L&W Draft--3/23/98
Exhibit 1(f)
SIX FLAGS ENTERTAINMENT CORPORATION
PREMIER PARKS INC.
$170,000,000 _% Senior Notes due 2006
UNDERWRITING AGREEMENT
, 1998
▇▇▇▇▇▇ Brothers Inc.
Salomon Brothers Inc
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
As Representatives of the several
Underwriters named in Schedule 1,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Six Flags Entertainment Corporation, a Delaware corporation
("SFEC"), proposes to sell to the several Underwriters (the "Offering") named on
Schedule 1 hereto (the "Underwriters") $170,000,000 __% Senior Notes due 2006 of
the Company (the "Notes"). The Notes will be fully and unconditionally
guaranteed (the "Guarantee" on a fully subordinated basis by Premier Parks Inc.,
a Delaware corporation (the "Company"). The Notes are to be issued under an
indenture, to be entered into and to be dated as of _______, 1998 (the
"Indenture") between the Company, SFEC and The Bank of New York, as Trustee. In
addition, SFEC will enter into a pledge, escrow and disbursement agreement (the
"Escrow Agreement") which will secure certain of the Company's and SFEC's
obligations under the Notes.
It is also understood by all parties that SFEC is undertaking the
Offering in connection with the Company's acquisition (the "Six Flags
Acquisition") from the current stockholders (the "Sellers") of all of the
capital stock of SFEC, and that, in connection with the Six Flags Acquisition,
the Company is concurrently offering (the "Common Stock Offering"), with the
over-allotment option, _______ shares of its Common Stock (the "Stock"),
$________ million aggregate principal amount at maturity of its senior discount
notes due
2
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 Agreement among it, certain of the Six Flags Subsidiaries (as defined in
Section 15) and ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇ Commercial Paper, Inc. It is further understood by all
parties 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, SFEC
and Certain of the Subsidiaries. The Company and Premier Operations (as to
themselves and their subsidiaries) and, SFEC and SFTP (as to themselves and
their subsidiaries) represent, warrant and agree, jointly and severally, that:
(a) A registration statement on Form S-3 (file number 333-46897),
and amendments thereto, with respect to the Notes has (i) been prepared by
the Company and SFEC 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 and SFEC to you as the representatives (the "Representatives") of
the Underwriters. Upon your written request, but not without your
agreement, the Company and SFEC will also file a Rule 462(b) Registration
Statement in accordance with Rule 462(b). As used in this Agreement,
3
"Effective Time" means the date and the time as of which such registration
statement, the most recent post-effective amendment thereto, if any, or
any Rule 462(b) Registration Statement became or becomes effective;
"Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement,
or amendments thereof, before it became effective under the Securities Act
and any prospectus relating to the Notes filed with the Commission by the
Company and SFEC with the consent of the Representatives pursuant to Rule
424(a) of the Rules and Regulations; "Registration Statement" means such
registration statement, as amended at the Effective Time, including any
documents incorporated by reference therein at such time and all
information contained in the final prospectus relating to the Notes filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations
in accordance with Section 5(a) hereof and deemed to be a part of the
registration statement as of the Effective Time pursuant to paragraph (b)
of Rule 430A of the Rules and Regulations and, in the event any Rule
462(b) Registration Statement becomes effective prior to the First
Delivery Date, also means such registration statement as so amended,
unless the context otherwise requires; "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to paragraph (1)
or (4) of Rule 424(b) of the Rules and Regulations; and "Rule 462(b)
Registration Statement" means the registration statement and any
amendments thereto filed pursuant to Rule 462(b) of the Rules and
Regulations relating to the offering covered by the initial Registration
Statement (file number 333-46897). Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to refer to
and include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Securities Act, as of the date of such
Preliminary Prospectus or the Prospectus, as the case may be. The
Commission has not issued any order preventing or suspending the use of
any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus, any
further amendments or supplements to the Registration Statement or the
Prospectus and any Rule 462(b) Registration Statement will, when they
become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the
applicable Effective Time (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a
4
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 and SFEC
through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(d) The Company, each of the Premier Subsidiaries and, 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 (as defined in Section
15) is 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 each
of the Six Flags Subsidiaries and each of the Six Flags Partnerships are
duly qualified to do business and are 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 such
qualification, except where the failure to so qualify would not have in
the aggregate a material adverse effect on the consolidated financial
position, stockholders' equity (or partners' equity, as applicable),
results of operations, business or prospects of the Company and the
Subsidiaries taken as a whole and the Six Flags 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) and none of the subsidiaries of
SFEC (other than the remaining Six Flags Subsidiaries) is a "significant
subsidiary", as such term is defined in Rule 405 of the Rules and
5
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 and the
Six Flags Subsidiaries taken as a whole.
(e) The Company and SFEC has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital stock of
the Company and SFEC 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, has been
duly and validly authorized and issued, are 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 owned directly or
indirectly by the Company and SFEC, as the case may be, 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 ▇▇▇▇▇▇▇ ▇▇, L.P. (the "Georgia
Co-Venture Partnership") indirectly held by investors in Six Flags Fund,
Ltd. (L.P.), of which approximately 75% are not affiliated with the
Company, and the 99% limited partnership interest in Texas Flags, Ltd.
(the "Texas Co-Venture Partnership") indirectly held by investors in Six
Flags Fund II, Ltd. (L.P.), of which approximately % are not affiliated
with the Company, will be, as applicable, held directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims
except for liens, encumbrances, equities or claims under the Credit
Facilities and the Co-Venture Parks Agreements (as defined in Section 15).
(f) The unissued shares of the Stock to be issued and sold by the
Company pursuant to the Common Stock Offering have been duly and validly
authorized and, when issued and delivered against payment therefor as
6
provided herein, will be duly and validly issued, fully paid and
non-assessable.
(g) This Agreement has been duly authorized, executed and delivered
by the Company, SFEC, each of the Premier Subsidiaries and each of the
Premier Partnerships that is a party hereto, and, has been duly
authorized, executed and delivered by each of the Six Flags Subsidiaries
that is a party hereto.
