Exhibit 1(d)
5,000,000 PInES(-SM-)
PREMIER PARKS INC.
Premium Income Equity Securities ("PInES(-SM-)")
UNDERWRITING AGREEMENT
, 1998
Xxxxxx Brothers Inc.
Xxxxx Xxxxxx Inc.
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Premier Parks Inc., a Delaware corporation (the "Company"),
proposes to sell to the Underwriters named in Schedule 1 hereto (the
"Underwriters"), and the Underwriters propose, severally and not
jointly, to purchase 5,000,000 PInES (the "Firm Securities") consisting
of depositary shares (the "PInES"), each representing one-five
hundredth of a share of the Company's % mandatorily convertible
preferred stock (the "Mandatorily Convertible Preferred Stock"). In
addition, the Company proposes to grant to the Underwriters an option
to purchase up to an additional 750,000 PInES on the terms and for the
purposes set forth in Section 2 (the "Option Securities"). The Firm
Securities and the Option Securities, if purchased, are hereinafter
collectively called the "Securities". This is to confirm the agreement
concerning the purchase of the Securities from the Company by the
Underwriters.
A form of prospectus relating to the Securities is to be used
in connection with the offering (the "Offering") of the Securities.
It is also understood by all parties that the Company is
undertaking the Offering in connection with its acquisition (the "Six
Flags Acquisition") from the current stockholders (the "Sellers") of
all of the capital stock of Six Flags Entertainment Corporation
("SFEC"), and that, in
connection with the Six Flags Acquisition, the Company is concurrently
offering $ million aggregate principal amount at maturity of its
senior discount notes due 2008 (the "Company Senior Discount Notes")
with estimated gross proceeds of $250 million, $280 million aggregate
principal amount of its senior notes due 2006 (the "Company Senior
Notes") and, with the over-allotment option, 14,950,000 shares (the
"Concurrent Common Stock") of the Company's Common Stock, par value
$.05 per share (the "Common Stock") with estimated gross proceeds of
$ million. In addition, it is understood by all parties that Six
Flags Theme Parks Inc. ("SFTP") is concurrently entering into a new
$472 million senior secured credit facility (the "Six Flags Credit
Facility") under a credit agreement dated the date of this Agreement
among it, certain of the Six Flags Subsidiaries (as defined in Section
15) and Xxxxxx Commercial Paper, Inc., and Premier Operations Inc.
("Premier Operations") has entered into a $300 million senior secured
credit facility (the "Premier Credit Facility" and, together with the
Six Flags Credit Facility, the "Credit Facilities") under a credit
agreement among the Company, certain of the Premier Subsidiaries and
Premier Partnerships (each as defined in Section 15) and Xxxxxx
Commercial Paper, Inc. It is further understood by all parties that,
immediately following the Offering, SFEC will offer $170 million
aggregate principal amount of senior notes due 2006 (the "New SFEC
Notes"), and that, concurrently with the Offering, the Company may
issue depositary shares (the "Seller Depositary Shares") representing
interests in up to $200 million of the Company's convertible redeemable
preferred stock (the "Seller Convertible Redeemable Preferred Stock")
to the Sellers as part of the consideration for the Six Flags
Acquisition.
1. Representations, Warranties and Agreements of the Company
and Certain of the Subsidiaries. The Company and Premier Operations
and, as of the First Delivery Date (as hereinafter defined), SFEC and
SFTP represent, warrant and agree, jointly and severally, that:
(a) A registration statement on Form S-3 (file number
333-45859), and amendments thereto, with respect to the
Securities, the Mandatorily Convertible Preferred Stock and
the Common Stock, issuable upon conversion of the Mandatorily
Convertible Preferred Stock or as dividends on the Mandatorily
Convertible Preferred Stock, has (i) been prepared by the
Company in conformity in all material respects with the
requirements of the United
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States Securities Act of 1933 (the "Securities Act") and the
rules and regulations (the "Rules and Regulations") of the
United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission
under the Securities Act and (iii) become effective under the
Securities Act. Copies of such registration statement and
amendments thereto have been delivered by the Company to you
as the Underwriters. Upon your written request, but not
without your agreement, the Company will also file a Rule
462(b) Registration Statement in accordance with Rule 462(b).
