with Related Persons 21 6B. Issuance of Stock by Subsidiaries 21 6C. Consolidated EBITDA Ratio 21 6D. Consolidated Owners' Equity 21 7. EVENTS OF DEFAULT 22 7A. Acceleration 22 7B. Notice of Acceleration 25 7C. Other Remedies 25 8. REPRESENTATIONS, COVENANTS AND WARRANTIES 25 8A(1). Company Organization and Qualification 25 8A(2). Knott's Berry Farm Organization and Qualification 25 8B. Financial Statements 26 8C. Actions Pending 26 8D. Outstanding Debt 26 8E. Title to Properties 26 8F. Taxes 27 8G. Conflicting Agreements and Other Matters 27 8H. Offering of Notes 27 8I. Use of Proceeds 28 8J. ERISA 28 8K. Governmental Consent 28 8L. Environmental Compliance 28 8M. Investment Company Status 29 8N. Disclosure 29 8O. Hostile Tender Offers 29 9. REPRESENTATIONS OF THE PURCHASERS 29 9A. Nature of Purchase 29 9B. Source of Funds 30 10. DEFINITIONS 31 10A. Yield-Maintenance Terms 31 10B. Other Terms 32 10C. Accounting Principles, Terms and Determinations 40 11. MISCELLANEOUS 40 11A. Note Payments 40 11B. Expenses 41 11C. Consent to Amendments 41 11D. Form, Registration, Transfer and Exchange of Notes; Lost Notes 42 11E. Persons Deemed Owners; Participations 42 11F. Survival of Representations and Warranties; Entire Agreement 42 11G. Successors and Assigns 43 11H. Notices 43 11I. Descriptive Headings 43 11J. Satisfaction Requirement 43 11K. Payments Due on Non-Business Days 43 11L. Limited Liability of Partners 44 11M. Independence of Covenants 44 11N. Severability 44 11O. Governing Law, Jurisdiction; Consent to Service of Process 44 11P. Counterparts 45 11Q. Binding Agreement 45 12. JOINT AND SEVERAL OBLIGATIONS 45 12.1. Nature of Obligations 45 12.2. Failure of any Co-Issuer to Perform 45 12.3. Additional Undertaking 45 12.4. Joint and Several Obligations Unconditional, etc. 46 12.5. Co-Issuer's Obligations to Remain in Effect; Restoration 46 12.6. Waiver of Acceptance, etc. 47 12.7. Subrogation 47 12.8. Effect of Stay 47 INFORMATION SCHEDULE EXHIBIT A-1 -- FORM OF SERIES B NOTE EXHIBIT A-2 -- FORM OF SERIES C NOTE EXHIBIT A-3 -- FORM OF PRIVATE SHELF NOTE EXHIBIT B -- FORM OF REQUEST FOR PURCHASE EXHIBIT C -- FORM OF CONFIRMATION OF ACCEPTANCE EXHIBIT D-1 -- FORM OF OPINION OF COMPANY'S SPECIAL COUNSEL (RESTATEMENT) EXHIBIT D-2 -- FORM OF OPINION OF COMPANY'S SPECIAL COUNSEL (SHELF NOTES) SCHEDULE 8A(1) -- LIST OF GUARANTORS SCHEDULE 8G -- LIST OF AGREEMENTS LIMITING DEBT CEDAR FAIR,
L.P. As of April 7, 2004 Prudential Investment Management, Inc. (" Prudential ") Each holder of Series B Notes and Series C Notes Each Prudential Affiliate (as hereinafter
Ladies and Gentlemen: The undersigned, Cedar Fair, L.P., a Delaware limited partnership (herein called the " Company "), and Knott's Berry Farm, a California general partnership ("Knott's Berry Farm "; the Company and Knott's Berry Farm are sometimes hereinafter collectively referred to as the " Co-Issuers " and individually referred to as a " Co-Issuer "), hereby jointly and severally agree with you as set forth below. Reference is made to paragraph 10 hereof for definitions of capitalized terms used herein and not otherwise defined herein. INTRODUCTION The Co-Issuers and the Existing Holders are parties to that certain Note Purchase and Private Shelf Agreement, dated as of January 28, 1998 (as heretofore amended, the "Existing Note Agreement" ), under which Co-Issuers have issued their 6.68% Series B Notes due August 24, 2011 (collectively, including any Series B Note delivered in substitution or exchange for any other Series B Note pursuant to any provision of the Existing Note Agreement or this Agreement, referred to as the "Series B Notes" and individually as a "Series B Note" ) in the original aggregate principal amount of $50,000,000 and their 6.40% Series C Notes due August 24, 2008 (collectively, including any Series C Note delivered in substitution or exchange for any other Series C Note pursuant to any provision of the Existing Note Agreement or this Agreement, referred to as the "Series C Notes" and individually as a "Series C Note" ) in the original aggregate principal amount of $50,000,000. The Co-Issuers have advised Prudential and the Existing Holders that they wish to amend and restate the Existing Note Agreement as set forth herein and Prudential and the Existing Holders are willing to agree to such amendment and restatement subject to the terms and conditions hereof. Accordingly, Prudential, the Existing Holders and the Co-Issuers agree as follows: 1. AMENDMENT AND RESTATEMENT; AUTHORIZATION OF ISSUE OF NOTES. 1A. Amendment and Restatement of Existing Note Agreement. Subject to the terms and conditions herein set forth, the Co-Issuers, Prudential and the Existing Holders agree that, effective on the Restatement Date, the Existing Note Agreement will be amended and restated in its entirety to read as set forth in this Agreement and the Series B Notes and the Series C Notes will be outstanding under this Agreement. 