EXHIBIT 1(a)
[Draft--3/18/98]
10,400,000 Shares
PREMIER PARKS INC.
Common Stock
U.S. UNDERWRITING AGREEMENT
, 1998
Xxxxxx Brothers Inc.
Xxxxx Xxxxxx Inc.
Xxxxxx Xxxx LLC
NationsBanc Xxxxxxxxxx Securities LLC
As Representatives of the several
U.S. Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Premier Parks Inc., a Delaware corporation (the "Company"), proposes to
sell to the U.S. Underwriters named in Schedule 1 hereto (the "U.S.
Underwriters"), and the U.S. Underwriters propose, severally and not jointly, to
purchase 10,400,000 shares (the "Firm Stock") of the Company's Common Stock, par
value $.05 per share (the "Common Stock"). In addition, the Company proposes to
grant to the U.S. Underwriters an option to purchase up to an additional
1,560,000 shares of the Common Stock on the terms and for the purposes set forth
in Section 2 (the "Option Stock"). The Firm Stock and the Option Stock, if
purchased, are hereinafter collectively called the "Stock". This is to confirm
the agreement concerning the purchase of the Stock from the Company by the U.S.
Underwriters.
It is understood by all parties that the Company is currently entering
into an agreement dated the date hereof (the "International Underwriting
Agreement") providing for the sale by the Company of 2,990,000 shares of Common
Stock (including the over-allotment option thereunder) (the "International
Stock") through arrangements with certain underwriters outside the United States
(the "International
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Managers"), for whom Xxxxxx Brothers International (Europe), Xxxxx Xxxxxx
Inc., Xxxxxx Xxxx LLC and NationsBanc Xxxxxxxxxx Securities LLC are acting as
lead managers (the "Lead Managers"). The U.S. Underwriters and the
International Managers simultaneously are entering into an agreement between
the U.S. and international underwriting syndicates (the "Agreement Between
U.S. Underwriters and International Managers") which provides for, among
other things, the transfer of shares of Common Stock between the two
syndicates.
One form of prospectus relating to the Stock and one form of prospectus
relating to the International Stock are to be used in connection with the
offering (the "Offering") of the Stock and the International Stock. The latter
form of prospectus will be identical to the former except for certain substitute
pages as included in the registration statement and amendments thereto referred
to below. Except as used in Sections 2, 3, 4, 9 and 10 herein, and except as the
context may otherwise require, references herein to the Stock shall include all
the shares which may be sold pursuant to either this Agreement or the
International Underwriting Agreement, and references herein to any prospectus
whether in preliminary or final form, and whether as amended or supplemented,
shall include both the U.S. and the international versions thereof. As used in
this Agreement, the term "Underwriter" includes U.S. Underwriters and
International Managers.
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 Six
Flags Entertainment Corporation ("SFEC"), and that, in connection with the Six
Flags Acquisition, the Company is concurrently offering $ million aggregate
principal amount at maturity of its senior discount notes due 2008 (the "Company
Senior Discount Notes") with estimated gross proceeds of $250 million, $280
million aggregate principal amount of its senior notes due 2006 (the "Company
Senior Notes") 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
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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
333-45859), and amendments thereto, with respect to the Stock 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 U.S. 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 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"
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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 Stock 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 Stock
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 333-45859). 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
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(as to the Prospectus and any amendment or supplement thereto) contain
an untrue statement of a material fact or omit to state a 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 or the Lead Managers 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
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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 (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
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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 to the U.S. Underwriters hereunder and to the International
Managers under the International Underwriting Agreement 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 and the International Underwriting
Agreement have 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 or thereto, 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 or thereto.
(h) The execution, delivery and performance of this Agreement
and the International Underwriting Agreement 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
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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 Stock by the U.S. Underwriters and the
International Managers 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 Stock
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 Stock by the U.S. Underwriters and
the International Managers, 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 or the International Underwriting
Agreement by the Company or any of the Subsidiaries 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
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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, 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
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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 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
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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 xxxx 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 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,
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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
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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
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
15
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 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 Company Senior Discount Notes, the Company Senior
Notes 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
16
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 relating to any of the Company Senior Discount Notes,
the Company Senior Notes, 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 Sharing Agreement", "Description of Six
Flags Agreement", "Description of Indebtedness" and "Description of
Securities", 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
17
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.
