Exhibit 1.(e)
L&W Draft--3/19/98
PREMIER PARKS INC.
$___________ Aggregate Principal Amount at Maturity of
__% Senior Discount Notes due 2008
$280,000,000 _% Senior Notes due 2006
UNDERWRITING AGREEMENT
, 1998
Xxxxxx Brothers Inc.
Salomon Brothers Inc
NationsBanc Xxxxxxxxxx Securities LLC
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Premier Parks Inc., a Delaware corporation (the "Company"), proposes to
sell to the several Underwriters (the "Offering") named on Schedule 1 hereto
(the "Underwriters") $___________ aggregate principal amount at maturity of __%
Senior Discount Notes due 2008 of the Company (the "Company Senior Discount
Notes") and $280,000,000 __% Senior Notes due 2006 of the Company (the "Company
Senior Notes" and, together with the Company Senior Discount Notes, the
"Notes"). The Notes are to be issued under two separate indentures, to be
entered into and to be dated as of _______, 1998 (the "Indentures") between the
Company and The Bank of New York, as Trustee. In addition, the Company will
enter into a pledge, escrow and disbursement agreement (the "Discount Note
Escrow Agreement") which will secure certain of the Company's obligations under
the Company Senior Discount Notes and a pledge, escrow and disbursement
agreement (the "Senior Note Escrow Agreement" and together with the Discount
Note Escrow Agreement, the "Escrow Agreements") which will secure certain of the
Company's obligations under the Company Senior Notes.
It is also understood by all parties that the Company is undertaking the
Offering in connection with its acquisition (the "Six Flags Acquisition") from
the current stockholders (the "Sellers") of all of the capital stock of
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Six Flags Entertainment Corporation ("SFEC"), and that, in connection with the
Six Flags Acquisition, the Company is concurrently offering (the "Common Stock
Offering"), with the over-allotment option, _______ shares of its Common Stock
(the "Stock") and, with the over-allotment option, 5,750,000 Premium Income
Equity Securities ("PInES") representing interests in the Company's mandatorily
convertible preferred stock (the "Mandatorily Convertible Preferred Stock") with
estimated gross proceeds of $228.2 million. In addition, it is understood by all
parties that Six Flags Theme Parks Inc. ("SFTP") is concurrently entering into a
new $472 million senior secured credit facility (the "Six Flags Credit
Facility") under a credit agreement dated the date of this Agreement among it,
certain of the Six Flags Subsidiaries (as defined in Section 15) and Xxxxxx
Commercial Paper, Inc., and Premier Operations Inc. ("Premier Operations") has
entered into a $300 million senior secured credit facility (the "Premier Credit
Facility" and, together with the Six Flags Credit Facility, the "Credit
Facilities") under a credit agreement among the Company, certain of the Premier
Subsidiaries and Premier Partnerships (each as defined in Section 15) and Xxxxxx
Commercial Paper, Inc. It is further understood by all parties that, immediately
following the Offering, SFEC will offer $170 million aggregate principal amount
of senior notes due 2006 (the "New SFEC Notes"), and that, concurrently with the
Offering, the Company may issue depositary shares (the "Seller Depositary
Shares") representing interests in up to $200 million of the Company's
convertible redeemable preferred stock (the "Seller Convertible Redeemable
Preferred Stock") to the Sellers as part of the consideration for the Six Flags
Acquisition.
1. Representations, Warranties and Agreements of the Company and
Certain of the Subsidiaries. The Company and Premier Operations and, as of the
First Delivery Date (as hereinafter defined), SFEC and SFTP represent, warrant
and agree, jointly and severally, that:
(a) A registration statement on Form S-3 (file number 333-46167),
and amendments thereto, with respect to the Notes has (i) been prepared by
the Company in conformity in all material respects with the requirements
of the United States Securities Act of 1933 (the "Securities Act") and the
rules and regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii)
been filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration statement
and amendments thereto have been delivered by the Company to you as the
representatives (the "Representatives") of the Underwriters. Upon your
written request, but not without your agreement, the Company will also
file a Rule 462(b) Registration Statement in accordance with Rule 462(b).
As used in
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this Agreement, "Effective Time" means the date and the time as of which
such registration statement, the most recent post-effective amendment
thereto, if any, or any Rule 462(b) Registration Statement became or
becomes effective; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it became effective
under the Securities Act and any prospectus relating to the Notes filed
with the Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "Registration
Statement" means such registration statement, as amended at the Effective
Time, including any documents incorporated by reference therein at such
time and all information contained in the final prospectus relating to the
Notes filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 5(a) hereof and deemed to be a part
of the registration statement as of the Effective Time pursuant to
paragraph (b) of Rule 430A of the Rules and Regulations and, in the event
any Rule 462(b) Registration Statement becomes effective prior to the
First Delivery Date, also means such registration statement as so amended,
unless the context otherwise requires; "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to paragraph (1)
or (4) of Rule 424(b) of the Rules and Regulations; and "Rule 462(b)
Registration Statement" means the registration statement and any
amendments thereto filed pursuant to Rule 462(b) of the Rules and
Regulations relating to the offering covered by the initial Registration
Statement (file number 333-46167). Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. The
Commission has not issued any order preventing or suspending the use of
any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus, any
further amendments or supplements to the Registration Statement or the
Prospectus and any Rule 462(b) Registration Statement will, when they
become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the
applicable Effective Time (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a
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material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of any Underwriter specifically for
inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) The Company, each of the Premier Subsidiaries and, as of the
First Delivery Date, each of the Six Flags Subsidiaries have been or will
be, as applicable, duly incorporated and are or will be, as applicable,
validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation; each of the Premier
Partnerships and, as of the First Delivery Date, each of the Six Flags
Partnerships (as defined in Section 15) is or will be, as applicable,
validly existing as a limited partnership in good standing under the laws
of their respective jurisdictions of formation; the Company, each of the
Premier Subsidiaries and each of the Premier Partnerships and, as of the
First Delivery Date, each of the Six Flags Subsidiaries and each of the
Six Flags Partnerships are or will be, as applicable, duly qualified to do
business and are or will be, as applicable, in good standing as foreign
entities in each jurisdiction in which their respective ownership or lease
of property or the conduct of their respective businesses requires or will
require, as applicable, such qualification, except where the failure to so
qualify would not have in the aggregate a material adverse effect on the
consolidated financial position, stockholders' equity (or partners'
equity, as applicable), results of operations, business or prospects of
the Company and the Subsidiaries taken as a whole (a "Material Adverse
Effect") and have or will have, as applicable, all corporate or
partnership power and authority, as the case may be, necessary to own or
hold their respective properties and to conduct the businesses in which
they are or will be, as applicable, engaged; none of the subsidiaries (as
defined in Rule 405 of the Rules and Regulations) of the Company
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(other than the Subsidiaries) is a "significant subsidiary", as such term
is defined in Rule 405 of the Rules and Regulations; and the assets,
liabilities and operations of such other subsidiaries are immaterial to
the assets, liabilities, operations and prospects of the Company and the
Subsidiaries taken as a whole.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the description
thereof contained in the Prospectus. All of the issued shares of capital
stock of each Premier Subsidiary (in the case of Walibi, S.A. ("Walibi"),
a Belgian corporation, to our knowledge) have been, and all of the issued
shares of capital stock of each Six Flags Subsidiary, as of the First
Delivery Date, will be, duly and validly authorized and issued and are or
will be, as applicable, fully paid and non-assessable and, except for the
capital stock of Walibi that is subject to the Walibi Tender Offer (as
defined in Section 1(ai)), are or will be, as applicable, owned directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims except for liens, encumbrances, equities or claims
arising under the Credit Facilities and the subordinated indemnity
agreement among the Company and certain of its affiliates, SFEC and
certain of its affiliates and Time Warner Inc. and certain of its
affiliates dated , 1998 (the "Subordinated Indemnity Agreement"). 100% of
the partnership interest in the Premier Partnerships is held and, as of
the First Delivery Date, 100% of the partnership interest in the Six Flags
Partnerships, except for the 40% general partnership interest in San
Antonio Theme Park, L.P. ("Fiesta Partnership") held by Fiesta Texas Theme
Park, Ltd., the 99% limited partnership interest in Six Flags Over Xxxxxxx
XX, L.P. (the "Georgia Co-Venture Partnership") indirectly held by
investors in Six Flags Fund, Ltd. (L.P.), of which approximately 75% are
not affiliated with the Company, and the 99% limited partnership interest
in Texas Flags, Ltd. (the "Texas Co-Venture Partnership") indirectly held
by investors in Six Flags Fund II, Ltd. (L.P.), of which approximately %
are not affiliated with the Company, will be, as applicable, held directly
or indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims except for liens, encumbrances, equities or claims
under the Credit Facilities and the Co-Venture Parks Agreements (as
defined in Section 15).