(h) The execution, delivery and performance of this Agreement, the
Indenture and the Escrow 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
qualifications as may be required under the Exchange Act and applicable
state and foreign securities laws in connection with the purchase and
distribution of the Notes by the Underwriters are obtained, any statute or
any order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any of the Subsidiaries or any of
their properties or assets except, in each case, breaches, violations or
defaults which, in the aggregate, are not reasonably likely to have a
Material Adverse Effect; and except for the registration of the Notes
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state and foreign securities laws in connection with the
purchase and distribution of the Notes by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the execution,
delivery and performance of this Agreement, the Indenture or the Escrow
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
7
understandings between the Company, SFEC and any person granting such
person the right to require the Company and SFEC to file a registration
statement under the Securities Act with respect to any securities of the
Company and SFEC owned or to be owned by such person or to require the
Company and SFEC 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 and SFEC under the Securities Act.
(j) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus,
including any sales pursuant to Rule 144A under, or Regulations D or S of,
the Securities Act, other than (i) 121,671 shares issued pursuant to the
Company's acquisition of all of the membership interests of KKI, LLC on
November 7, 1997, (ii) 228,855 shares issued pursuant to the Company's
acquisition of at least 49% of the outstanding capital stock of Walibi on
March , 1998 (the "Walibi Acquisition"), (iii) an aggregate of 450,000
restricted shares issued to the Company's Chief Executive Officer, Chief
Operating Officer and Chief Financial Officer, (iv) 768 shares issued to
certain directors of the Company and (v) shares issued pursuant to the
Company's employee benefit plans, qualified stock options plans or other
employee compensation plans or pursuant to outstanding options, rights or
warrants, which, in each case, are disclosed in the Registration
Statement.
(k) Neither the Company nor any of the Subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Registration Statement, 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
Registration Statement, 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 the Subsidiaries, otherwise than as set
forth or contemplated in the Registration Statement.
8
(l) The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles in the United States (or, in
the case of Walibi, generally accepted accounting principles in Belgium)
applied on a consistent basis throughout the periods involved, and, in the
case of Walibi, have been reconciled to accounting principles generally
accepted in the United States to the extent required by the applicable
accounting requirements of the Securities Act and the Rules and
Regulations. The pro forma financial statements included in the Prospectus
have been prepared on a basis consistent with such historical financial
statements, except for the pro forma adjustments specified therein, and
comply in all material respects with Regulation S-X under the Securities
Act, and the pro forma adjustments have been properly applied to
historical amounts in the compilation of such pro forma financial
statements.
(m) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, Ernst & Young LLP, who have certified certain
financial statements of SFEC, Coopers & ▇▇▇▇▇▇▇, who have certified
certain financial statements of Walibi and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
who have certified certain financial statements of Kentucky Kingdom, Inc.
("Kentucky Kingdom") whose reports appear in the Registration Statement 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 Registration Statement 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.
9
(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 and
SFEC has reasonably concluded, based on their respective experience, is
adequate for the conduct of their respective businesses and the value of
their respective properties and as is customary for companies engaged in
similar businesses in similar industries.
(p) The Company and each of the Subsidiaries (in the case of Walibi,
to our knowledge) own or possess adequate rights to use all material
patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service ▇▇▇▇ 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.
10
(t) No relationship, direct or indirect, exists between or among the
Company or any Subsidiary on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any Subsidiary on
the other hand, which is required to be described or incorporated by
reference in the Prospectus which is not so described or incorporated by
reference.
(u) No labor disturbance by the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company or SFEC, is imminent
which might be reasonably expected to have a Material Adverse Effect.
(v) The Company and SFEC are 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 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 or SFEC have
not incurred and neither the Company nor SFEC expects, 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 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.
(x) The Company, SFEC and their subsidiaries have filed all federal,
and all material state and local income and franchise tax returns required
to be filed through the date hereof other than those filings being
contested in good faith. The Company and SFEC have paid all taxes of which
each of them has notice are due thereon, other than those being contested
in good faith and for which adequate reserves have been provided or
11
those currently payable 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 Registration Statement, neither the Company nor SFEC has
(i) issued or granted any securities or (ii) declared or paid any dividend
on its capital stock, and neither the Company nor any of its Subsidiaries
has (i) incurred any material liability or obligation, direct or
contingent, other than liabilities and obligations which were incurred in
the ordinary course of business or (ii) entered into any material
transaction not in the ordinary course of business other than the Six
Flags Acquisition.
(z) The Company and each of its Subsidiaries (in the case of Walibi,
to our knowledge) (i) make and keep accurate books and records and (ii)
maintain internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of their financial statements in conformity with
generally accepted accounting principles in the United States (or, in the
case of Walibi, generally accepted accounting principles in Belgium) and
to maintain accountability for their assets, (C) access to their assets is
permitted only in accordance with management's authorization and (D) the
recorded accountability for their assets is compared with existing assets
at reasonable intervals.
(aa) Neither the Company nor any of the Subsidiaries (in the case of
Walibi, to our knowledge) (i) is in violation of its charter or by-laws
(or its partnership agreement, as applicable), (ii) is in 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
12
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 or SFEC, any of their predecessors in interest)
at, upon or from any of the property now or previously owned or leased by
the Company or the Subsidiaries in violation of any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit or which
would require remedial action under any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably likely to
have, singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of the
Subsidiaries or 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,
13
federal and foreign laws or regulations with respect to environmental
protection.