1B. Authorization of Issue of Shelf Notes . The Co-Issuers shall authorize the issue of additional senior promissory notes of the Co-Issuers (the " Shelf Notes ") in the aggregate principal amount of $75,000,000, to be a joint and several obligation of the Co-Issuers, to be dated the date of issue thereof, to mature, in the case of each Shelf Note so issued, no more than 12 years after the date of original issuance thereof, to have an average life, in the case of each Shelf Note so issued, of no more than 10 years after the date of original issuance thereof, to bear interest on the unpaid balance thereof from the date thereof at the rate per annum, and to have such other particular terms, as shall be set forth, in the case of each Shelf Note so issued, in the Confirmation of Acceptance with respect to such Shelf Note delivered pursuant to paragraph 2B(5), and to be substantially in the form of Exhibit A-3 attached hereto. The terms " Shelf Note " and " Shelf Notes " as used herein shall include each Shelf Note delivered pursuant to any provision of this Agreement and each Shelf Note delivered in substitution or exchange for any such Shelf Note pursuant to any such provision. The terms " Note " and " Notes " as used herein shall include each Series B Note, each Series C Note and each Shelf 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, (v) the same interest payment periods and (vi) the same date of issuance (which, in the case of a Note issued in exchange for another Note, shall be deemed for these purposes the date on which such Note's ultimate predecessor Note was issued), are herein called a " Series " of Notes. 2. PURCHASE AND SALE OF SHELF NOTES . 2A. [Intentionally Omitted] . 2B. Purchase and Sale of Shelf Notes . 2B(1). Facility . Prudential is willing to consider, in its sole discretion and within limits which may be authorized for purchase by Prudential Affiliates from time to time, the purchase of Shelf Notes pursuant to this Agreement. In the event Prudential and the Company agree such additional Notes may be issued by the Company as the sole obligor thereunder. The willingness of Prudential to consider such purchase of Shelf Notes is herein called the " Facility . " At any time, the aggregate principal amount of Shelf Notes stated in paragraph 1B, minus the aggregate principal amount of Shelf 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 SHELF NOTES BY PRUDENTIAL AFFILIATES, 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 SHELF NOTES, OR TO QUOTE RATES, SPREADS OR OTHER TERMS WITH RESPECT TO SPECIFIC PURCHASES OF SHELF NOTES, AND THE FACILITY SHALL IN NO WAY BE CONSTRUED AS A COMMITMENT BY PRUDENTIAL OR ANY PRUDENTIAL AFFILIATE. 2B(2). Issuance Period. Shelf Notes may be issued and sold pursuant to this Agreement until the earlier of (i) the third anniversary of the date of this Agreement (or if the date of such anniversary is not a Business Day, the Business Day next preceding such anniversary), (ii) the 30 th day after Prudential shall have given to the Co-Issuers, or the Co-Issuers shall have given to Prudential, a written notice stating that it elects to terminate the issuance and sale of Shelf Notes pursuant to this Agreement (or if such 30 th day is not a Business Day, the Business Day next preceding such 30 th day), (iii) the last Closing Day after which there is no Available Facility Amount, (iv) the termination of the Facility under paragraph 7A of this Agreement, and (v) the acceleration of any Note under paragraph 7A of this Agreement. The period during which Shelf Notes may be issued and sold pursuant to this Agreement is herein called the " Issuance Period" . 2B(3). Request for Purchase. The Co-Issuers (or, if Prudential so agrees, the Company) may from time to time during the Issuance Period make requests for purchases of Shelf Notes (each such request being herein called a " Request for Purchase" ). Each Request for Purchase shall be made to Prudential by telecopier or overnight delivery service, and shall (i) specify the aggregate principal amount of Shelf 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 (which shall be no more than 12 years from the date of issuance), average life (which shall be no more than 10 years from the date of issuance), principal prepayment dates (if any) and amounts and interest payment periods (quarterly or semi-annually in arrears) of the Shelf Notes covered thereby, (iii) specify the use of proceeds of such Shelf Notes, (iv) specify the proposed day for the closing of the purchase and sale of such Shelf 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 making of 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 Shelf 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 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 five Business Days after the Co-Issuers (or, if Prudential so agrees, the Company) shall have given Prudential a Request for Purchase pursuant to paragraph 2B(3), Prudential may, but shall be under no obligation to, provide to the Issuer by telephone or telecopier, in each case between 9:30 A.M. and 1:30 P.M. New York City local time (or such later time as Prudential may elect) interest rate quotes for the several principal amounts, maturities, principal prepayment schedules and interest payment periods of Shelf Notes specified in such Request for Purchase. Each quote shall represent the interest rate per annum payable on the outstanding principal balance of such Shelf Notes at which a Prudential Affiliate or Affiliates would be willing to purchase such Shelf Notes at 100% of the principal amount thereof. 