(f) The unissued shares of the Stock to be issued and sold by the
Company pursuant to the Common Stock
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Offering have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable.
(g) This Agreement has been duly authorized, executed and delivered
by the Company, each of the Premier Subsidiaries and each of the Premier
Partnerships that is a party hereto, and, as of the First Delivery Date,
will be duly authorized, executed and delivered by each of the Six Flags
Subsidiaries that is a party hereto.
(h) The execution, delivery and performance of this Agreement, the
Indentures and the Escrow Agreements by the Company and each of the
Subsidiaries that are parties hereto or thereto, and the consummation of
the transactions contemplated hereby and thereby, will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Subsidiaries is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws or
other constitutive documents of the Company or any of the Subsidiaries or,
assuming that all consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state and foreign securities laws in connection with the purchase and
distribution of the Notes by the Underwriters are obtained, any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries or any of
their properties or assets except, in each case, breaches, violations or
defaults which, in the aggregate, are not reasonably likely to have a
Material Adverse Effect; and except for the registration of the Notes
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state and foreign securities laws in connection with the
purchase and distribution of the Notes by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required or, with respect to
the Six Flags Subsidiaries will be required, for the execution, delivery
and performance of this Agreement, the Indentures or the Escrow Agreements
by the Company or any of the Subsidiaries
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that are parties hereto or thereto and the consummation of the
transactions contemplated hereby and thereby.
(i) Except as disclosed in the Prospectus and as to those rights
which have been duly and validly waived, there are no contracts,
agreements or understandings between the Company and any person granting
such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to
any other registration statement filed by the Company under the Securities
Act.
(j) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or Regulations D or S of,
the Securities Act, other than (i) 121,671 shares issued pursuant to the
Company's acquisition of all of the membership interests of KKI, LLC on
November 7, 1997, (ii) 228,855 shares issued pursuant to the Company's
acquisition of at least 49% of the outstanding capital stock of Walibi on
March , 1998 (the "Walibi Acquisition"), (iii) an aggregate of 450,000
restricted shares issued to the Company's Chief Executive Officer, Chief
Operating Officer and Chief Financial Officer, (iv) 768 shares issued to
certain directors of the Company and (v) shares issued pursuant to the
Company's employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights or
warrants, which, in each case, are disclosed in the Prospectus.
(k) Neither the Company nor any of the Subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any loss or interference with its business from fire,
explosion, flood, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Prospectus, except losses or interferences which will not, in the
aggregate, have a Material Adverse Effect; and, since such date, there has
not been any change in the capital stock other than in connection with the
Premier Merger (as defined in Section 1(ag)) or long-term debt of the
Company or any of the Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs,
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management, financial position, stockholders' equity (or partners' equity,
as applicable) or results of operations of the Company and its
Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(l) The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles in the United States (or, in
the case of Walibi, generally accepted accounting principles in Belgium)
applied on a consistent basis throughout the periods involved, and, in the
case of Walibi, have been reconciled to accounting principles generally
accepted in the United States to the extent required by the applicable
accounting requirements of the Securities Act and the Rules and
Regulations. The pro forma financial statements included in the Prospectus
have been prepared on a basis consistent with such historical financial
statements, except for the pro forma adjustments specified therein, and
comply in all material respects with Regulation S-X under the Securities
Act, and the pro forma adjustments have been properly applied to
historical amounts in the compilation of such pro forma financial
statements.
(m) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, Ernst & Young LLP, who have certified certain
financial statements of SFEC, Coopers & Xxxxxxx, who have certified
certain financial statements of Walibi and Xxxxxxxxx Xxxxxxxx & Xxxxxxxx,
who have certified certain financial statements of Kentucky Kingdom, Inc.
("Kentucky Kingdom") whose reports appear in the Prospectus or are
incorporated by reference therein and who have each delivered the
respective initial letters referred to in Section 7(h) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(n) The Company and each of the Subsidiaries (in the case of Walibi,
to our knowledge) have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects
except for such liens arising under the Credit Facilities or contemplated
in Section 1(e) hereof as are described in the Prospectus or such as would
not have a Material Adverse Effect; and all real property and buildings
held under lease by
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the Company and the Subsidiaries are held by them under valid, subsisting
and enforceable leases, with such exceptions as would not have a Material
Adverse Effect.
(o) The Company and each of the Subsidiaries (in the case of Walibi,
to our knowledge) carry, or are covered by insurance in such amounts and
covering such risks (including the risk of earthquakes) as the Company has
reasonably concluded, based on its experience, is adequate for the conduct
of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses
in similar industries.
(p) The Company and each of the Subsidiaries (in the case of Walibi,
to our knowledge) own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service mark registrations, copyrights and
licenses necessary for the conduct of their respective businesses as
presently conducted and, with respect to the Amended and Restated License
Agreement among certain affiliates of Warner Bros., SFTP and the Company
dated February 9, 1998 (the "License Agreement"), as contemplated by the
Prospectus, and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any notice
of any claim of conflict with, any such rights of others with such
exceptions as would not have a Material Adverse Effect.
(q) Except as otherwise disclosed in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or any of
the Subsidiaries is a party or of which any property or assets of the
Company or any of the Subsidiaries is the subject which, if determined
adversely to the Company or any of the Subsidiaries, might have a Material
Adverse Effect or are otherwise required to be disclosed in the
Prospectus; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated
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therein by reference as permitted by the Rules and Regulations.
(t) No relationship, direct or indirect, exists between or among the
Company or any Subsidiary on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any Subsidiary on
the other hand, which is required to be described or incorporated by
reference in the Prospectus which is not so described or incorporated by
reference.
(u) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent which
might be reasonably expected to have a Material Adverse Effect.
(v) The Company is and, as of the First Delivery Date, SFEC will be
in compliance in all material respects with all presently and then
applicable provisions of the Employee Retirement Income Security Act of
1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has
occurred or, with respect to SFEC, as of the First Delivery Date will have
occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company or SFEC, as applicable, would have any material
liability; the Company has not incurred and, as of the First Delivery
Date, SFEC will not have incurred and neither the Company expects nor
SFEC, as of the First Delivery Date, will expect to incur material
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the
Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "Code"); and each "pension plan"
for which the Company or SFEC, as applicable, would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred or, with
respect to SFEC, as of the First Delivery Date, will have occurred whether
by action or by failure to act, which might reasonably be expected to
cause the loss of such qualification.
(w) The Company and each of the Subsidiaries (in the case of Walibi,
to our knowledge) are in compliance in all respects with (i) all presently
applicable provisions of the Occupational Safety and Health Act of 1970,
as amended, including all applicable regulations thereunder and (ii) all
presently applicable state and local laws and regulations relating to the
safety of its theme park and water park operations, with such exceptions
as would not have a Material Adverse Effect.