2. Purchase of the Stock by the U.S. 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 10,400,000 shares of
the Firm Stock to the several U.S. Underwriters and each of the U.S.
Underwriters, severally and not jointly, agrees to purchase the number of shares
of the Firm Stock set opposite that U.S. Underwriter's name in Schedule 1
hereto.
In addition, the Company grants to the U.S. Underwriters an option to
purchase up to 1,560,000 shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally and not jointly for the account of the U.S. Underwriters in
proportion to the number of shares of Firm Stock set opposite the name of such
U.S. Underwriters in Schedule 1 hereto. The respective purchase obligations of
each U.S. Underwriter with respect to the Option Stock shall be adjusted by the
Representatives so that no U.S. Underwriter shall be obligated to purchase
Option Stock other than in 100 share amounts. The price of both the Firm Stock
and any Option Stock shall be $ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein and in the International
Underwriting Agreement.
3. Offering of Stock by the U.S. Underwriters.
Upon authorization by the Representatives of the release of the Firm
Stock, the several U.S. Underwriters propose to offer the Firm Stock for sale
upon the terms and conditions set forth in the Prospectus.
18
Each U.S. Underwriter agrees that, except to the extent permitted by
the Agreement Between U.S. Underwriters and International Managers, it will not
offer or sell any of the Stock outside of the United States and Canada.
4. Delivery of and Payment for the Stock. Delivery of and payment for
the Firm Stock 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 fourth 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 certificates representing the Firm Stock to the
Representatives for the account of each U.S. Underwriter against payment to or
upon the order of 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 U.S. Underwriter or International Manager) and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligations of each U.S. Underwriter hereunder. Upon delivery, the Firm
Stock shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the First Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Firm Stock, the Company shall make the
certificates representing the Firm Stock 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.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Representatives, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor
19
earlier than the second business day after the date on which the option shall
have been exercised nor later than the third business day after the date on
which the option shall have been exercised. The date and time the shares of
Option Stock are delivered are sometimes referred to as the "Second Delivery
Date" and the First Delivery Date and the Second Delivery Date are sometimes
each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Representatives
and the Company) at 10:00 A.M., New York City time, on the Second Delivery Date.
On the Second Delivery Date, the Company shall deliver or cause to be delivered
the certificates representing the Option Stock to the Representatives for the
account of each U.S. Underwriter against payment to or upon the order of 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 U.S. Underwriter or
International Manager), and delivery at the time and place specified pursuant to
this Agreement is a further condition of the obligations of each U.S.
Underwriter hereunder. Upon delivery, the Option Stock shall be registered in
such names and in such denominations as the Representatives shall request in the
aforesaid written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Stock, the Company shall make the
certificates representing the Option Stock 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 Second 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
20
further amendment or any supplement to the Registration Statement or to
the Prospectus and to 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 Stock 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 U.S. 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
21
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 Stock 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 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 U.S. 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 U.S. 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
22
with Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date,
to furnish to the Representatives copies of all materials furnished by
the Company to its public shareholders and all public reports and all
reports and financial statements furnished by the Company to the
principal national securities exchange upon which the Common Stock may
be listed pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule or
regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Stock 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 Stock; 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 Stock;
(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 shares of Common Stock or any
securities convertible into or exchangeable for Common Stock (other
than the Stock, the International 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
23
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-fifth 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 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., Lawrence, Tyrrell, Xxxxxx &
Smith, Lawrence, Xxxxxxx, Xxxxxx & Xxxxx II, L.P., Windcrest Partners,
[JG Partnership, Ltd.,] [J. 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
24
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 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.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock 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
25
this Agreement; (d) the costs of producing and distributing this Agreement, the
International Underwriting Agreement, the Agreement Between U.S. Underwriters
and International Managers, the Agreement Among International Managers, the
International Selling Agreement and any other related documents in connection
with the offering, purchase, sale and delivery of the Stock; (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 Stock; (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 Stock 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; and
(i) 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 U.S. Underwriters
shall pay their own costs and expenses, including the costs and expenses of
their counsel, any transfer taxes on the Stock which they may sell and the
expenses of advertising any offering of the Stock made by the U.S. Underwriters.