2B(5). Acceptance. Within the Acceptance Window with respect to any interest rate quotes provided pursuant to paragraph 2B(4), the Issuer may, subject to paragraph 2B(6), elect to accept such interest rate quotes as to not less than $10,000,000 aggregate principal amount of the Shelf Notes specified in the related Request for Purchase. Such election shall be made by an Authorized Officer of the Issuer notifying Prudential by telephone or telecopier within the Acceptance Window that the Issuer elects to accept such interest rate quotes, specifying the Shelf Notes (each such Shelf Note being herein called an " Accepted Note" ) as to which such acceptance (herein called an " Acceptance" ) relates. The day the Issuer 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 Shelf 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 Issuer agrees to sell to a Prudential Affiliate or Affiliates, and Prudential agrees to cause the purchase by a Prudential Affiliate or Affiliates of, the Accepted Notes at 100% of the principal amount of such Notes. As soon as practicable following the Acceptance Day, the Issuer 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" ). If the Issuer should fail to execute and return to Prudential within three Business Days following the Issuer's receipt thereof a Confirmation of Acceptance with respect to any Accepted Notes, Prudential or any Prudential Affiliate may at its election at any time prior to Prudential's receipt thereof cancel the closing with respect to such Accepted Notes by so notifying the Issuer in writing. 2B(6). Market Disruption. Notwithstanding the provisions of paragraph 2B(5), if Prudential shall have provided interest rate quotes pursuant to paragraph 2B(4) 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) the domestic market for U.S. Treasury securities or other financial instruments shall have closed or there shall have occurred a general suspension, material limitation, or significant disruption of trading in securities generally on the New York Stock Exchange or in the domestic market for U.S. Treasury securities or other financial instruments, then such interest rate quotes shall expire, and no purchase or sale of Shelf Notes hereunder shall be made based on such expired interest rate quotes. If the Issuer 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 Issuer that the provisions of this paragraph 2B(6) are applicable with respect to such Acceptance. 2B(7). Facility Closings. Not later than 11:30 A.M. (New York City local time) on the Closing Day for any Accepted Notes, the Issuer will deliver to each Purchaser listed in the Confirmation of Acceptance relating thereto at the offices of Prudential Capital Group, 180 North Stetson Street, Suite 5600, Chicago, Illinois 60601, Attention: Law Department, the Accepted Notes to be purchased by such Purchaser in the form of one or more Notes in authorized denominations as such Purchaser may request for each Series of Accepted Notes to be purchased on the Closing Day, dated the Closing Day and registered in such Purchaser's name (or in the name of its nominee), against payment of the purchase price thereof by transfer of immediately available funds for credit to the Issuer's account specified in the Request for Purchase of such Notes. If the Issuer 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 Issuer shall, prior to 1:00 P.M., New York City local time, on such scheduled Closing Day notify Prudential (which notification shall be deemed received by each Purchaser) in writing whether (i) 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 Prudential (which certification shall be for the benefit of each Purchaser) that the Issuer 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 Issuer will pay the Delayed Delivery Fee in accordance with paragraph 2B(8)(iii) or (ii) such closing is to be canceled. In the event that the Issuer 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 Issuer in writing that such closing is to be canceled. Notwithstanding anything to the contrary appearing in this Agreement, the Issuer may not elect to reschedule a closing with respect to any given Accepted Notes on more than one occasion, unless Prudential shall have otherwise consented in writing. 2B(8). Fees. 2B(8)(i). [Intentionally Omitted]. 2B(8)(ii). [Intentionally Omitted]. 2B(8)(iii). 