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(x) The Company has filed and, as of the First Delivery Date, SFEC
and its subsidiaries will have filed all federal, and all material state
and local income and franchise tax returns required to be filed through
the date hereof or the First Delivery Date, as applicable, other than
those filings being contested in good faith. The Company has paid and, as
of the First Delivery Date, SFEC will have paid all taxes of which it has
notice or will have notice, as applicable, are due thereon, other than
those being contested in good faith and for which adequate reserves have
been provided or will have been provided, as applicable, or those
currently payable or payable as of the First Delivery Date, as applicable,
without penalty or interest and no tax deficiency has been determined
adversely to the Company or any of the Subsidiaries which has had, nor
does the Company have any knowledge of any tax deficiency which, if
determined adversely to the Company or any of the Subsidiaries, might be
reasonably expected to have, a Material Adverse Effect.
(y) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted any
securities or (ii) declared or paid any dividend on its capital stock, and
neither the Company nor any of its Subsidiaries has (i) incurred any
material liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business or (ii) entered into any material transaction not in the ordinary
course of business other than the Six Flags Acquisition.
(z) The Company and each of its Subsidiaries (in the case of Walibi,
to our knowledge) (i) make and keep accurate books and records and (ii)
maintain internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of their financial statements in conformity with
generally accepted accounting principles in the United States (or, in the
case of Walibi, generally accepted accounting principles in Belgium) and
to maintain accountability for their assets, (C) access to their assets is
permitted only in accordance with management's authorization and (D) the
recorded accountability for their assets is compared with existing assets
at reasonable intervals.
(aa) Neither the Company nor any of the Subsidiaries (in the case of
Walibi, to our knowledge) (i) is in violation of its charter or by-laws
(or its partnership agreement, as applicable), (ii) is in
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default in any material respect, and no event has occurred which, with
notice or lapse of time or both, would constitute such a default, in the
due performance or observance of any term, covenant or condition contained
in any material indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which it is a party or by which
it is bound or to which any of its properties or assets is subject or
(iii) is in violation in any material respect of any material law,
ordinance, governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to
the conduct of its business.
(ab) Neither the Company nor any of the Subsidiaries (in the case of
Walibi, to our knowledge), nor, to its knowledge, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of the Subsidiaries, has used any corporate or partnership
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(ac) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
the Subsidiaries (in the case of Walibi, to our knowledge) (or, to the
knowledge of the Company, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the
Company or the Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of the
Subsidiaries or
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with respect to which the Company or any of the Subsidiaries have
knowledge, except for any such spill, discharge, leak, emission,
injection, escape, dumping or release which would not have or would not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; and the terms "hazardous wastes",
"toxic wastes", "hazardous substances" and "medical wastes" shall have the
meanings specified in any applicable local, state, federal and foreign
laws or regulations with respect to environmental protection.
(ad) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
(ae) At the First Delivery Date, (i) the Six Flags Acquisition shall
be consummated in accordance with the terms of the Agreement and Plan of
Merger dated February 9, 1998 among the Company, Premier Operations,
Premier Parks Merger Corporation, PPStar I, Inc., SFEC and the Sellers
(the "Merger Agreement"), and without any material waiver of any of the
conditions precedent to any of the parties' obligations under the Merger
Agreement, (ii) each of the concurrent offerings by the Company of the
Stock and the PInES shall be consummated, (iii) the offering by SFEC of
the New SFEC Notes shall be consummated immediately following the
Offering, (iv) each of the Credit Facilities shall be in effect and
available for borrowing and (v) no default or event which, with notice or
lapse of time or both, would constitute such a default shall have occurred
and be continuing, or shall result from the transactions contemplated
hereby to occur prior to, concurrently with or immediately following the
consummation of the Offering, under (A) the Merger Agreement, (B) the
Indentures, Premier Operations' 12% Senior Notes due 2003 (the "1995
Premier Notes"), Premier Operations' 9 3/4% Senior Notes due 2007 (the
"1997 Premier Notes"), SFEC's Zero Coupon Notes due 1999 (the "SFEC Zero
Coupon Notes"), SFTP's Senior Subordinated Notes due 2005 (the "SFTP
Senior Subordinated Notes") and the New SFEC Notes, (C) the credit
agreements relating to either of the Credit Facilities or (D) the Stock
Purchase Agreement dated December 15, 1997 between Premier Operations (or
a to be formed Belgian corporation) and Centrag, S.A., Xxxxxx N.V. and
Westkoi N.V. (the "Walibi Agreement").
(af) The statements set forth in the Prospectus under the captions
"Business--Licenses", "Business--Intercompany Services Agreement",
"Business--Tax
14
Sharing Agreement", "Description of Six Flags Agreement", "Description of
Other Indebtedness," "Description of Capital Stock," "Certain United
States Federal Income Tax Considerations" and "Description of Notes",
insofar as they describe the terms of the agreements and securities
referred to therein, are accurate and fairly present the information
required to be shown.
(ag) The merger (the "Premier Merger") of the company formerly known
as Premier Parks Inc. with a wholly owned subsidiary of Premier Parks
Holdings Corporation has been effected, and, in connection therewith, no
stockholder vote was required under applicable Delaware law and the
Premier Merger otherwise complies in all respects with the General
Corporation Law of the State of Delaware.
(ah) No stockholder vote is required under applicable Delaware law
in connection with the Six Flags Acquisition, and the Six Flags
Acquisition otherwise complies in all respects with the General
Corporation Law of the State of Delaware.
(ai) The Company has effected the Walibi Acquisition and has
commenced a tender offer (the "Walibi Tender Offer") for the remainder of
the outstanding capital stock of Walibi as described in the Prospectus.
(aj) On or prior to the First Delivery Date, the License Agreement,
the Subordinated Indemnity Agreement, the Intercompany Services Agreement
and the Tax Sharing Agreement shall have been entered into by the parties
thereto with the provisions described in the Prospectus.
(ak) The Company has full power and authority to enter into the
Indentures; the Indentures have been duly authorized by the Company; and
on the First Delivery Date, the Indentures will have been duly executed
and delivered by the Company and, assuming due authorization, execution
and delivery of the Indentures by the Trustee, the Indentures will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, except that the enforcement
thereof may be subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(al) The Company has full power and authority to offer and sell the
Notes; the Notes have been duly
15
authorized by the Company; and when the Notes are delivered and paid for
pursuant to this Agreement on the First Delivery Date, such Notes will
have been duly executed, authenticated, issued and delivered (assuming due
authentication of the Notes by the Trustee) and, assuming due
authentication of the Notes by the Trustee, such Notes will constitute
valid and legally binding obligations of the Company, entitled to the
benefits of the Indentures and enforceable in accordance with their terms,
except that the enforcement thereof may be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at law).
(am) The Company has full power and authority to enter into the
Escrow Agreements; the Escrow Agreements have been duly authorized by the
Company; and when duly executed and delivered by the Company (assuming due
authorization, execution and delivery by the Trustee), will be valid and
legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except that the enforcement
thereof may be subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(an) The Indentures, the Escrow Agreements and the Notes conform in
all material respects to the descriptions thereof contained in the
Prospectus.
(ao) Neither the Company nor any Subsidiary has taken, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the Offering.
(ap) The Indentures shall have been qualified under and will comply
in all material respects with the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
2. Purchase of the Notes by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the several
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, (i) the Company Senior Notes at a purchase price of
100% of the principal amount thereof and
16
(ii) the Company Senior Discount Notes at a purchase price of __% of the
principal amount at maturity thereof, in each case, plus accrued interest, if
any, from March __, 1998, to the First Delivery Date, the respective principal
amounts of Notes set forth opposite that Underwriter's name in Schedule 1
hereto.