(ad) Neither the Company nor any Subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
(ae) At the First Delivery Date, (i) the Six Flags Acquisition shall
be consummated in accordance with the terms of the Agreement and Plan of
Merger dated February 9, 1998 among the Company, Premier Operations,
Premier Parks Merger Corporation, PPStar I, Inc., SFEC and the Sellers
(the "Merger Agreement"), and without any material waiver of any of the
conditions precedent to any of the parties' obligations under the Merger
Agreement, (ii) each of the concurrent offerings by the Company of the
Stock, Company Senior Notes, Company Discount Notes and the PInES shall be
consummated, (iii) the offering by SFEC of the Notes shall be consummated
immediately following Offering of the Stock, (iv) each of the Credit
Facilities shall be in effect and available for borrowing and (v) no
default or event which, with notice or lapse of time or both, would
constitute such a default shall have occurred and be continuing, or shall
result from the transactions contemplated hereby to occur prior to,
concurrently with or immediately following the consummation of the
Offering, under (A) the Merger Agreement, (B) the indentures relating to
the Company Senior Notes, the Company Discount 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
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., ▇▇▇▇▇▇ N.V. and Westkoi N.V. (the "Walibi Agreement").
(af) The statements set forth in the Prospectus under the captions
"Business--Licenses", "Certain Transactions", "Description of Six Flags
Agreement", "Description of Other Company Indebtedness", and "Description
of Notes", insofar as they describe the terms of the agreements and
securities referred to therein, are accurate and fairly present the
information required to be shown.
(ag) The merger (the "Premier Merger") of the company formerly known
as Premier Parks Inc. with a wholly owned subsidiary of Premier Parks
Holdings
14
Corporation has been effected, and, in connection therewith, no
stockholder vote was required under applicable Delaware law and the
Premier Merger otherwise complies in all respects with the General
Corporation Law of the State of Delaware.
(ah) No stockholder vote is required under applicable Delaware law
in connection with the Six Flags Acquisition, and the Six Flags
Acquisition otherwise complies in all respects with the General
Corporation Law of the State of Delaware.
(ai) The Company has effected the Walibi Acquisition and has
commenced a tender offer (the "Walibi Tender Offer") for the remainder of
the outstanding capital stock of Walibi as described in the Prospectus.
(aj) the License Agreement, the Subordinated Indemnity Agreement,
the Intercompany Services Agreement and the Tax Sharing Agreement shall
have been entered into by the parties thereto with the provisions
described in the Prospectus.
(ak) The Company and SFEC have full power and authority to enter
into the Indenture; the Indenture has been duly authorized by the Company
and SFEC; and the Indenture will have been duly executed and delivered by
the Company and SFEC and, assuming due authorization, execution and
delivery of the Indenture by the Trustee, the Indenture will constitute
valid and legally binding obligations of the Company and SFEC, enforceable
in accordance with its terms, except that the enforcement thereof may be
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether considered in a
proceeding in equity or at law).
(al) SFEC has full power and authority to offer and sell the Notes;
the Notes have been duly authorized by SFEC; and when the Notes are
delivered and paid for pursuant to this Agreement on the First Delivery
Date; such Notes will have been duly executed, authenticated, issued and
delivered (assuming due authentication of the Notes by the Trustee) and,
assuming due authentication of the Notes by the Trustee, such Notes will
constitute valid and legally binding obligations of SFEC, entitled to the
benefits of the Indenture and enforceable in accordance with its terms,
except that the enforcement thereof may be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general
15
equitable principles (whether considered in a proceeding in equity or at
law).
(am) The SFEC has full power and authority to enter into the Escrow
Agreement; the Escrow Agreement has been duly authorized by SFEC; and when
duly executed and delivered by SFEC (assuming due authorization, execution
and delivery by the Trustee), will be valid and legally binding
obligations of SFEC, enforceable against SFEC in accordance with its
terms, except that the enforcement thereof may be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in equity
or at law).
(an) The Indenture, the Escrow Agreement, the Guarantee and the
Notes conform in all material respects to the descriptions thereof
contained in the Prospectus.
(ao) Neither the Company nor any Subsidiary has taken, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
or SFEC in connection with the Offering.
(ap) The Indenture shall have been qualified under and will comply
in all material respects with the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act").
(aq) The Guarantee endorsed on the Notes has been duly authorized by
the Company, and, when the Notes are executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid
for by the Underwriters in accordance with this Agreement, the Guarantee
will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms and will be
entitled to the benefits of the Indenture, except that the enforcement
thereof may be subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
2. Purchase of the Notes by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, SFEC agrees to sell to the several Underwriters
and each of
16
the Underwriters, severally and not jointly, agrees to purchase from SFEC, (i)
the Notes at a purchase price of 100% of the principal amount thereof plus
accrued interest, if any, from March __, 1998, to the First Delivery Date, the
respective principal amounts of Notes set forth opposite that Underwriter's name
in Schedule 1 hereto.
3. Offering of Notes by the Underwriters.
Upon authorization by the Representatives of the release of the
Notes, the several Underwriters propose to offer the Notes for sale upon the
terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Notes. Delivery of and payment
for the Notes shall be made at the office of Cravath, Swaine & ▇▇▇▇▇, Worldwide
Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M., New York City time,
on the fifth full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the
Representatives and the Company. This date and time are sometimes referred to as
the "First Delivery Date." On the First Delivery Date, the Company or SFEC shall
deliver or cause to be delivered Notes in definitive form, registered in the
name of Cede & Co., nominee of The Depository Trust Company ("DTC"), or such
other names as the Underwriters may request upon at least two business days'
notice to SFEC (collectively, the "Global Notes") to the Representatives against
payment by the Company or SFEC of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence (except that the
Company or SFEC will not be responsible for any delay resulting from any action
or inaction of any Underwriter) and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligations of each
Underwriter hereunder. For the purpose of expediting the checking and packaging
of the Global Notes, the Company or SFEC shall make the certificates
representing the Global Notes available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to the First Delivery Date.