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 Issuer will pay to the Purchaser which shall have agreed to purchase such Accepted Note (a) on the Cancellation Date or actual closing date of such purchase and sale and (b) if earlier, the next Business Day following 90 days after the Acceptance Day for such Accepted Note and on each Business Day following 90 days after the prior payment hereunder, a fee (herein called the " Delayed Delivery Fee" ) calculated as follows: (BEY - MMY) X DTS/360 X PA 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 and having a maturity date or dates the same as, or closest to, the Rescheduled Closing Day or Rescheduled Closing Days for such Accepted Note (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 original Closing Day for 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)(iv). Cancellation Fee. If the Issuer at any time notifies Prudential in writing that the Issuer is canceling the closing of the purchase and sale of any Accepted Note, or if Prudential notifies the Issuer in writing under the circumstances set forth in the last sentence of paragraph 2B(5) or the penultimate sentence of paragraph 2B(7) that the closing of the purchase and sale of such Accepted Note is to be canceled, or if the closing of the purchase and sale of such Accepted Note is not consummated on or prior to the last day of the Issuance Period (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 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 Issuer will pay to the Purchaser which shall have agreed to purchase such Accepted Note 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 Notes(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)(iii). The foregoing bid and ask prices shall be as reported by TradeWeb LLC (or, if such data for any reason ceases to be available through TradeWeb LLC, any publicly available source of similar market data). Each price shall be rounded to the second decimal place. In no case shall the Cancellation Fee be less than zero. 3. CONDITIONS OF RESTATEMENT; CONDITIONS OF CLOSING. 3A. Conditions of Restatement. The amendment and restatement of the Existing Note Agreement pursuant to this Agreement shall become effective on the date (the " Restatement Date ") upon which the following conditions have been satisfied: 3A(1). Certain Documents. Each Existing Holder shall have received original counterparts or, if satisfactory to such Existing Holder, certified or other copies of all of the following, each duly executed and delivered by the party or parties thereto, in form and substance satisfactory to such Purchaser dated the Restatement Date unless otherwise indicated, and, on the Restatement Date, in full force and effect with no event having occurred and being then continuing that would constitute a default thereunder or constitute or provide the basis for the termination thereof: (i) a Secretary's Certificate signed by the Secretary or Assistant Secretary and one other officer of each of the General Partner or the general partner of Knott's Berry Farm, as the case may be, certifying, among other things (a) as to the name, titles and true signatures of the officers of General Partner or the general partner of Knott's Berry Farm, as the case may be, authorized to sign on behalf of each Co-Issuer this Agreement, the Shelf Notes being delivered on such Closing Day and the other documents to be delivered in connection with this Agreement, (b) that attached thereto is a true, accurate and complete copy of the Certificate of Formation of such General Partner or the general partner of Knott's Berry Farm, as the case may be, certified by the Secretary of State of the state its formation as of a recent date, (c) that attached thereto is a true, accurate and complete copy of the By-laws, operating agreement or other organization document of such General Partner or the general partner of Knott's Berry Farm, as the case may be, in effect as of such Closing Day and as has been in effect immediately prior to and at all times since the adoption of the resolutions referred to in clause (d) below, (d) that attached thereto is a true, accurate and complete copy of the resolutions of the Board of Directors or other managing body of such General Partner or the general partner of Knott's Berry Farm, as the case may be, or other managing body, duly adopted at a meeting or by unanimous written consent of such Board of Directors or other managing body, authorizing the execution, delivery and performance on behalf of each of the Co-Issuers of this Agreement, the Shelf Notes being delivered on such Closing Day and the other documents to be delivered in connection with this Agreement, and that such resolutions have not been amended, modified, revoked or rescinded, and are in full force and effect and are the only resolutions of the partners of the Issuer or of such Board of Directors or any committee thereof relating to the subject matter thereof, (e) that this Agreement, the Shelf Notes being delivered on such Closing Day and the other documents executed and delivered on behalf of each of the Co-Issuers to such Purchaser are in the form approved by its Board of Directors in the resolutions referred to in clause (d), above, and (f) that no dissolution or liquidation proceedings as to such General Partner or the general partner of Knott's Berry Farm, as the case may be, have been commenced or are contemplated; (ii) a certificate of good standing for the Company and each of the Subsidiaries from the