3. Offering of Notes by the Underwriters.
Upon authorization by the Representatives of the release of the
Notes, the several Underwriters propose to offer the Notes for sale upon the
terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Notes. Delivery of and payment
for the Notes shall be made at the office of Cravath, Swaine & Xxxxx, Worldwide
Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City time,
on the fifth full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to as
the "First Delivery Date." On the First Delivery Date, the Company shall deliver
or cause to be delivered several Notes in definitive form, registered in the
name of Cede & Co., nominee of The Depository Trust Company ("DTC"), or such
other names as the Underwriters may request upon at least two business days'
notice to the Company (collectively, the "Global Notes") to the Representatives
against payment by the Company of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence (except that the
Company will not be responsible for any delay resulting from any action or
inaction of any Underwriter) and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligations of each
Underwriter hereunder. For the purpose of expediting the checking and packaging
of the Global Notes, the Company shall make the certificates representing the
Global Notes available for inspection by the Representatives in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior to
the First Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under
the Securities Act not later than Commission's close of business on the
second business day following the execution and delivery of this Agreement
or, if applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Securities Act; to make no further amendment or any supplement
to the Registration Statement or to the Prospectus and to
17
file no Rule 462(b) Registration Statement except as permitted herein; to
advise the Representatives, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been filed
or becomes effective or any supplement to the Prospectus or any amended
Prospectus has been filed and to furnish the Representatives with copies
thereof; upon your request, to cause the Rule 462(b) Registration
Statement, properly completed, to be filed with the Commission pursuant to
Rule 462(b) and to provide evidence satisfactory to the Representatives of
such filing; to advise the Representatives, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary Prospectus
or the Prospectus, of the suspension of the qualification of the Notes for
offering or sale in any jurisdiction, of the initiation or threatening of
any proceeding for any such purpose, or of any request by the Commission
for the amending or supplementing of the Registration Statement or the
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or suspending any such
qualification, to use promptly its reasonable best efforts to obtain its
withdrawal;
(b) To furnish reasonably promptly to each of the Representatives
and to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, each amendment thereto
and any Rule 462(b) Registration Statement filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission, each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus and (iii) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Notes or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to
18
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if
for any other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Representatives and, upon their request,
to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the
Representatives, be required by the Securities Act or requested by the
Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus, any Prospectus pursuant to
Rule 424 of the Rules and Regulations or any Rule 462(b) Registration
Statement to furnish a copy thereof to the Representatives and counsel for
the Underwriters and obtain the consent of the Representatives to the
filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days after the
end of the Company's current fiscal quarter), to make generally available
to the Company's security holders and to deliver to the Representatives an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158);
(g) For so long as any of the Notes are outstanding, to deliver
without charge to the Underwriters and the Trustee, promptly upon their
becoming available, copies of (i) all reports or other publicly available
information that the Company shall mail or otherwise make available to its
securities holders and (ii) all reports, financial statements and proxy or
information statements filed by the Company with the Commission or any
national securities exchange and such other publicly available information
concerning the Company or its Subsidiaries;
19
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Notes for offering
and sale (or obtain an exemption from registration) under the securities
laws of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; provided, however, that the
Company shall not be required to qualify as a foreign corporation or a
dealer in securities or to execute a general consent to service of process
in any jurisdiction in any action other than one arising out of the
offering or sale of the Notes;
(i) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, (i) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any [debt securities issued or guaranteed by the
Company or any Subsidiary and having a maturity of more than one year from
the date of issue, any] shares of Common Stock or any securities
convertible into or exchangeable for Common Stock (other than the Stock,
the PInES, the Mandatorily Convertible Preferred Stock, the Seller
Depositary Shares, the Seller Convertible Redeemable Preferred Stock,
shares issued pursuant to employee benefit plans, qualified stock option
plans or other employee compensation plans existing on the date hereof or
pursuant to currently outstanding options, warrants or rights or upon the
conversion of the Seller Convertible Redeemable Preferred Stock or the
Mandatorily Convertible Preferred Stock, and other than shares issued by
the Company as consideration to any seller of assets or stock that the
Company or any of the Subsidiaries is acquiring, provided that any shares
so issued to such seller or sellers, including any shares issued after the
date of the Prospectus pursuant to the Walibi Acquisition or the Walibi
Tender Offer, in the aggregate, do not exceed one-[third] of the total
equity of the Company outstanding at the time of the first such issuance,
and further provided that such seller or sellers (other than the sellers
of Walibi) contemporaneously with any such issuance or issuances enter
into an agreement with the Representatives in substantially the same form
as the agreement described in this paragraph (i) for the remainder of the
90 day period), or sell or grant options, rights or warrants with respect
to any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the grant of options pursuant to
option plans existing on the date hereof) or (ii) enter
20
into any swap or other derivatives transaction that transfers to another,
in whole or in part, any of the economic benefits or risks of ownership of
such shares of Common Stock, whether any such transaction described in
clause (i) or (ii) above is to be settled by delivery of Common Stock or
other securities, in cash or otherwise, in each case without the prior
written consent of Xxxxxx Brothers Inc.; and to cause each officer and
director of the Company and Hanseatic Corporation, Richland Ventures,
L.P., Richland Ventures II, L.P., Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxx,
Xxxxxxxx, Xxxxxxx, Xxxxxx & Xxxxx II, L.P., Windcrest Partners, [JG
Partnership, Ltd.,] [X. Xxxxx Xxxxxxx] and Xxxxxx X. Xxxxxxx (in the case
of Xxxxxx X. Xxxxxxx only, limited to (A) shares held for his own account
and (B) shares beneficially owned by Lexfor Corporation) to furnish to the
Representatives, prior to the First Delivery Date, a letter or letters, in
form and substance satisfactory to counsel for the Underwriters, pursuant
to which each such person shall agree not to, directly or indirectly,
(iii) offer for sale, sell, pledge or otherwise dispose of (or enter into
any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any
shares of Common Stock or any securities convertible into or exchangeable
for Common Stock or (iv) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the
economic benefits or risks of ownership of such shares of Common Stock,
whether any such transaction described in clause (iii) or (iv) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case for a period of 90 days from the date of the
Prospectus, without the prior written consent of Xxxxxx Brothers Inc.;
(j) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder;
(k) To cause an authorized officer to execute this Agreement on
behalf of each of the Six Flags Subsidiaries on the First Delivery Date;
(l) Not to waive the lock-up agreements executed by the Sellers in
connection with the Six Flags Acquisition whereby each of the Sellers
agreed to not sell any Seller Convertible Redeemable Preferred Stock (or
shares of Common Stock issuable upon conversion thereof) during the period
of 90 days from the date of
21
the Prospectus, without the prior written consent of Xxxxxx Brothers Inc.;
and
(m) To make an offer to purchase the SFTP Senior Subordinated Notes
following the Six Flags Acquisition in accordance with the provisions of
the indenture for the SFTP Senior Subordinated Notes relating to offers to
purchase the SFTP Senior Subordinated Notes upon a change of control of
SFTP.