5. Further Agreements of the Company and SFEC. Each of the Company
and SFEC, jointly and not severally, 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
17
Act; to make no 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 Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Representatives
and to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, each amendment thereto
and any Rule 462(b) Registration Statement filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission, each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus and (iii) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Notes or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented
18
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 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 the Representatives,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus, any Prospectus pursuant to
Rule 424 of the Rules and Regulations or any Rule 462(b) Registration
Statement to furnish a copy thereof to the Representatives and counsel for
the Underwriters and obtain the consent of the Representatives to the
filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company and SFEC 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 and SFEC's security holders and to deliver to
the Representatives an earnings statement of the Company and SFEC and
their subsidiaries (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations (including, at
the option of the Company Rule 158);
(g) For so long as any of the Notes are outstanding, to deliver
without charge to the Underwriters and the Trustee, promptly upon their
becoming available, copies of (i) all reports or other publicly available
information that the Company or SFEC shall mail or otherwise make
available to its securities holders and (ii) all reports, financial
statements and proxy or information statements filed by
19
the Company or SFEC with the Commission or any national securities
exchange and such other publicly available information concerning the
Company or the Subsidiaries;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Notes for offering
and sale (or obtain an exemption from registration) under the securities
laws of such jurisdictions as the Representatives may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes; provided, however, that the
Company and SFEC shall not be required to qualify as a foreign corporation
or a dealer in securities or to execute a general consent to service of
process in any jurisdiction in any action other than one arising out of
the offering or sale of the Notes;
(i) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
otherwise transfer or dispose of, any debt securities of any of the Six
Flags Subsidiaries having a maturity of more than one year from the date
of issue of such securities, except with the prior written consent of
▇▇▇▇▇▇ Brothers Inc;
(j) To take such steps as shall be necessary to ensure that neither
the Company, SFEC nor any of their subsidiaries 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 ▇▇▇▇▇▇ 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
20
to purchase the SFTP Senior Subordinated Notes upon a change of control of
SFTP.
(n) In connection with the Offering, until the Representatives shall
have notified the Company and SFEC and the other Underwriters of the
completion of the resale of the Notes, none of the Company, SFEC nor any
of their affiliates has or will, either alone or with one or more other
persons, bid for or purchase for any account in which it or any of its
affiliates has a beneficial interest any Notes or attempt to induce any
person to purchase any Notes; and neither it nor any of its affiliates
will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Notes;
(o) To not take, directly or indirectly, any action which is
designed to stabilize or manipulate, or which constitutes or which might
reasonably be expected to cause or result in stabilization or
manipulation, of the price of any security of SFEC in connection with the
offering of the Notes;
(p) Upon the closing of the offering of the Notes, to deposit with
and pledge to the Trustee for the benefit of holders of the Notes $_______
which shall be used to purchase Government Securities (as defined in the
Escrow Agreement) in such amount as will be sufficient upon receipt of
scheduled interest and principal payments of such securities, in the
opinion of a nationally recognized firm of public accountants selected by
the Company, to provide for payment in full at maturity of the SFEC Zero
Coupon Senior Notes. SFEC will take all actions necessary to pledge,
assign and set over to the Trustee, for the benefit of holders of the
Notes, and irrevocably grant to the Trustee for the benefit of the holders
of the Notes a first priority security interest in all of its right, title
and interest in such Government Securities held by the Trustee or on its
behalf, in order to secure the respective obligations of SFEC as set forth
in the Escrow Agreement; and
(q) To use its best efforts to do and perform all things necessary
to perfect, to the extent permitted by law, a first priority security
interest in favor of the Trustee for the benefit of the holders of the
respective Notes, in the Escrow Account.
6. Expenses. The Company and SFEC agree to pay (a) the costs
incident to the authorization, issuance, sale and delivery of the Notes and any
taxes payable in that connection; (b) the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement and
any amendments and exhibits
21
thereto; (c) the costs of distributing the Registration Statement as originally
filed and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the Prospectus
and any amendment or supplement to the Prospectus or any document incorporated
by reference therein, all as provided in this Agreement; (d) the costs of
producing and distributing this Agreement, the Indenture, the Escrow Agreement,
the Notes and any other related documents in connection with the offering,
purchase, sale and delivery of the Notes; (e) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of sale of the Notes; (f) listing or other fees
incident to the inclusion of the Common Stock (including the Stock) for listing
on the New York Stock Exchange; (g) the fees and expenses, if applicable, of
qualifying the Notes under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(h) if one is required pursuant to the rules of the NASD, all fees and expenses
of a qualified independent underwriter; (i) the fees and expenses of the Trustee
including fees and disbursements of counsel) under the Escrow Agreement; (j) all
fees and expenses (including fees and expenses of counsel) of SFEC in connection
with approval of the Notes by DTC for "book-entry" transfer and (k) all other
costs and expenses incident to the performance of the obligations of the Company
or any of the Subsidiaries under this Agreement; provided that, except as
provided in this Section 6 and in Section 11, the Underwriters shall pay their
own costs and expenses, including the costs and expenses of their counsel, any
transfer taxes on the Notes which they may sell and the expenses of advertising
any offering of the Notes made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the First Delivery Date, of the representations and warranties of the
Company, Premier Operations, SFEC and SFTP contained herein, to the 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
22
the Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the First Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇, counsel for the Underwriters, is material or omits to state a
fact which, in the opinion of such counsel, is material and is required to
be stated therein or is necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indenture, the
Escrow Agreement, the Notes, the Registration Statement and the
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be reasonably satisfactory in all
material respects to counsel for the Underwriters, and the Company and
SFEC shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such matters.