Secretary of State of the state of formation of the Company and each such Subsidiary and of each state in which the Company or any such Subsidiary is required to be qualified to transact business as a foreign partnership or corporation, in each case dated as of a recent date; (iii) a confirmation of Guaranty Agreement in form and substance satisfactory to Prudential and the Existing Holders executed by each Guarantor party to a Guaranty Agreement immediately prior to the Restatement Date and a Guaranty Agreement, substantially in the form of the Guaranty Agreements in effect immediately prior to the Restatement Date, executed by each Guarantor, if any, not a party to a Guaranty Agreement immediately prior to the Restatement Date, together with the documents relating thereto described in paragraph 5J hereof; (iv) a certificate of good standing for each of the General Partner or the general partner of Knott's Berry Farm, as the case may be, from the Secretary of State of the state of its formation and of each state in which such General Partner or the general partner of Knott's Berry Farm, as the case may be, is required to be qualified to transact business as a foreign corporation, in each case dated as of a recent date; and (v) such other certificates, documents and agreements as such Existing Holder may reasonably request. 3A(2). Opinion of Company's Counsel. Prudential and each Existing Holder shall have received from Squire, Sanders & Dempsey L.L.P., special counsel to the Co-Issuers, a favorable opinion satisfactory to Prudential and each Existing Holder, dated such Restatement Date, and substantially in the form of Exhibit D-1 attached hereto and as to such other matters as Prudential or Existing Holder may reasonably request. The Co-Issuers, by their execution hereof, hereby request and authorize such special counsel to render such opinions, agree that the issuance and sale of any Notes will constitute a reconfirmation of such request and authorization, and understand and agree that Prudential and each Existing Holder receiving such an opinion will and is hereby authorized to rely on such opinion. 3A(3). Representations and Warranties; No Default; Satisfaction of Conditions. The representations and warranties contained in paragraph 8 shall be true on and as of the Restatement Date, both before and immediately after giving effect to the consummation of the transactions contemplated hereby; there shall exist on the Restatement Date no Event of Default or Default, both before and immediately after giving effect to the consummation of the transactions contemplated hereby; the Co-Issuers shall have performed all agreements and satisfied all conditions required under this Agreement to be performed or satisfied on or before the Restatement Date; and such Co-Issuer shall have delivered to Prudential and each Existing Holder an Officer's Certificate, dated as of the Restatement Date, to each such effect. 3A(4). Material Adverse Change. No material adverse change in the business, condition (financial or otherwise), operations or prospects of the Company and its Subsidiaries, taken as a whole, since December 31, 2003 shall have occurred or be threatened, as determined by such Purchaser in its sole judgment. 3A(5). Fees and Expenses. Without limiting the provisions of paragraph 11B hereof, the Company shall have paid the reasonable fees, charges and disbursements of any special counsel to the Purchasers. 3A(6). 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 such Purchaser, and such Purchaser shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request. 3B(1). Certain Documents. Such Purchaser shall have received original counterparts or, if satisfactory to such Purchaser, certified or other copies of all of the following, each duly executed and delivered by the party or parties thereto, in form and substance satisfactory to such Purchaser dated the date of the applicable Closing Day unless otherwise indicated, and, on the applicable Closing Day, in full force and effect with no event having occurred and being then continuing that would constitute a default thereunder or constitute or provide the basis for the termination thereof: (i) The Shelf Note(s) to be purchased by such Purchaser on such Closing Day in the form of Exhibit A-3 hereto, as applicable; (ii) a Secretary's Certificate signed by the Secretary or Assistant Secretary and one other officer of each of the General Partner or the general partner of Knott's Berry Farm, as the case may be, certifying, among other things (a) as to the name, titles and true signatures of the officers of such General Partner or the general partner of Knott's Berry Farm, as the case may be, authorized to sign on behalf of each Co-Issuer this Agreement, the Shelf Notes being delivered on such Closing Day and the other documents to be delivered in connection with this Agreement, (b) that attached thereto is a true, accurate and complete copy of the Certificate of Formation of such General Partner or the general partner of Knott's Berry Farm, as the case may be, certified by the Secretary of