(n) In connection with the Offering, until the Representatives shall
have notified the Company and the other Underwriters of the completion of
the resale of the Notes, none of the Company nor any of its affiliates has
or will, either alone or with one or more other persons, bid for or
purchase for any account in which it or any of its affiliates has a
beneficial interest any Notes or attempt to induce any person to purchase
any Notes; and neither it nor any of its affiliates will make bids or
purchases for the purpose of creating actual, or apparent, active trading
in, or of raising the price of, the Notes;
(o) To not take, directly or indirectly, any action which is
designed to stabilize or manipulate, or which constitutes or which might
reasonably be expected to cause or result in stabilization or
manipulation, of the price of any security of the Company in connection
with the offering of the Notes;
(p) Upon the closing of the offering of the Notes, (i) to deposit
with and pledge to the Trustee for the benefit of holders of the Company
Senior Notes $_______ which shall be used to purchase Government
Securities (as defined in the Escrow Agreements) in such amount as will be
sufficient upon receipt of scheduled interest and principal payments of
such securities, in the opinion of a nationally recognized firm of public
accountants selected by the Company, to provide for payment in full of the
Scheduled Interest Payments (as defined in the Senior Note Escrow
Agreement) and (ii) to deposit with and pledge to the Trustee for the
benefit of holders of the Company Senior Discount Notes $_______ which
shall be used to purchase Government Securities. The Company will take all
actions necessary to pledge, assign and set over to the Trustee, for the
benefit of holders of the respective Notes, and irrevocably grant to the
Trustee for the benefit of the holders of the respective Notes a first
priority security interest in all of its right, title and interest in such
Government Securities held by the Trustee or on its behalf, in order to
secure the respective obligations of the Company as set forth in the
Escrow Agreements; and
22
(q) To use its best efforts to do and perform all things necessary
to perfect, to the extent permitted by law, a first priority security
interest in favor of the Trustee for the benefit of the holders of the
respective Notes, in the Escrow Account and the Restricted Cash Account.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of producing and distributing this Agreement, the Indentures, the Escrow
Agreements, the Notes and any other related documents in connection with the
offering, purchase, sale and delivery of the Notes; (e) the filing fees incident
to securing any required review by the National Association of Securities
Dealers, Inc. (the "NASD") of the terms of sale of the Notes; (f) listing or
other fees incident to the inclusion of the Common Stock (including the Stock)
for listing on the New York Stock Exchange; (g) the fees and expenses, if
applicable, of qualifying the Notes under the securities laws of the several
jurisdictions as provided in Section 5(h) and of preparing, printing and
distributing a Blue Sky Memorandum (including related fees and expenses of
counsel to the Underwriters); (h) if one is required pursuant to the rules of
the NASD, all fees and expenses of a qualified independent underwriter; (i) the
fees and expenses of the Trustee including fees and disbursements of counsel)
under the Escrow Agreements; (j) all fees and expenses (including fees and
expenses of counsel) of the Company in connection with approval of the Notes by
DTC for "book-entry" transfer and (k) all other costs and expenses incident to
the performance of the obligations of the Company or any of the Subsidiaries
under this Agreement; provided that, except as provided in this Section 6 and in
Section 11, the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Notes which
they may sell and the expenses of advertising any offering of the Notes made by
the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the First Delivery Date, of the representations and warranties of the
Company, Premier Operations, SFEC and SFTP contained herein, to the
23
performance by the Company and each of the Subsidiaries that is a party hereto
of its obligations hereunder, and to each of the following additional terms and
conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the First Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of Xxxxxx &
Xxxxxxx, counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indentures,
the Escrow Agreements, the Notes, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxx Marks & Xxxxx LLP shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed
to the Underwriters and dated the First Delivery Date, in form reasonably
satisfactory to the Representatives, to the effect that:
(i) The Company and each of the Premier Subsidiaries and each
of the Six Flags Subsidiaries have been duly incorporated and are
validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation; each of the Premier
Partnerships and each of the Six Flags Partnerships is validly
existing as a limited partnership in good standing
24
under the laws of its jurisdiction of formation; and the Company,
the Premier Subsidiaries, the Premier Partnerships, the Six Flags
Subsidiaries and the Six Flags Partnerships are each duly qualified
to do business and are in good standing as foreign corporations in
each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification except where the failure to so qualify would not have
a Material Adverse Effect and have all corporate or partnership
power and authority necessary to own or hold their respective
properties and conduct the businesses in which they are engaged as
described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company now outstanding (including the shares of Stock being
delivered on the First Delivery Date) have been duly and validly
authorized and issued, are fully paid and non-assessable and conform
in all material respects to the description thereof contained in the
Prospectus; all of the shares of Stock have been duly authorized
and, when issued and delivered to the Representatives for the
account of each Underwriter against payment therefor as provided
herein, shall be validly issued, fully paid and non-assessable; to
such counsel's knowledge, all of the issued shares of capital stock
of each Premier Subsidiary and each Six Flags Subsidiary have been
duly and validly authorized and issued and are fully paid,
non-assessable and, except for the capital stock of Walibi that is
subject to the Walibi Tender Offer, are owned directly or indirectly
by the Company, free and clear of all liens, encumbrances, equities
or claims, except for liens, encumbrances, equities or claims
arising under the Credit Facilities and the Subordinated Indemnity
Agreement; and 100% of the partnership interest in each of the
Premier Partnerships and each of the Six Flags Partnerships is held
directly or indirectly by the Company, except for the 40% general
partnership interest in Fiesta Partnership held by Fiesta Texas
Theme Park, Ltd., the 99% limited partnership interest in the
Georgia Co-Venture Partnership indirectly held by investors in Six
Flags Fund, Ltd. (L.P.), of which approximately 75% are not
affiliated with the Company, and the 99% limited partnership
interest in the Texas Co-Venture Partnership indirectly held by
investors in Six Flags Funds II, Ltd. (L.P.), of which approximately
% are not
25
affiliated with the Company, free and clear of all liens,
encumbrances, equities or claims, except for liens, encumbrances,
equities or claims arising under the Credit Facilities and the
Co-Venture Parks Agreements;
(iii) There are no preemptive or other rights to subscribe for
or to purchase, nor any restriction upon the voting or transfer of,
any shares of the Stock pursuant to the Company's charter or by-laws
or any agreement or other instrument known to such counsel;
(iv) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries
is a party or of which any property or assets of the Company or any
of the Subsidiaries is the subject which, if determined adversely to
the Company or any of the Subsidiaries, might have a Material
Adverse Effect; and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) Based solely upon oral confirmation from the staff of the
Commission, the Registration Statement was declared effective under
the Securities Act as of the date and time specified in such
opinion; the Prospectus was filed with the Commission pursuant to
the subparagraph of Rule 424(b) of the Rules and Regulations
specified in such opinion on the date specified therein and no stop
order suspending the effectiveness of the Registration Statement has
been issued and, to the knowledge of such counsel, no proceeding for
that purpose is pending or threatened by the Commission;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior
to the First Delivery Date (other than the financial statements and
related schedules therein and other financial or statistical data
included therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the requirements of
the Securities Act and the Rules and Regulations; and the documents
incorporated by reference in the Prospectus (other than the
financial statements and related schedules therein and other
financial or statistical data included therein, as to which
26
such counsel need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of
the Commission thereunder;
(vii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in
the Prospectus or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations which have not
been described or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiaries that is a
party hereto;
(ix) The issue and sale of the Notes being delivered on the
First Delivery Date by the Company and the compliance by the Company
and each of the Subsidiaries that is a party hereto with all of the
provisions of this Agreement, the Escrow Agreements and the
Indentures and the consummation of the transactions contemplated
hereby and by the Six Flags Acquisition (including the offerings of
the Stock and the New SFEC Notes and the entering into of the Six
Flags Credit Facility and any borrowing thereunder in connection
with the Six Flags Acquisition) will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws or other
constitutive documents of the Company or any of the Subsidiaries or,
assuming that all consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Notes by the Underwriters are
obtained, any Federal or New York State statute, the General
Corporation Law of the State of Delaware, or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having
27
jurisdiction over the Company or any of the Subsidiaries or any of
their properties or assets; and, except for the registration of the
Notes under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Notes
by the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement, the Indentures or the Escrow
Agreements by the Company or any of the Subsidiaries that is a party
hereto or thereto and the consummation of the transactions
contemplated hereby and thereby;
(x) To the best of such counsel's knowledge, no holders of
securities of the Company have rights to require the Company to
include such securities with the Notes registered pursuant to the
Registration Statement;
(xi) The Company has full power and authority to enter into
the Indentures; the Indentures have been duly authorized, executed
and delivered by the Company and, assuming due authorization,
execution and delivery of the Indentures by the Trustee, the
Indentures constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, except that the
enforcement thereof may be subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law);
(xii) The Company has full power and authority to offer and
sell the Notes; the Notes have been duly authorized, executed,
authenticated, issued and delivered (assuming due authentication of
the Notes by the Trustee) and, assuming due authentication of the
Notes by the Trustee, such Notes constitute valid and legally
binding obligations of the Company, entitled to the benefits of the
Indentures and enforceable in accordance with their terms, except
that the enforcement thereof may be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and general
28
equitable principles (whether considered in a proceeding in equity
or at law);
(xiii) The Company has full power and authority to enter into
the Escrow Agreements; the Escrow Agreements have been duly
authorized, executed and delivered by the Company (assuming due
authorization, execution and delivery by the Trustee), and are be
valid and legally binding obligations of the Company, enforceable
against the Company in accordance with their terms, except that the
enforcement thereof may be subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law);
(xiv) The Indentures, the Escrow Agreements and the Notes
conform in all material respects to the descriptions thereof
contained in the Prospectus; and
(xv) The Indentures have been qualified under and comply in
all material respects with the Trust Indenture Act of 1939, as
amended (the "Trust Indenture Act").