As used in this Agreement, "Effective Time" means the date and
the time as of which such registration statement, the most
recent post-effective amendment thereto, if any, or any Rule
462(b) Registration Statement became or becomes effective;
"Effective Date" 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 Securities filed with the Commission by the
Company with the consent of the Underwriters 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 Securities filed with the
Commission pursuant to Rule 424(b) of the Rules and
Regulations in accordance with Section 5(a) hereof and deemed
to be a part of the registration statement as of the Effective
Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations and, in the event any Rule 462(b) Registration
Statement becomes effective prior to the First Delivery Date,
also means such registration statement as so amended, unless
the context otherwise requires; "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to
paragraph (1) or (4) of Rule 424(b) of the Rules and
Regulations; and "Rule 462(b) Registration Statement" means
the registration statement and any amendments thereto filed
pursuant to Rule 462(b) of the Rules and Regulations relating
to the offering covered by the initial Registration Statement
(file number 333-45859). Reference made herein to any
Preliminary Prospectus or to the Prospectus shall be deemed to
refer to and include any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Securities
Act, as of
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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 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 by any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and the
rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(d) The Company, each of the Premier Subsidiaries
and, as of the First Delivery Date, each of the Six Flags
Subsidiaries have been or will be, as applicable, duly
incorporated and are or will be, as applicable, validly
existing as corporations in good standing under the laws of
their respective jurisdictions of incorporation; each of the
Premier Partnerships and, as of the First Delivery Date, each
of the Six Flags Partnerships (as defined in Section 15) is or
will be, as applicable, validly existing as a limited
partnership in good standing under the laws of their
respective jurisdictions of formation; the Company, each of
the Premier Subsidiaries and each of
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the Premier Partnerships and, as of the First Delivery Date,
each of the Six Flags Subsidiaries and each of the Six Flags
Partnerships are or will be, as applicable, duly qualified to
do business and are or will be, as applicable, in good
standing as foreign entities in each jurisdiction in which
their respective ownership or lease of property or the conduct
of their respective businesses requires or will require, as
applicable, such qualification, except where the failure to so
qualify would not have in the aggregate a material adverse
effect on the consolidated financial position, stockholders'
equity (or partners' equity, as applicable), results of
operations, business or prospects of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect")
and have or will have, as applicable, all corporate or
partnership power and authority, as the case may be, necessary
to own or hold their respective properties and to conduct the
businesses in which they are or will be, as applicable,
engaged; none of the subsidiaries (as defined in Rule 405 of
the Rules and Regulations) of the Company (other than the
Subsidiaries) is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations; and the
assets, liabilities and operations of such other subsidiaries
are immaterial to the assets, liabilities, operations and
prospects of the Company and the Subsidiaries taken as a
whole.
(e) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform in all material respects to the description thereof
contained in the Prospectus. All of the issued shares of
capital stock of each Premier Subsidiary (in the case of
Walibi, S.A. ("Walibi"), a Belgian corporation, to our
knowledge) have been, and all of the issued shares of capital
stock of each Six Flags Subsidiary, as of the First Delivery
Date, will be, duly and validly authorized and issued and are
or will be, as applicable, fully paid and non-assessable and,
except for the capital stock of Walibi that is subject to the
Walibi Tender Offer (as defined in Section 1(ai)), are or will
be, as applicable, owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims except for liens, encumbrances, equities or claims
arising under the Credit Facilities and the subordinated
indemnity agreement among the
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Company and certain of its affiliates, SFEC and certain of its
affiliates and Time Warner Inc. and certain of its affiliates
dated , 1998 (the "Subordinated Indemnity Agreement").
100% of the partnership interest in the Premier Partnerships
is held and, as of the First Delivery Date, 100% of the
partnership interest in the Six Flags Partnerships, except
for the 40% general partnership interest in San Antonio Theme
Park, L.P. ("Fiesta Partnership") held by Fiesta Texas Theme
Park, Ltd., the 99% limited partnership interest in Six Flags
Over Xxxxxxx XX, L.P. (the "Georgia Co-Venture Partnership")
indirectly held by investors in Six Flags Fund, Ltd. (L.P.),
of which approximately 75% are not affiliated with the
Company, and the 99% limited partnership interest in Texas
Flags, Ltd. (the "Texas Co- Venture Partnership") indirectly
held by investors in Six Flags Fund II, Ltd. (L.P.), of which
approximately % are not affiliated with the Company, will
be, as applicable, held directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims
except for liens, encumbrances, equities or claims under the
Credit Facilities and the Co-Venture Parks Agreements (as
defined in Section 15).
(f) The unissued shares of the Securities to be
issued and sold by the Company to the Underwriters hereunder
have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable. The
unissued shares of Mandatorily Convertible Preferred Stock to
be issued in exchange by the Company to the Depositary (as
defined herein) under the Deposit Agreement (as defined
herein) have been duly and validly authorized and, when issued
and exchanged for depositary receipts therefor as provided in
the Deposit Agreement, will be duly and validly issued, fully
paid and non-assessable. The shares of Common Stock, issuable
upon the conversion of the Mandatorily Convertible Preferred
Stock or as dividends on the Mandatorily Convertible Preferred
Stock, have been duly and validly authorized and reserved for
issuance upon such conversion or dividend, will be validly
issued, fully paid and non-assessable.
(g) This Agreement has been duly authorized, executed
and delivered by the Company, each of the Premier Subsidiaries
and each of the Premier Partnerships that is a party hereto or
thereto, and, as of the First
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Delivery Date, will be duly authorized, executed and delivered
by each of the Six Flags Subsidiaries that is a party hereto
or thereto. The Deposit Agreement relating to the Securities
(the "Deposit Agreement") has been duly authorized, executed
and delivered by the Company and the Depositary named therein
(the "Depositary").