7. Conditions of U.S. Underwriters' Obligations. The respective
obligations of the U.S. Underwriters hereunder are subject to the accuracy, when
made and on each Delivery Date, of the representations and warranties of the
Company, Premier Operations, SFEC and SFTP contained herein, to the 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.
26
(b) No U.S. Underwriter or International Manager shall have
discovered and disclosed to the Company on or prior to such 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 Cravath, Swaine & Xxxxx, counsel for the U.S.
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
International Underwriting Agreement, the Stock, 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
U.S. 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 U.S. Underwriters and dated such 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 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
27
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 such 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 U.S.
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
affiliated with the Company, free and clear of all liens,
encumbrances,
28
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 such 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
29
reference in the Prospectus (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), 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) Each of this Agreement and the International
Underwriting Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiaries that is
a party hereto or thereto;
(ix) The issue and sale of the shares of Stock being
delivered on such Delivery Date by the Company and the
compliance by the Company and each of the Subsidiaries that is
a party hereto or thereto with all of the provisions of this
Agreement and the International Underwriting Agreement and the
consummation of the transactions contemplated hereby and
thereby (including the offerings of the Company Senior
Discount Notes, the Company Senior Notes 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
30
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 Stock by the U.S. Underwriters and the
International Managers 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
jurisdiction over the Company or any of the Subsidiaries or
any of their properties or assets; and, except for the
registration of the Stock 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 Stock by the U.S.
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 or the International
Underwriting Agreement 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; and
(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 Stock
registered pursuant to the Registration Statement.
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
31
that such counsel shall state that it believes that both the U.S.
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 U.S. Underwriters and dated such 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 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 5(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
32
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 Indebtedness", "Description of Securities", "Description of PInES"
and "Description of Depositary Arrangements" insofar as such statements
describe the terms of the Walibi Acquisition and Walibi Tender Offer,
the documents or agreements referred to therein, the Stock, the Seller
Convertible Redeemable Preferred Stock, the Company's debt instruments
or other securities, or the registration rights referred to therein and
concern legal matters.
(e) Xxxx Xxxxxxx & Xxxxxx LLP shall have furnished to the
Representatives its written opinion, as special counsel to the Company,
addressed to the U.S. Underwriters and dated such 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 U.S. 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 U.S.
Underwriters and dated such 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
33
"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 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 U.S. 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.
34
(g) The Representatives shall have received from Cravath,
Swaine & Xxxxx, counsel for the U.S. Underwriters, such opinion or
opinions and such statement or statements, dated such Delivery Date,
with respect to the issuance and sale of the Stock, 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 U.S. 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, Coopers & Xxxxxxx and Xxxxxxxxx Xxxxxxxx & Xxxxxxxx described
immediately hereinafter; (II) Ernst & Young LLP a letter, in form and
substance satisfactory to the Representatives, addressed to the U.S.
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 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 U.S. Underwriters and dated the date
35
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 U.S. 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,
Ernst & Young LLP, Coopers & 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 U.S. Underwriters and dated such 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 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
36
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 such 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 such 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 public offering or the
delivery of the Stock being delivered on
37
such 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 U.S. Underwriters, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock being
delivered on such 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.
38
(o) Each of the offerings by the Company of the Company Senior
Discount Notes, the Company Senior Notes and the PInES shall have been
or shall be consummated concurrently with the Offering.
(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) Delivery of and payment for the Firm Stock under the
International Underwriting Agreement shall have occurred concurrently
with delivery of and payment for the Firm Stock hereunder on the First
Delivery Date.
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
39
are in form and scope reasonably satisfactory to counsel for the U.S.
Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Subsidiaries that are parties hereto,
jointly and severally, shall indemnify and hold harmless each U.S.
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 U.S.
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 Stock),
to which that U.S. 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 Stock 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 U.S. Underwriter in connection
with, or relating in any manner to, the Stock 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 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 U.S.
Underwriter
40
through its gross negligence or willful misconduct), and shall
reimburse each U.S. Underwriter and each such officer, employee or
controlling person promptly upon demand for any legal or other expenses
reasonably incurred by that U.S. 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 U.S. Underwriter or any International
Manager furnished to the Company through the Representatives or Lead
Managers by or on behalf of any U.S. Underwriter or International
Manager 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 U.S. Underwriter
from whom the person asserting any such losses, claims, damages or
liabilities purchased the Stock concerned if, to the extent that such
sale was an initial sale by such U.S. Underwriter and any such loss,
claim, damage or liability of such U.S. 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
Stock 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 U.S.
Underwriter or to any officer, employee or controlling person of that
U.S. Underwriter.
(b) Each U.S. 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
41
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, 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 U.S. Underwriter furnished to the
Company through the Representatives by or on behalf of that U.S.
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 U.S. 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
42
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 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 U.S. 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 U.S. 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 U.S. 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
43
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 U.S. Underwriters on the other from the offering of the Stock
or (ii) if the allocation provided by clause (i) above is not 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 U.S. 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 U.S. 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 Stock 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 U.S. Underwriters with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total
gross proceeds from the offering of the shares of the Stock 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 U.S. Underwriters, the
intent of the parties and their relative
44
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
U.S. 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 U.S. 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 U.S. Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which
the Stock underwritten by it and distributed to the public was offered
to the public exceeds the amount of any damages which such U.S.
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 Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The U.S. 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 U.S. 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 Stock by the U.S.
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 U.S. Underwriters furnished in
writing to the Company by or on
45
behalf of the U.S. Underwriters specifically for inclusion in the
Registration Statement and the Prospectus.
9. Defaulting U.S. Underwriters.
If, on either Delivery Date, any U.S. Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting U.S. Underwriters shall be obligated to purchase the Stock which
the defaulting U.S. Underwriter agreed but failed to purchase on such Delivery
Date in the respective proportions which the number of shares of the Firm Stock
set opposite the name of each remaining non-defaulting U.S. Underwriter in
Schedule 1 hereto bears to the total number of shares of the Firm Stock set
opposite the names of all the remaining non-defaulting U.S. Underwriters in
Schedule 1 hereto; provided, however, that the remaining non-defaulting U.S.
Underwriters shall not be obligated to purchase any of the Stock on such
Delivery Date if the total number of shares of the Stock which the defaulting
U.S. Underwriter or U.S. Underwriters agreed but failed to purchase on such date
exceeds 9.09% of the total number of shares of the Stock to be purchased on such
Delivery Date, and any remaining non-defaulting U.S. Underwriter shall not be
obligated to purchase more than 110% of the number of shares of the Stock which
it agreed to purchase on such Delivery Date pursuant to the terms of Section 2.
If the foregoing maximums are exceeded, the remaining non-defaulting U.S.
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 Stock to be purchased
on such Delivery Date. If the remaining U.S. Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase the shares which
the defaulting U.S. Underwriter or U.S. Underwriters agreed but failed to
purchase on such Delivery Date, this Agreement (or, with respect to the Second
Delivery Date, the obligation of the U.S. Underwriters to purchase, and of the
Company to sell, the Option Stock) shall terminate without liability on the part
of any non- defaulting U.S. Underwriter or the Company, except that 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 "U.S. Underwriter" includes,
for all purposes of this Agreement unless the context requires otherwise, any
party not listed in Schedule 1 hereto who,
46
pursuant to this Section 9, purchases Stock which a defaulting U.S. Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting U.S. 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 Stock of a defaulting
or withdrawing U.S. 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
U.S. Underwriters may be necessary in the Registration Statement, the Prospectus
or in any other document or arrangement.