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and that such counsel is not admitted in any
state other than New York; and, in respect of matters of fact, may rely
upon certificates of officers of the Company or the Subsidiaries, provided
that such counsel shall state that it believes that both the Underwriters
and it are justified in relying upon such certificates. Such counsel shall
also have furnished to the Representatives a written statement, addressed
to the Underwriters and dated the First Delivery Date, in form
satisfactory to the Representatives, to the effect that (x) such counsel
has acted as counsel to the Company on a regular basis (although the
Company is also represented with respect to the Walibi Acquisition, the
Walibi Tender Offer, the Six Flags Acquisition, litigation matters,
regulatory matters and certain other matters, by other outside counsel),
has acted as counsel to the Company in connection with financing
transactions since February
29
1992 and has acted as counsel to the Company in connection with the
preparation of the Registration Statement and (y) based on the foregoing,
no facts have come to the attention of such counsel which lead it to
believe that (I) the Registration Statement (other than the financial
statements and other financial and statistical data contained therein, as
to which such counsel need express no belief), as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading, or that the Prospectus (other than
the financial statements and other financial and statistical data
contained therein, as to which such counsel need express no belief)
contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they
were made, not misleading or (II) any documents incorporated by reference
in the Prospectus (other than the financial statements and other financial
and statistical data contained therein, as to which such counsel need
express no belief) when they were filed with the Commission contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. In rendering
such statement, such counsel may rely upon the opinion and statement
delivered by Xxxx Xxxxxxx & Xxxxxx LLP pursuant to Section 7(e) hereto
with respect to the information covered by such opinion and statement. The
foregoing opinion and statement may be qualified by a statement to the
effect that such counsel does not assume any responsibility for the
accuracy or fairness with respect to the information required to be shown
under the Securities Act and the Rules and Regulations of the statements
contained in the Registration Statement or the Prospectus except for the
statements made in the Prospectus under the captions "Prospectus
Summary--Other Recent Developments--Walibi", "Business--Intercompany
Services Agreement", "Business--Tax Sharing Agreement", "Description of
Other Indebtedness", "Description of Notes", "Description of Capital
Stock", and "Certain United States Federal Income Tax Considerations"
insofar as such statements describe the terms of the Walibi Acquisition
and Walibi Tender Offer, the documents or agreements referred to therein,
the Notes, the Stock, the Seller Convertible Redeemable Preferred Stock,
the Company's other debt instruments or other securities, or the
registration rights referred to therein and concern legal matters.
30
(e) Xxxx Xxxxxxx & Xxxxxx LLP shall have furnished to the
Representatives its written opinion, as special counsel to the Company,
addressed to the Underwriters and dated the First Delivery Date, in form
reasonably satisfactory to the Representatives, as to certain matters set
forth in Section 7(d) and to the effect that the statements set forth in
the Prospectus under the captions "Business--Licenses" and "Description of
Six Flags Agreement", insofar as such statements describe the terms of the
documents or agreements referred to therein, are accurate, complete and
fair.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law of
the State of Delaware and, in respect of matters of fact, may rely upon
certificates of officers of the Company or the Subsidiaries, provided that such
counsel shall state that it believes that both the Underwriters and it are
justified in relying upon such certificates. Such counsel shall also have
furnished to the Representatives a written statement, addressed to the
Underwriters and dated the First Delivery Date, in form satisfactory to the
Representatives, to the effect that (x) such counsel has acted as counsel to the
Company in connection with the Walibi Acquisition, the Walibi Tender Offer and
the Six Flags Acquisition and has reviewed the information (the "Walibi and Six
Flags Information") in the Registration Statement relating to the Walibi
Acquisition, the Walibi Tender Offer, the Six Flags Acquisition and the business
and operations of Walibi and its subsidiaries and SFEC and its subsidiaries and
(y) based on the foregoing, no facts have come to the attention of such counsel
which lead it to believe that (I) the Registration Statement (other than the
financial statements and other financial and statistical data contained therein,
as to which such counsel need express no belief), as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (other than the financial
statements and other financial and statistical data contained therein, as to
which such counsel need express no belief) contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (II) any documents incorporated by
reference in the Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which such counsel need
express no belief) when they were filed with the Commission contained an untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in light of the
31
circumstances under which they were made, not misleading. The foregoing
statement may be qualified by a statement to the effect that the statement's
scope is limited to the Walibi and Six Flags Information.
(f) Xxxxxxxx, Xxxxxx & Finger shall have furnished to the
Representatives its written opinion, as special Delaware counsel to the
Company, addressed to the Underwriters and dated such Delivery Date, in
form reasonably satisfactory to the Representatives, to the effect that,
in connection with the Premier Merger, no shareholder vote was required
under applicable Delaware law and, in connection with the Six Flags
Acquisition, no shareholder vote is required under applicable Delaware
law, and that the Premier Merger and the Six Flags Acquisition otherwise
comply in all respects with applicable Delaware law.
(g) The Representatives shall have received from Xxxxxx & Xxxxxxx,
counsel for the Underwriters, such opinion or opinions and such statement
or statements, dated the First Delivery Date, with respect to the issuance
and sale of the Notes, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably require, and
the Company and the Subsidiaries shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives
shall have received from (I) KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions
and findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings, except for
the financial information and other matters covered in the letters from
Ernst & Young LLP, Xxxxxxx & Xxxxxxx and Xxxxxxxxx Xxxxxxxx & Xxxxxxxx
described immediately hereinafter; (II) Xxxxx & Young LLP a letter, in
form and substance satisfactory to the Representatives, addressed to the
Underwriters and
32
dated the date hereof (i) confirming that they are independent accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the
date hereof, the conclusions and findings of such firm with respect to
certain financial information and other matters relating to SFEC and its
subsidiaries as have been previously agreed to by such firm and the
Representatives; (III) Coopers & Xxxxxxx a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the
date hereof, the conclusions and findings of such firm with respect to
certain financial information and other matters relating to Walibi and its
subsidiaries, as have been previously agreed to by such firm and the
Representatives; and (IV) Xxxxxxxxx Xxxxxxxx & Xxxxxxxx a letter, in form
and substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent accountants within the meaning of the Securities Act and are
in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof, the conclusions and
findings of such firm with respect to certain financial information and
other matters relating to Kentucky Kingdom, as have been previously agreed
to by such firm and the Representatives.