(d) ▇▇▇▇ Marks & ▇▇▇▇▇ LLP shall have furnished to the
Representatives its written opinion, as counsel to the Company, addressed
to the Underwriters and dated the First Delivery Date, in form reasonably
satisfactory to the Representatives, to the effect that:
(i) The Company and each of the Premier Subsidiaries and each
of the Six Flags Subsidiaries have been duly incorporated and are
validly existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation; each of the Premier
Partnerships and each of the Six Flags Partnerships is validly
existing as a limited partnership in good standing under the laws of
its jurisdiction of formation; and the Company, the Premier
Subsidiaries, the Premier Partnerships, the Six Flags Subsidiaries
and the Six Flags Partnerships are each duly qualified to do
business and are in good standing as foreign corporations in each
jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification except where the failure to so qualify would not have
a Material Adverse Effect and have all corporate or partnership
power and authority necessary to own
23
or hold their respective properties and conduct the businesses in
which they are engaged as described in the Prospectus;
(ii) Each of the Company and SFEC has an authorized
capitalization as set forth in the Prospectus, and all of the issued
shares of capital stock of the Company now outstanding (including
the shares of Stock being delivered on the First Delivery Date) have
been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the
description thereof contained in the Prospectus; all of the shares
of Stock have been duly authorized and, when issued and delivered to
the Representatives for the account of each Underwriter against
payment therefor as provided herein and in the Registration
Statement, 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, 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 and
24
SFEC'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 or
SFEC prior to the First Delivery Date (other than the financial
statements and related schedules therein and other financial or
statistical data included therein, as to which such counsel need
express no opinion) comply as to form in all material respects with
the requirements of the Securities Act and the Rules and
Regulations; and the documents incorporated by reference in the
Prospectus (other than the financial statements and related
schedules therein and other financial or statistical data included
therein, as to which 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
25
the Securities Act or by the Rules and Regulations which have not
been described or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company and each of the Subsidiaries that is a
party hereto;
(ix) The issue and sale of the Notes being delivered on the
First Delivery Date by SFEC (including, without limitation, the
Guarantee) and the compliance by the Company and each of the
Subsidiaries that is a party hereto with all of the provisions of
this Agreement, the Escrow Agreement and the Indenture and the
consummation of the transactions contemplated hereby and by the Six
Flags Acquisition (including the offerings of the Stock, the Company
Senior Notes and Company Discount Notes and the entering into of the
Six Flags Credit Facility and any borrowing thereunder in connection
with the Six Flags Acquisition) will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is a party
or by which the Company or any of the Subsidiaries is bound or to
which any of the property or assets of the Company or any of the
Subsidiaries is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws or other
constitutive documents of the Company or any of the Subsidiaries or,
assuming that all consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Notes by the Underwriters are
obtained, any Federal or New York State statute, the General
Corporation Law of the State of Delaware, or any order, rule or
regulation known to such counsel of any court or governmental agency
or body having jurisdiction over the Company or any of the
Subsidiaries or any of their properties or assets; and, except for
the registration of the Notes under the Securities Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Notes by the Underwriters,
26
no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the Indenture or the Escrow 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 or SFEC have rights to require the Company
or SFEC to include such securities with the Notes registered
pursuant to the Registration Statement.
(xi) The Company and SFEC have full power and authority to
enter into the Indenture; the Indenture has been duly authorized,
executed and delivered by the Company and SFEC and, assuming due
authorization, execution and delivery of the Indenture by the
Trustee, the Indenture constitutes valid and legally binding
obligations of the Company and SFEC, enforceable in accordance with
its terms, except that the enforcement thereof may be subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
(xii) SFEC has full power and authority to offer and sell the
Notes; the Notes have been duly authorized, executed, authenticated,
issued and delivered (assuming due authentication of the Notes by
the Trustee) and, assuming due authentication of the Notes by the
Trustee, such Notes constitute valid and legally binding obligations
of the Company and SFEC, entitled to the benefits of the Indenture
and enforceable in accordance with their terms, except that the
enforcement thereof may be subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
(xiii) SFEC has full power and authority to enter into the
Escrow Agreement; the Escrow Agreement has been duly authorized,
executed and delivered by SFEC (assuming due authorization,
execution and delivery by the Trustee), and is a valid and legally
binding obligation of SFEC,
27
enforceable against SFEC in accordance with its terms, except that
the enforcement thereof may be subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and
general equitable principles (whether considered in a proceeding in
equity or at law).
(xiv) The Indenture, the Escrow Agreement and the Notes
conform in all material respects to the descriptions thereof
contained in the Prospectus.
(xv) The Indenture has been qualified under and comply in all
material respects with the Trust Indenture Act.
(xvi) The Guarantee endorsed on the Notes has been duly
authorized by the Company, and, when the Notes are executed and
authenticated in accordance with the provisions of the Indenture and
delivered to and paid for by the Underwriters in accordance with
this Agreement, the Guarantee will constitute the valid and binding
obligation of the Company enforceable against the Company in
accordance with its terms and will be entitled to the benefits of
the Indenture, except that the enforcement thereof may be subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law).
[Perfection opinions relating to the
Escrow Accounts to come]
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and that such counsel is not admitted in any
state other than New York; and, in respect of matters of fact, may rely
upon certificates of officers of the Company or the Subsidiaries, provided
that such counsel shall state that it believes that both the Underwriters
and it are justified in relying upon such certificates. Such counsel shall
also have furnished to the Representatives a written statement, addressed
to the Underwriters and dated the First Delivery Date, in form
satisfactory to the Representatives, to the effect that (x) such counsel
has acted as counsel to the Company on a regular basis
28
(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 ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP pursuant to
Section 7(e) hereto with respect to the information covered by such
opinion and statement. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does not assume
any responsibility for the accuracy or fairness with respect to the
information required to be shown under the Securities Act and the Rules
and Regulations of the statements contained in the Registration Statement
or the Prospectus except for the statements made in the Prospectus under
the captions "Prospectus Summary--Other Recent Developments--Walibi",
"Certain Transactions", "Description of Other Company Indebtedness" and
"Description of Notes", insofar as such statements describe the terms of
the Walibi Acquisition and Walibi Tender Offer, the documents or
agreements referred to therein, the Notes, the Stock, the Seller
Convertible Redeemable Preferred Stock, the Company's other debt
instruments or other securities,
29
or the registration rights referred to therein and concern legal matters.