10. Termination. The obligations of the U.S. 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 Firm Stock 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 U.S. Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
11. Reimbursement of U.S. Underwriters' Expenses. If the Company shall
fail to tender the Stock for delivery to the U.S. 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
U.S. 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 U.S. Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the U.S. Underwriters in connection with this Agreement and the proposed
purchase of the Stock, 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 U.S. Underwriters,
the Company shall not be obligated to reimburse any defaulting U.S. Underwriter
on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
47
(a) if to the U.S. Underwriters, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx 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 U.S. Underwriter pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile transmission
to such U.S. 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 U.S. 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 U.S. 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 U.S. Underwriter and the person or persons, if any, who
control any U.S. Underwriter within the meaning of Section 15 of the Securities
Act and for the benefit of each International Manager (and officers, employees
and such controlling persons thereof) who offers or sells any shares of Common
Stock in accordance with the terms of the Agreement Between U.S. Underwriters
and International Managers and (B) the indemnity agreement of the U.S.
Underwriters contained in Section 8(b) of this Agreement shall be deemed to
48
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 U.S.
Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock 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
49
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, [S.F.
Holdings, Inc., a Delaware corporation, SFTP Inc., a Delaware corporation, S.F.
Sponsorship Services, Inc., a Delaware corporation, Six Flags Over Georgia,
Inc., a Delaware corporation, SFOG II, Inc., a Delaware corporation, SFOG II
Employee, Inc., a Delaware corporation, SFOG Acquisition A, Inc., a Delaware
corporation, SFOG Acquisition B, LLC, a Delaware limited liability company, Six
Flags Over Texas, Inc., a Delaware corporation, SFOT Employee, Inc., a Delaware
corporation, SFOT Acquisition I, Inc.,, a Delaware corporation, SFOT Acquisition
II, Inc., a Delaware corporation, SFOT II, Inc., a Delaware corporation,
American National Indemnity Co., a Vermont corporation, Six Flags Beverages,
Inc., a Texas corporation, Funtircity Family Entertainment Parks, Inc., a
Delaware corporation, Funtricity Vicksburg Family Entertainment Park Inc., a
Delaware corporation, Pennrec, Co., a Delaware corporation, Six Flags Admiral,
Inc., a Delaware corporation, Six Flags Management Corp., a Delaware
corporation, Six Flags Power Plant, Inc., a Delaware corporation, Six Flags
Services, Inc., a Delaware Corporation, Six Flags Services of Georgia, Inc., a
Georgia corporation, Six Flags Services of Illinois, Inc. , a Delaware
corporation, Six Flags Services of Missouri, Inc., a Delaware corporation, Six
Flags Services of Texas, Inc., a Delaware corporation, Stars Hall of Fame, Inc.,
a Delaware corporation, San Xxxxxxx Xxxx GP, LLC, a Delaware limited liability
company, SFTP San Antonio GP, Inc., a Delaware corporation, Texas Flags Ltd., a
Texas corporation, and SFTP San Antonio, Inc., a Delaware corporation], (e) "Six
Flags Partnership" means each of Fiesta Partnership, the Georgia Co-Venture
Partnership, the Texas Co-Venture Partnership and [Six Flags San Antonio, L.P.,
a Delaware limited partnership], (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,
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
50
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.
51
If the foregoing correctly sets forth the agreement among the Company,
the Subsidiaries that are parties hereto and the U.S. 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
----------------------------------
52
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
Accepted:
Xxxxxx Brothers Inc.
Xxxxx Xxxxxx Inc.
Xxxxxx Xxxx LLC
NationsBanc Xxxxxxxxxx Securities LLC
For themselves and as Representatives
of the several U.S. Underwriters named
in Schedule 1 hereto
By Xxxxxx Brothers Inc.
By ----------------------------------
Authorized Representative
SCHEDULE 1
Number
Underwriters of Firm Shares
------------ --------------
Xxxxxx Brothers Inc......................................
Xxxxx Xxxxxx Inc.........................................
Xxxxxx Xxxx LLC..........................................
NationsBanc Xxxxxxxxxx Securities LLC....................
---------------
Total..............................................
---------------
---------------