(i) With respect to the letters of KPMG Peat Marwick LLP, Xxxxx &
Young LLP, Xxxxxxx & Xxxxxxx and Xxxxxxxxx Xxxxxxxx & Xxxxxxxx referred to
in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial letters"),
the Company shall have furnished to the Representatives a letter (the
"bring-down letters") of each of such accountants, addressed to the
Underwriters and dated the First Delivery Date (i) confirming that they
are independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, in
the case of the letter of KPMG Peat Marwick LLP, with respect to matters
involving changes or developments since the respective dates as of which
33
specified financial information is given in the Prospectus, as of a date
not more than five days prior to the date of the bring-down letter), the
conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii)
confirming in all material respects the conclusions and findings set forth
in the initial letter.
(j) The Company shall have furnished to the Representatives a
certificate, dated the First Delivery Date, of its Chairman of the Board,
its President or a Vice President and its chief financial officer stating
that:
(i) The representations, warranties and agreements of the
Company and each of Premier Operations, SFEC and SFTP in Section 1
are true and correct as of the First Delivery Date; the Company and
each of the Subsidiaries that is a party hereto have complied with
all their agreements contained herein; and the conditions set forth
in Sections 7(a) and 7(k) have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective
Date, the Registration Statement and Prospectus did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the Effective Date
no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
(k) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus there shall not
have been any change in the capital stock (or partners' equity, as
applicable) other than the Premier Merger or long-term debt of the Company
or any of the Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity (or partners' equity, as
applicable) or results of operations of the Company and its subsidiaries,
otherwise, in each case, than as set forth or contemplated in the
Prospectus, the effect of which, in any such case, is, in the judgment of
the Representatives, so material (to the Company and its Subsidiaries,
taken as a whole) and adverse as to make it impracticable or inadvisable
to proceed with the
34
public offering or the delivery of the Notes being delivered on the First
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(l) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
Rule 436(g)(2) of the Rules and Regulations and (ii) no such organization
shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of any of the Company's
debt securities.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the Notes
being delivered on the First Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(n) The Six Flags Acquisition shall have been or shall be
consummated concurrently with the Offering and without any material waiver
of any of the conditions precedent to any of the parties' obligations
under the Merger Agreement.
(o) Each of the offerings by the Company of the Stock and the PInES
shall have been or shall be consummated concurrently with the Offering.
35
(p) The offering by SFEC of the New SFEC Notes shall be consummated
immediately following the Offering.
(q) Each of the Premier Credit Facility and the Six Flags Credit
Facility shall be in effect and available for borrowing.
(r) No default or event which, with notice or lapse of time or both,
would constitute such a default shall have occurred and be continuing, or
would result from the transactions contemplated hereby to occur prior to,
concurrently with or immediately following the consummation of the
Offering, under (i) the Merger Agreement, (ii) the indentures relating to
any of the Company Senior Discount Notes, the Company Senior Notes, the
1995 Premier Notes, the 1997 Premier Notes, the SFEC Zero Coupon Notes,
the SFTP Senior Subordinated Notes and the New SFEC Notes, (iii) the
credit agreement relating to either the Premier Credit Facility or the Six
Flags Credit Facility or (iv) the Walibi Agreement.
(s) The Premier Merger shall have been consummated.
(t) Each of (i) the License Agreement, (ii) the Subordinated
Indemnity Agreement, (iii) the Intercompany Services Agreement and (iv)
the Tax Sharing Agreement shall have been entered into by the parties
thereto with the provisions described in the Prospectus.
(u) An authorized officer shall have executed this Agreement on
behalf of each of the Six Flags Subsidiaries.
(v) The Company and the Trustee shall have entered into the
Indentures and the Escrow Agreements and the Underwriters shall have
received counterparts, conformed as executed, thereof and the Notes shall
have been duly executed and delivered by the Company and authenticated by
the Trustee.
(w) After the First Delivery Date, no lien will exist upon the
Restricted Cash Account and Escrow Account (and no right or option to
acquire the same will exist in favor of any other person or entity),
except for the pledge and security interest in favor of the Trustee to be
created or provided for in the Escrow Agreements, which pledge and
security interest constitute a first priority perfected pledge and
security interest in and to the Restricted Cash Account and Escrow
Account.
36
(x) The Underwriters shall have received an opinion of a nationally
recognized firm of public accountants selected by the Company, which
provides that the amount of proceeds deposited with the Trustee pursuant
to the Senior Note Escrow Agreement is of an amount that will be
sufficient upon receipt of scheduled interest and principal payments of
Government Securities purchased thereunder to provide for payment in full
of the Scheduled Interest Payments.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and scope reasonably satisfactory to
counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Subsidiaries that are parties hereto,
jointly and severally, shall indemnify and hold harmless each Underwriter
(including any Underwriter in its role as qualified independent underwriter
pursuant to the rules of the NASD), its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Notes), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document prepared
or executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the Notes
under the securities laws of any jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Notes or the Offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company and the
Subsidiaries that are parties hereto shall not be liable under this clause (iii)
to the extent
37
that it is determined in a final judgment by a court of competent jurisdiction
that such loss, claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct), and shall
reimburse each Underwriter and each such officer, employee or controlling person
promptly upon demand for any legal or other expenses reasonably incurred by that
Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Subsidiaries that are parties hereto shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application, in reliance upon and in
conformity with written information concerning any Underwriter furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein; and provided further that with respect to
any such untrue statement or omission made in the Preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not enure to the
benefit of the Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Notes concerned if, to the extent
that such sale was an initial sale by such Underwriter and any such loss, claim,
damage or liability of such Underwriter is a result of the fact that both (A) a
copy of the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person, and (B) the
untrue statement or omission in the Preliminary Prospectus was corrected in the
Prospectus unless, in either case, such failure to deliver the Prospectus was a
result of noncompliance by the Company with Section 5(c). The foregoing
indemnity agreement is in addition to any liability which the Company or any of
the Subsidiaries that are parties hereto may otherwise have to any Underwriter
or to any officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Subsidiaries that are parties hereto, each of
their respective officers and employees, each of their respective directors, and
each person, if any, who controls the Company or any Subsidiary that is a party
hereto within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any Subsidiary that is a party hereto or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage,
38
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto, or (B) in any Blue Sky Application or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, or in
any Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading, but in each case only
to the extent that the untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with written
information concerning such Underwriter furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for inclusion
therein, and shall reimburse the Company, any such Subsidiary and any such
director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company, any such Subsidiary or any such director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company, any such
Subsidiary, or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable
39
costs of investigation; provided, however, that the Representatives shall have
the right, upon written notice to the Company, to employ counsel to represent
jointly the Representatives and those other Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company and the Subsidiaries that are parties hereto
under this Section 8 if, in the reasonable judgment of the Representatives, it
is advisable for the Representatives and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the reasonable fees and expenses of such separate counsel shall be
paid, jointly and severally, by the Company and the Subsidiaries that are
parties hereto. It is understood that the indemnifying party or parties shall
not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other charges
of more than one separate firm of attorneys (in addition to any local counsel)
at any one time for all such indemnified party or parties. No indemnifying party
shall (i) without the prior written consent of the indemnified parties (which
consent shall not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled with
the consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Subsidiaries that are parties hereto on the one
hand and the Underwriters on the other from the offering of the Notes or (ii) if
the allocation provided by clause (i) above is not
40