(e) ▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP shall have furnished to the
Representatives its written opinion, as special counsel to the Company,
addressed to the Underwriters and dated the First Delivery Date, in form
reasonably satisfactory to the Representatives, as to certain matters set
forth in Section 7(d) and to the effect that the statements set forth in
the Prospectus under the captions "Business--Licenses" and "Description of
Six Flags Agreement", insofar as such statements describe the terms of the
documents or agreements referred to therein, are accurate, complete and
fair.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law of
the State of Delaware and, in respect of matters of fact, may rely upon
certificates of officers of the Company or the Subsidiaries, provided that such
counsel shall state that it believes that both the Underwriters and it are
justified in relying upon such certificates. Such counsel shall also have
furnished to the Representatives a written statement, addressed to the
Underwriters and dated the First Delivery Date, in form satisfactory to the
Representatives, to the effect that (x) such counsel has acted as counsel to the
Company in connection with the Walibi Acquisition, the Walibi Tender Offer and
the Six Flags Acquisition and has reviewed the information (the "Walibi and Six
Flags Information") in the Registration Statement relating to the Walibi
Acquisition, the Walibi Tender Offer, the Six Flags Acquisition and the business
and operations of Walibi and its subsidiaries and SFEC and its subsidiaries and
(y) based on the foregoing, no facts have come to the attention of such counsel
which lead it to believe that (I) the Registration Statement (other than the
financial statements and other financial and statistical data contained therein,
as to which such counsel need express no belief), as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus (other than the financial
statements and other financial and statistical data contained therein, as to
which such counsel need express no belief) contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading or (II) any documents incorporated by
reference in the Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which such counsel need
express no belief) when they were filed
30
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) ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger shall have furnished to the
Representatives its written opinion, as special Delaware counsel to the
Company, addressed to the Underwriters and dated such Delivery Date, in
form reasonably satisfactory to the Representatives, to the effect that,
in connection with the Premier Merger, no shareholder vote was required
under applicable Delaware law and, in connection with the Six Flags
Acquisition, no shareholder vote is required under applicable Delaware
law, and that the Premier Merger and the Six Flags Acquisition otherwise
comply in all respects with applicable Delaware law.
(g) The Representatives shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions and such statement
or statements, dated the First Delivery Date, with respect to the issuance
and sale of the Notes, the Registration Statement, the Prospectus and
other related matters as the Representatives may reasonably require, and
the Company and the Subsidiaries shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(h) At the time of execution of this Agreement, the Representatives
shall have received from (I) KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent public accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof (or, with respect to
matters involving changes or developments since the respective dates as of
which specified financial information is given in the Prospectus, as of a
date not more than five days prior to the date hereof), the conclusions
and findings of such firm with respect to the financial information and
other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings, except for
the financial information and other matters covered in the letters from
Ernst & Young LLP, Coopers & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
described
31
immediately hereinafter; (II) Ernst & Young LLP a letter, in form and
substance satisfactory to the Representatives, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent 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 &
▇▇▇▇▇▇▇ a letter, in form and substance satisfactory to the
Representatives, addressed to the Underwriters and dated the date hereof
(i) confirming that they are independent accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation
S-X of the Commission and (ii) stating, as of the date hereof, the
conclusions and findings of such firm with respect to certain financial
information and other matters relating to Walibi and its subsidiaries, as
have been previously agreed to by such firm and the Representatives; and
(IV) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ a letter, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent accountants
within the meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of the
date hereof, the conclusions and findings of such firm with respect to
certain financial information and other matters relating to Kentucky
Kingdom, as have been previously agreed to by such firm and the
Representatives.
(i) With respect to the letters of KPMG Peat Marwick LLP, Ernst &
Young LLP, Coopers & ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ referred to
in the preceding paragraph and delivered to the Representatives
concurrently with the execution of this Agreement (the "initial letters"),
the Company shall have furnished to the Representatives a letter (the
"bring-down letters") of each of such accountants, addressed to the
Underwriters and dated the First Delivery Date (i) confirming that they
are independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-
32
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
letter and (iii) confirming in all material respects the conclusions and
findings set forth in the initial letter.
(j) The Company and SFEC shall have furnished to the Representatives
a certificate, dated the First Delivery Date, of its Chairman of the
Board, its President or a Vice President and its chief financial officer
stating that:
(i) The representations, warranties and agreements of the
Company and each of Premier Operations, SFEC and SFTP in Section 1
are true and correct as of the First Delivery Date; the Company and
each of the Subsidiaries that is a party hereto have complied with
all their agreements contained herein; and the conditions set forth
in Sections 7(a) and 7(k) have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective
Date, the Registration Statement and Prospectus did not include any
untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) since the Effective Date
no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
(k) Since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus there shall not
have been any change in the capital stock (or partners' equity, as
applicable) other than the Premier Merger or long-term debt of the Company
or any of the Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, stockholders' equity (or partners' equity, as
applicable) or results of operations of the Company and its subsidiaries,
otherwise, in each case, than as set forth or contemplated in the
Prospectus, the effect of which, in any such case, is, in the judgment of
the
33
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 Notes being
delivered on the First Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement (i)
no downgrading shall have occurred in the rating accorded the Company's or
SFEC'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 or
SFEC'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 or SFEC on any exchange or in the over-the-counter market, shall
have been suspended or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the Notes
being delivered on the First Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(n) The Six Flags Acquisition shall have been or shall be
consummated concurrently with the Offering and without any material waiver
of any of the conditions precedent to any of the parties' obligations
under the Merger Agreement.
34
(o) Each of the offerings by the Company of the Stock and the PInES
shall have been or shall be consummated concurrently with the Offering.
(p) Each of the Premier Credit Facility and the Six Flags Credit
Facility shall be in effect and available for borrowing.
(q) 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 SFEC, (iii) the credit
agreement relating to either the Premier Credit Facility or the Six Flags
Credit Facility or (iv) the Walibi Agreement.
(r) The Premier Merger shall have been consummated.
(s) 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.
(t) An authorized officer shall have executed this Agreement on
behalf of each of the Six Flags Subsidiaries.