State of the state its formation as of a recent date, (c) that attached thereto is a true, accurate and complete copy of the By-laws, operating agreement or other organization document of such General Partner or the general partner of Knott's Berry Farm, as the case may be, in effect as of such Closing Day and as has been in effect immediately prior to and at all times since the adoption of the resolutions referred to in clause (d) below, (d) that attached thereto is a true, accurate and complete copy of the resolutions of the Board of Directors or other managing body of such General Partner or the general partner of Knott's Berry Farm, as the case may be, or other managing body, duly adopted at a meeting or by unanimous written consent of such Board of Directors or other managing body, authorizing the execution, delivery and performance on behalf of each of the Co-Issuers of this Agreement, the Shelf Notes being delivered on such Closing Day and the other documents to be delivered in connection with this Agreement, and that such resolutions have not been amended, modified, revoked or rescinded, and are in full force and effect and are the only resolutions of the partners of the Issuer or of such Board of Directors or any committee thereof relating to the subject matter thereof, (e) that this Agreement, the Shelf Notes being delivered on such Closing Day and the other documents executed and delivered on behalf of each of the Co-Issuers to such Purchaser are in the form approved by its Board of Directors in the resolutions referred to in clause (d), above, and (f) that no dissolution or liquidation proceedings as to such General Partner or the general partner of Knott's Berry Farm, as the case may be, have been commenced or are contemplated; (iii) a certificate of good standing for the Issuer (if applicable) and each of its Subsidiaries from the Secretary of State of the state of formation and of each state in which the Issuer or any such Subsidiary is required to be qualified to transact business as a foreign corporation or partnership, in each case dated as of a recent date; (iv) a confirmation of Guaranty Agreement in form and substance satisfactory to such Purchaser executed by each Guarantor party to a Guaranty Agreement immediately prior to such Closing Day and a Guaranty Agreement, substantially in the form of the Guaranty Agreements in effect immediately prior to such Closing Day, executed by each Guarantor, if any, not a party to a Guaranty Agreement immediately prior to such Closing Day, together with the documents relating thereto described in paragraph 5J hereof; (v) a certificate of good standing for each of the General Partner or the general partner of Knott's Berry Farm, as the case may be, from the Secretary of State of the state of its formation and of each state in which such General Partner or is required to be qualified to transact business as a foreign corporation, in each case dated as of a recent date; and (vi) such other certificates, documents and agreements as such Purchaser may reasonably request. 3B(2). Opinion of Purchaser's Special Counsel. Such Purchaser shall have received from Wiley S. Adams, Vice President and Corporate Counsel of Prudential or such other counsel who is acting as special 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. 3B(3). Opinion of Company's Counsel. Such Purchaser shall have received from Squire Sanders & Dempsey L.L.P, special counsel to the Issuer (or such other counsel designated by the Issuer and acceptable to such Purchaser), a favorable opinion satisfactory to such Purchaser, dated such Closing Day, and substantially in the form of Exhibit D-2 attached hereto and as to such other matters as such Purchaser may reasonably request. The Co-Issuers, by their execution hereof, hereby request and authorize such special counsel to render such opinions, agree that the issuance and sale of any Shelf Notes will constitute a reconfirmation of such request and authorization, and understand and agree that each Purchaser receiving such an opinion will and is hereby authorized to rely on such opinion. 3B(4). Representations and Warranties; No Default; Satisfaction of Conditions. The representations and warranties contained in paragraph 8 shall be true on and as of such Closing Day, both before and immediately after giving effect to the issuance of the Shelf Notes to be issued on such Closing Day and to the consummation of any other transactions contemplated hereby; there shall exist on such Closing Day no Event of Default or Default, both before and immediately after giving effect to the issuance of the Shelf Notes to be issued on such Closing Day and to the consummation of any other transactions contemplated hereby; the Issuer shall have performed all agreements and satisfied all conditions required under this Agreement to be performed or satisfied on or before such Closing Day; and the Issuer shall have delivered to such Purchaser an Officer's Certificate, dated such Closing Day, to each such effect. 