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Subsidiaries that are parties hereto on the one
hand and the Underwriters on the other with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Subsidiaries that are parties
hereto on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Notes purchased under this Agreement (before deducting
expenses) received by the Company on the one hand, and the total underwriting
discounts and commissions received by the Underwriters with respect to the
shares of the Notes purchased under this Agreement, on the other hand, bear to
the total gross proceeds from the offering of the shares of the Notes under this
Agreement, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Underwriters, the intent of the parties and their relative knowledge,
access to information and opportunity to correct or prevent such statement or
omission. For purposes of the preceding two sentences, the net proceeds deemed
to be received by the Company shall be deemed to be also for the benefit of the
Subsidiaries that are parties hereto and information supplied by the Company
shall also be deemed to have been supplied by the Subsidiaries that are parties
hereto. The Company, the Subsidiaries that are parties hereto and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Notes underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the
41
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 8(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company and the
Subsidiaries that are parties hereto acknowledge that the statements with
respect to the public offering of the Notes by the Underwriters set forth in the
first and last paragraphs on the cover page of, the legend concerning
stabilization on the third page of and statements under the caption
"Underwriting" including but not limited to the concession and reallowance
figures, the Prospectus constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Notes which the
defaulting Underwriter agreed but failed to purchase on the First Delivery Date
in the respective proportions which the aggregate principal amount of Notes set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total aggregate principal amount of Notes set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Notes on the First Delivery Date if the total
aggregate principal amount of Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total aggregate principal amount of Notes to be purchased on the First Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the aggregate principal amount of Notes which it
agreed to purchase on the First Delivery Date pursuant to the terms of Section
2. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Notes to be purchased
on the First Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares which
the defaulting Underwriter or Underwriters agreed but failed to purchase on the
First Delivery Date, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter or the Company, except that
42
the Company will continue to be liable for the payment of expenses to the extent
set forth in Section 6. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases Notes which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Notes of a defaulting
or withdrawing Underwriter, either the Representatives or the Company may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Notes if, prior to that time,
any of the events described in Sections 7(k), 7(l) or 7(m) shall have occurred
or if the Underwriters shall decline to purchase the Notes for any reason
permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Company shall
fail to tender the Notes for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled (other than by reason of any events described in Section 7(m)
except for the suspension of trading or minimum prices of the securities of the
Company), the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Notes, and promptly following demand the Company shall pay the full amount
thereof to the Representatives. If this Agreement is terminated pursuant to
Section 9 by reason of the default of one or more Underwriters, the Company
shall not be obligated to reimburse any defaulting Underwriter on account of
those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman
43
Brothers Inc., Three World Financial Center, New York, New York 10285,
Attention: Syndicate Department (Fax: 000-000-0000), with a copy, in the
case of any notice pursuant to Section 8(c), to the Director of
Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 0 Xxxxx
Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or any of the Subsidiaries, shall be delivered
or sent by mail, telex or facsimile transmission to 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxx (Fax:
000-000-0000);
provided, however, that any notice to a Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf of the
Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Subsidiaries that are parties hereto and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the applicable Subsidiaries contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of each Underwriter and the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company within the meaning of Section 15 of the
Securities Act. Nothing in this Agreement is intended or shall be construed to
give any person, other than the persons referred to in this Section 13, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the applicable Subsidiaries and the
Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and
44
payment for the Notes and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
15. Definition of the Terms "Business Day", "Premier Subsidiary",
"Premier Partnership", "Six Flags Subsidiary", "Six Flags Partnership",
"Subsidiary" and "Co-Venture Parks Agreements". For purposes of this Agreement,
(a) "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) "Premier Subsidiary" means each of Premier Operations,
Walibi, Funtime Parks, Inc., an Ohio corporation, Funtime, Inc., an Ohio
corporation, Wyandot Lake, Inc., an Ohio corporation, Darien Lake Theme Park and
Camping Resort, Inc., a New York corporation, Tierco Maryland, Inc., a Delaware
corporation, Tierco Water Park, Inc., an Oklahoma corporation, Frontier City
Properties, Inc., an Oklahoma corporation, Stuart Amusement Company, a
Massachusetts corporation, Premier Waterworld Concord Inc., a California
corporation, Premier Waterworld Sacramento Inc., a California corporation,
Premier Parks of Colorado Inc., a Colorado corporation, Great Escape Holding
Inc., a New York corporation, Great Escape LLC, a New York limited liability
company, Great Escape Theme Park LLC, a New York limited liability company,
Riverside Park Enterprises, Inc., a Massachusetts corporation, Riverside Park
Food Services, Inc., a Massachusetts corporation, KKI, LLC, a Delaware limited
liability company, Park Management Corp., a California corporation, Indiana
Parks, Inc., an Indiana corporation, Aurora Campground, Inc., an Ohio
corporation, Ohio Campgrounds Inc., an Ohio corporation and Premier
International Holdings, Inc., a Delaware corporation and [other Premier entities
held in corporate form and as limited liability companies], (c) "Premier
Partnership" means each of Frontier City Partners, Limited Partnership, an
Oklahoma limited partnership, Elitch Gardens, L.P., a Colorado limited
partnership and [other Premier entities held as limited partnerships], (d) "Six
Flags Subsidiary" means each of SFEC, SFTP and [other Six Flags entities held in
corporate form or as limited liability companies], (e) "Six Flags Partnership"
means each of Fiesta Partnership, the Georgia Co-Venture Partnership, the Texas
Co-Venture Partnership and [other Six Flags entities held as limited
partnerships], (f) "Subsidiary" means each of the Premier Subsidiaries, the
Premier Partnerships, the Six Flags Subsidiaries and the Six Flags Partnerships;
provided, however, that the term "Subsidiary" shall include the Six Flags
Subsidiaries and the Six Flags Partnerships only as of and after the First
Delivery Date, and "Co-Venture Parks Agreements" means (i) the Overall
Agreement, dated as of February 15, 1997, among Six Flags Fund, Ltd. (L.P.),
Xxxxxx Family Trust, SFG, Inc., SFG-I, LLC, SFG-II, LLC, Six Flags Over Georgia,
45
Ltd., SFOG II, Inc., SFOG II Employee, Inc., SFOG Acquisition A, Inc., SFOG
Acquisition B, L.L.C., Six Flags Over Georgia, Inc., Six Flags Services of
Georgia, Inc., SFTP and SFEC and the Related Agreements (as defined therein),
(ii) the Overall Agreement, dated as of November 24, 1997, among Six Flags Over
Texas Fund, Ltd., Flags' Directors, L.L.C., FD-II, L.L.C., Texas Flags, Ltd.,
SFOT Employee, Inc., SFOT Acquisition I, Inc., SFOT Acquisition II, Inc., Six
Flags Over Texas, Inc., SFTP and SFEC and the Related Agreements (as defined
therein), and (iii) the Lease Agreement with Option to Purchase, dated as of
March 9, 1996, among Fiesta Texas Theme Park, Ltd., a Texas Limited Partnership,
San Antonio Theme Park, L.P., and Six Flags San Antonio, L.P. and the
Transaction Documents (as defined therein), in each case, as the same may be
modified or amended from time to time.
16. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of New York.
17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
46
If the foregoing correctly sets forth the agreement among the
Company, the Subsidiaries that are parties hereto and the Underwriters, please
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
Premier Parks Inc.
By
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
The Premier Subsidiaries (as listed
in Section 15 but not
including Walibi)
By
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
The Premier Partnerships (as listed
in Section 15)
By Each of their respective
General Partners
By
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
The Six Flags Subsidiaries (as
listed in Section 15)
By
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
Accepted:
47
Xxxxxx Brothers Inc.
Salomon Brothers Inc
NationsBanc Xxxxxxxxxx Securities LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By Xxxxxx Brothers Inc.
By
--------------------------------
Authorized Representative
SCHEDULE 1
Aggregate
Principal Amount
at Maturity of
Company Senior
Underwriters Discount Notes
------------ --------------
Xxxxxx Brothers Inc...............................
Salomon Brothers Inc..............................
NationsBanc Xxxxxxxxxx Securities LLC.............
----------
Total......................................... ==========
Aggregate
Principal Amount
of Company Senior
Underwriters Notes
------------ -----------------
Xxxxxx Brothers Inc...............................
Salomon Brothers Inc..............................
NationsBanc Xxxxxxxxxx Securities LLC.............
----------
Total......................................... ==========