(u) The Company and the Trustee shall have entered into the
Indenture and the Escrow Agreement and the Underwriters shall have
received counterparts, conformed as executed, thereof and the Notes shall
have been duly executed and delivered by the Company and authenticated by
the Trustee.
(v) After the First Delivery Date, no lien will exist upon the
Escrow Account (and no right or option to acquire the same will exist in
favor of any other person or entity), except for the pledge and security
interest in favor of the Trustee to be created or provided for in the
Escrow Agreement, which pledge and security interest constitutes a first
priority perfected pledge and security interest in and to the Escrow
Account.
35
(w) The Underwriters shall have received an opinion of a nationally
recognized firm of public accountants selected by the Company, which
provides that the amount of proceeds deposited with the Trustee pursuant
to the Senior Note Escrow Agreement is of an amount that will be
sufficient upon receipt of scheduled interest and principal payments of
Government Securities purchased thereunder to defease the SFEC Zero Coupon
Senior Notes.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and scope reasonably satisfactory to
counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company and the Subsidiaries that are parties hereto,
jointly and severally, shall indemnify and hold harmless each Underwriter
(including any Underwriter in its role as qualified independent underwriter
pursuant to the rules of the NASD), its officers and employees and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Notes), to which
that Underwriter, officer, employee or controlling person may become subject,
under the Securities Act or otherwise, insofar as such loss, claim, damage,
liability or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any Preliminary
Prospectus, the Registration Statement or the Prospectus or in any amendment or
supplement thereto or (B) in any blue sky application or other document prepared
or executed by the Company (or based upon any written information furnished by
the Company) specifically for the purpose of qualifying any or all of the Notes
under the securities laws of any jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Notes or the Offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (provided that the Company and the
36
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 Underwriter through its gross negligence or willful misconduct), and
shall reimburse each Underwriter and each such officer, employee or controlling
person promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter, officer, employee or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company and the Subsidiaries that are parties hereto shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, or in any Blue Sky Application, in reliance upon and in
conformity with written information concerning any Underwriter furnished to the
Company through the Representatives by or on behalf of any Underwriter
specifically for inclusion therein; and provided further that with respect to
any such untrue statement or omission made in the Preliminary Prospectus, the
indemnity agreement contained in this Section 8(a) shall not enure to the
benefit of the Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased the Notes concerned if, to the extent
that such sale was an initial sale by such Underwriter and any such loss, claim,
damage or liability of such Underwriter is a result of the fact that both (A) a
copy of the Prospectus was not sent or given to such person at or prior to the
written confirmation of the sale of such Notes to such person, and (B) the
untrue statement or omission in the Preliminary Prospectus was corrected in the
Prospectus unless, in either case, such failure to deliver the Prospectus was a
result of noncompliance by the Company or SFEC with Section 5(c). The foregoing
indemnity agreement is in addition to any liability which the Company or any of
the Subsidiaries that are parties hereto may otherwise have to any Underwriter
or to any officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company and the Subsidiaries that are parties hereto, each of
their respective officers and employees, each of their respective directors, and
each person, if any, who controls the Company or any Subsidiary that is a party
hereto within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any Subsidiary that
37
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 Underwriter furnished to the Company or SFEC
through the Representatives by or on behalf of that Underwriter specifically for
inclusion therein, and shall reimburse the Company, any such Subsidiary and any
such director, officer or controlling person for any legal or other expenses
reasonably incurred by the Company, any such Subsidiary or any such director,
officer or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred. The foregoing indemnity agreement is in addition to
any liability which any Underwriter may otherwise have to the Company, any such
Subsidiary, or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the
38
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
Underwriters and their respective officers, employees and controlling persons
who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company and the
Subsidiaries that are parties hereto under this Section 8 if, in the reasonable
judgment of the Representatives, it is advisable for the Representatives and
those Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the reasonable fees and
expenses of such separate counsel shall be paid, jointly and severally, by the
Company and the Subsidiaries that are parties hereto. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the
39
Subsidiaries that are parties hereto on the one hand and the Underwriters on the
other from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Subsidiaries that are
parties hereto on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the
Subsidiaries that are parties hereto on the one hand and the Underwriters on the
other with respect to such offering shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Notes purchased under this
Agreement (before deducting expenses) received by SFEC on the one hand, and the
total underwriting discounts and commissions received by the Underwriters with
respect to the shares of the Notes purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the shares of the
Notes under this Agreement, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or SFEC or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. For purposes of the preceding two sentences, the net
proceeds deemed to be received by the SFEC shall be deemed to be also for the
benefit of Company and the Subsidiaries that are parties hereto and information
supplied by the Company or SFEC shall also be deemed to have been supplied by
the Subsidiaries that are parties hereto. The Company, the Subsidiaries that are
parties hereto and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section shall
be deemed to include, for purposes of this Section 8(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Notes
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay
40
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
Underwriters' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The Underwriters severally confirm and the Company and the
Subsidiaries that are parties hereto acknowledge that the statements with
respect to the public offering of the Notes by the Underwriters set forth in the
first and last paragraphs on the cover page of, the legend concerning
stabilization on the fourth page of and statements under the caption
"Underwriting" including but not limited to the concession and reallowance
figures, the Prospectus constitute the only information concerning such
Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Notes which the
defaulting Underwriter agreed but failed to purchase on the First Delivery Date
in the respective proportions which the aggregate principal amount of Notes set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total aggregate principal amount of Notes set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Notes on the First Delivery Date if the total
aggregate principal amount of Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total aggregate principal amount of Notes to be purchased on the First Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the aggregate principal amount of Notes which it
agreed to purchase on the First Delivery Date pursuant to the terms of Section
2. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Notes to be purchased
on the First Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Representatives do not elect to purchase
41
the shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase on the First Delivery Date, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
that the Company will continue to be liable for the payment of expenses to the
extent set forth in Section 6. As used in this Agreement, the term "Underwriter"
includes, for all purposes of this Agreement unless the context requires
otherwise, any party not listed in Schedule 1 hereto who, pursuant to this
Section 9, purchases Notes which a defaulting Underwriter agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Notes of a defaulting
or withdrawing Underwriter, either the Representatives or the Company may
postpone the Delivery Date for up to seven full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company and SFEC prior to delivery of and payment for the Notes if, prior to
that time, any of the events described in Sections 7(k), 7(l) or 7(m) shall have
occurred or if the Underwriters shall decline to purchase the Notes for any
reason permitted under this Agreement.