3B(5). Purchase Permitted by Applicable Laws. The purchase of and payment for the Shelf Notes to be purchased by such Purchaser on such Closing Day on the terms and conditions herein provided (including the use of the proceeds of such Shelf Notes by the Company) shall not violate any applicable law or governmental regulation (including, without limitation, Section 5 of the Securities Act or Regulation T, U or X of the Board of Governors of the Federal Reserve System) and shall not subject such 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 it may request to establish compliance with this condition. All necessary authorizations, consents, approvals, exceptions or other actions by or notices to or filings with any court or administrative or governmental body or other Person required in connection with the execution, delivery and performance of this Agreement and the Shelf Notes to be issued on such Closing Day or the consummation of the transactions contemplated hereby or thereby shall have been issued or made, shall be final and in full force and effect and shall be in form and substance satisfactory to such Purchaser. 3B(6). Payment of Fees. The Issuer shall have paid to such Purchaser (directly in immediately available funds) any fees due it pursuant to or in connection with this Agreement, including any Delayed Delivery Fee due pursuant to paragraph 2B(8)(iii). 3B(7). Material Adverse Change. No material adverse change in the business, condition (financial or otherwise), operations or prospects of the Company and its Subsidiaries, taken as a whole, since the date of the most recent audited financial statements delivered pursuant to paragraph 5A(ii) hereof, shall have occurred or be threatened, as determined by such Purchaser in its sole judgment. 3B(8). 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 such Purchaser, and such Purchaser shall have received all such counterpart originals or certified or other copies of such documents as it may reasonably request. 4. PREPAYMENTS . The Series B Notes, the Series C Notes and any Shelf Notes shall be subject to required prepayment as and to the extent provided in paragraphs 4A and 4B, respectively. The Series B Notes, the Series C Notes and any Shelf Notes shall also be subject to prepayment under the circumstances set forth in paragraph 4C. Any prepayment made by the Issuer pursuant to any other provision of this paragraph 4 shall not reduce or otherwise affect its obligation to make any required prepayment as specified in paragraph 4A or 4B. 4A(1). Required Prepayments of Series B Notes . Until the Series B Notes shall be paid in full, the Co-Issuers jointly and severally agree to apply to the prepayment of the Series B Notes, without Yield-Maintenance Amount, the sum of $10,000,000 on August 24 of each year commencing on August 24, 2007 and continuing through and including August 24, 2010 and such principal amounts of the Series B Notes, together with interest thereon to the payment dates, shall become due on such payment dates. The remaining unpaid principal amount of the Series B Notes together with any accrued and unpaid interest, shall become due on the maturity date of the Series B Notes on August 24, 2011. 4A(2). Required Prepayments of Series C Notes . The Series C Notes shall be subject to required prepayments set forth in the form of the Series C Notes. 4A(3). Required Prepayments of Shelf Notes. Each Series of Shelf Notes shall be subject to required prepayments, if any, set forth in the Notes of such Series. 4B(1). 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. 4B(2). Prepayment with Yield-Maintenance Amount Pursuant to Intercreditor Agreement . If amounts are to be applied to the principal of the Notes pursuant to the terms of the Intercreditor Agreement, interest owing thereon to the prepayment date and the Yield-Maintenance Amount, if any, with respect to each Note shall be due and payable on such date. Any partial prepayment on the Notes pursuant to this paragraph 4B(2) shall be applied in satisfaction of required payments of principal in inverse order of their scheduled due dates. 4C. Notice of Optional Prepayment . The Issuer 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(1) 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(1). 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 Issuer shall, on or before the day on which it gives written notice of any prepayment pursuant to paragraph 4B(1), 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 Issuer. 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 Issuer 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 Issuer 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 Issuer 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 Issuer 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); (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. 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), 6A(3)(viii), 6A(5), 6C and 6D 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. Immediately after a Responsible Officer becomes aware of or the Company receives notice of any Event of Default under the Credit Agreement, the 2002 Note Purchase Agreement or the 2003 Note Purchase Agreement, the Company will give each holder of any Note notice thereof. 