11. Reimbursement of Underwriters' Expenses. If SFEC shall fail to
tender the Notes for delivery to the Underwriters by reason of any failure,
refusal or inability on the part of the Company to perform any agreement on its
part to be performed, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by the Company or SFEC 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 and SFEC will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including fees and disbursements of counsel)
incurred by the Underwriters in connection with this Agreement and the proposed
purchase of the Notes, and promptly following demand the Company shall pay the
full amount thereof to the Representatives. If this Agreement is terminated
pursuant to Section 9 by reason of the default of one or more Underwriters, the
Company shall not be obligated to reimburse any defaulting Underwriter on
account of those expenses.
42
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any notice
pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to the Company or any of the Subsidiaries, shall be delivered
or sent by mail, telex or facsimile transmission to ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Fax:
▇▇▇-▇▇▇-▇▇▇▇);
provided, however, that any notice to a Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc. on behalf of the
Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, the
Subsidiaries that are parties hereto and their respective successors. This
Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (A) the representations, warranties, indemnities and
agreements of the Company and the applicable Subsidiaries contained in this
Agreement shall also be deemed to be for the benefit of the officers and
employees of each Underwriter and the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and (B) the
indemnity agreement of the Underwriters contained in Section 8(b) of this
Agreement shall be deemed to be for the benefit of directors of the Company and
SFEC, officers of the Company and SFEC who have signed the Registration
Statement and any person controlling the Company and SFEC 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.
43
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the applicable Subsidiaries and the
Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Notes and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
15. Definition of the Terms "Business Day", "Premier Subsidiary",
"Premier Partnership", "Six Flags Subsidiary", "Six Flags Partnership",
"Subsidiary" and "Co-Venture Parks Agreements". For purposes of this Agreement,
(a) "business day" means any day on which the New York Stock Exchange, Inc. is
open for trading, (b) "Premier Subsidiary" means each of Premier Operations,
Walibi, Funtime Parks, Inc., an Ohio corporation, Funtime, Inc., an Ohio
corporation, Wyandot Lake, Inc., an Ohio corporation, Darien Lake Theme Park and
Camping Resort, Inc., a New York corporation, Tierco Maryland, Inc., a Delaware
corporation, Tierco Water Park, Inc., an Oklahoma corporation, Frontier City
Properties, Inc., an Oklahoma corporation, Stuart Amusement Company, a
Massachusetts corporation, Premier Waterworld Concord Inc., a California
corporation, Premier Waterworld Sacramento Inc., a California corporation,
Premier Parks of Colorado Inc., a Colorado corporation, Great Escape Holding
Inc., a New York corporation, Great Escape LLC, a New York limited liability
company, Great Escape Theme Park LLC, a New York limited liability company,
Riverside Park Enterprises, Inc., a Massachusetts corporation, Riverside Park
Food Services, Inc., a Massachusetts corporation, KKI, LLC, a Delaware limited
liability company, Park Management Corp., a California corporation, Indiana
Parks, Inc., an Indiana corporation, Aurora Campground, Inc., an Ohio
corporation, Ohio Campgrounds Inc., an Ohio corporation and Premier
International Holdings, Inc., a Delaware corporation and [other Premier entities
held in corporate form and as limited liability companies], (c) "Premier
Partnership" means each of Frontier City Partners, Limited Partnership, an
Oklahoma limited partnership, Elitch Gardens, L.P., a Colorado limited
partnership and [other Premier entities held as limited partnerships], (d) "Six
Flags Subsidiary" means each of SFEC, SFTP and [other Six Flags entities held in
corporate form or as limited liability companies], (e) "Six Flags Partnership"
means each of Fiesta Partnership, the Georgia Co-Venture Partnership, the Texas
Co-Venture Partnership and [other Six Flags entities held as limited
partnerships], (f) "Subsidiary" means each of the Premier Subsidiaries, the
Premier Partnerships, the Six Flags Subsidiaries and the Six Flags Partnerships;
and "Co-Venture Parks Agreements" means (i) the Overall Agreement, dated as of
February 15, 1997, among Six Flags Fund, Ltd. (L.P.), ▇▇▇▇▇▇ Family Trust, SFG,
44
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 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.
19. Effect of SFEC Execution. For all purposes hereunder, the
representations, warranties and agreements of SFEC hereunder shall only take
effect and be enforceable on the First Delivery Date, and shall do so as if
agreed to and entered into as of the date hereof.
45
If the foregoing correctly sets forth the agreement among the
Company, the Subsidiaries that are parties hereto and the Underwriters, please
indicate your acceptance in the space provided for that purpose below.
Very truly yours,
Premier Parks Inc.
By ____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the
Board and Chief
Executive Officer
The Premier Subsidiaries (as listed
in Section 15 but not
including Walibi)
By ____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the
Board and Chief
Executive Officer
The Six Flags Subsidiaries (as
listed in Section 15)
By ____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman of the
Board and Chief
Executive Officer
46
Accepted:
▇▇▇▇▇▇ Brothers Inc.
Salomon Brothers Inc
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ▇▇▇▇▇▇ Brothers Inc.
By _______________________________
Authorized Representative
SCHEDULE 1
Aggregate
Principal
Amount of
Underwriters Notes
------------ ---------
▇▇▇▇▇▇ Brothers Inc...............................
Salomon Brothers Inc..............................
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC.............
---------
Total.........................................
=========