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 General Partner or the general partner of Knott's Berry Farm, as the case may be, and the directors, officers and independent accountants of the Co-Issuers, all at such reasonable times and as often as such Significant Holder may reasonably request. 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. 5G. [Intentionally Omitted] . 5H. Most Favored Covenant Status, etc. Should the Company or its Subsidiaries at any time after the date hereof, 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 designated event) which are applicable to the Company or any Significant Subsidiary, other than those set forth herein, the Company shall promptly so notify the holders of the Notes and, if the Required Holder(s) shall so request by written notice to the Company (after a determination has been made by the Required Holder(s) 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-Issuers and the Required Holder(s) shall promptly amend this Agreement to incorporate some or all of such provisions, in the discretion of the Required Holder(s), into this Agreement and, to the extent necessary and reasonably desirable to the Required Holder(s), all at the election of the Required Holder(s). 5I. Senior Debt . The Co-Issuers will at all times ensure that (a) the claims of the holders of the Notes under this Agreement and the Notes 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-Issuer and (b) any Indebtedness subordinated in any manner to the claims of any other senior unsecured creditor of either Co-Issuer will be subordinated in like manner to such claims of the holders of the Notes. 5J. Guaranty by Subsidiaries. The Company will cause each Subsidiary which becomes obligated, directly or indirectly (including as a "Co-Borrower," "Obligor" or "Subsidiary Guarantor") under the Credit Agreement, the 2002 Note Purchase Agreement or the 2003 Note Purchase Agreement, to concurrently enter into a Guaranty Agreement for the benefit of the holders of the Notes, substantially in the form of the Guaranty Agreement as in effect on the Restatement Date, and within three Business Days thereafter shall deliver to each of the holders of the Notes the following items: (a) an executed counterpart of such Guaranty Agreement; (b) a certificate signed by the President, a Vice President or another authorized Responsible Officer of such Subsidiary making representations and warranties to the effect of those contained in paragraphs 8A(1) and 8B, but with respect to such Subsidiary and such Guaranty Agreement, as applicable; (c) such documents and evidence with respect to such Subsidiary as any holder of the Notes may reasonably request in order to establish the existence and good standing of such Subsidiary and the authorization of the transactions contemplated by such Guaranty Agreement; (d) any amendment or modification to the Intercreditor Agreement requested by the Required Holders relating to the inclusion of such new Guaranty Agreement thereunder; and (e) an opinion of counsel satisfactory to the Required Holders to the effect that such Guaranty Agreement has been duly authorized, executed and delivered and constitutes the legal, valid and binding contract and agreement of such Subsidiary enforceable in accordance with its terms, except as enforcement of such terms may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors' rights generally and by general equitable principles. 5K. Amendment of 1994 Private Shelf Agreement and Knott's Berry Farm Guaranty of 8.43% Notes. On or before the 30th day after the Restatement Date (i) the Company shall execute and deliver to the holders of the Company's 8.43% Series A Notes due August 24, 2006 an amendment, in form and substance reasonably satisfactory to the holders of such 8.43% Series A Notes, of that certain Private Shelf Agreement, dated as of August 24, 1994, as amended (the "1994 Private Shelf Agreement" ), which amendment shall cause the 1994 Private Shelf Agreement to conform the covenants, events of default and related definitions therein to the covenants, Events of Default and related definitions set forth in this Agreement and (ii) Knott's Berry Farm shall execute and deliver to the holders of the Company's 8.43% Series A Notes due August 24, 2006 a Guarantee of the Company's obligations under such 8.43% Series A Notes and the Private Shelf Agreement, under which such 8.43% Series A Notes were issued, which Guarantee will be in form and substance reasonably satisfactory to the holders of such 8.43% Series A Notes. 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 (and Knott's Berry Farm covenants that it will not take any action that will cause non-compliance with any of the following): 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 General Partner) 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 (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) |
AGREEMENTS / CONTRACTS
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