(h) The execution, delivery and performance of this
Agreement and the Deposit Agreement by the Company and each of
the Subsidiaries that are parties hereto, 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
Securities by the Underwriters and the exchange of the
Mandatorily Convertible Preferred Stock for depositary
receipts by the Depositary 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
Securities and the Mandatorily Convertible Preferred Stock
under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state and
foreign securities laws in connection with the purchase and
distribution of the Securities by the Underwriters and the
exchange of the Mandatorily Convertible Preferred Stock for
depositary receipts by the Depositary, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required or, with
respect to the Six
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Flags Subsidiaries will be required, for the execution,
delivery and performance of this Agreement or the Deposit
Agreement by the Company or any of the Subsidiaries that are
parties hereto and the consummation of the transactions
contemplated hereby and thereby.
(i) Except as disclosed in the Prospectus and as to
those rights which have been duly and validly waived, there
are no contracts, agreements or understandings between the
Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company
to include such securities in the securities registered
pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement
filed by the Company under the Securities Act.
(j) The Company has not sold or issued any shares of
capital 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 the following Common Stock: (i) 121,671 shares issued
pursuant to the Company's acquisition of all of the membership
interests of KKI, LLC on November 7, 1997, (ii) 228,855 shares
issued pursuant to the Company's acquisition of at least 49%
of the outstanding capital stock of Walibi on March , 1998
(the "Walibi Acquisition"), (iii) an aggregate of 450,000
restricted shares issued to the Company's Chief Executive
Officer, Chief Operating Officer and Chief Financial Officer,
(iv) 768 shares issued to certain directors of the Company and
(v) shares issued pursuant to the Company's employee benefit
plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights
or warrants, which, in each case, are disclosed in the
Prospectus.
(k) Neither the Company nor any of the Subsidiaries
has sustained, since the date of the latest audited financial
statements included in the Prospectus, any loss or
interference with its business from fire, explosion, flood,
accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or
contemplated in the Prospectus,
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except losses or interferences which will not, in the
aggregate, have a Material Adverse Effect; and, since such
date, there has not been any change in the capital stock other
than in connection with the Premier Merger (as defined in
Section 1(ag)) or long-term debt of the Company or any of the
Subsidiaries or any material adverse change, or any
development involving a prospective material adverse change,
in or affecting the general affairs, management, financial
position, stockholders' equity (or partners' equity, as
applicable) or results of operations of the Company and its
Subsidiaries, otherwise than as set forth or contemplated in
the Prospectus.
(l) The historical financial statements (including the related
notes and supporting schedules) filed as part of the
Registration Statement or included in the Prospectus present
fairly the financial condition and results of operations of
the entities purported to be shown thereby at the dates and
for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles in
the United States (or, in the case of Walibi, generally
accepted accounting principles in Belgium) applied on a
consistent basis throughout the periods involved, and, in the
case of Walibi, have been reconciled to accounting principles
generally accepted in the United States to the extent required
by the applicable accounting requirements of the Securities
Act and the Rules and Regulations. The pro forma financial
statements included in the Prospectus have been prepared on a
basis consistent with such historical financial statements,
except for the pro forma adjustments specified therein, and
comply in all material respects with Regulation S-X under the
Securities Act, and the pro forma adjustments have been
properly applied to historical amounts in the compilation of
such pro forma financial statements.
(m) KPMG Peat Marwick LLP, who have certified certain
financial statements of the Company, Ernst & Young LLP, who
have certified certain financial statements of SFEC, Coopers &
Xxxxxxx, who have certified certain financial statements of
Walibi and Xxxxxxxxx Xxxxxxxx & Xxxxxxxx, who have certified
certain financial statements of Kentucky Kingdom, Inc.
("Kentucky Kingdom") whose reports appear in the Prospectus or
are incorporated by reference therein and who have each
delivered the respective initial letters referred to in
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Section 7(h) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(n) The Company and each of the Subsidiaries (in the
case of Walibi, to our knowledge) have good and marketable
title in fee simple to all real property and good and
marketable title to all personal property owned by them, in
each case free and clear of all liens, encumbrances and
defects except for such liens arising under the Credit
Facilities or contemplated in Section 1(e) hereof as are
described in the Prospectus or such as would not have a
Material Adverse Effect; and all real property and buildings
held under lease by the Company and the Subsidiaries are held
by them under valid, subsisting and enforceable leases, with
such exceptions as would not have a Material Adverse Effect.
(o) The Company and each of the Subsidiaries (in the
case of Walibi, to our knowledge) carry, or are covered by
insurance in such amounts and covering such risks (including
the risk of earthquakes) as the Company has reasonably
concluded, based on its experience, is adequate for the
conduct of their respective businesses and the value of their
respective properties and as is customary for companies
engaged in similar businesses in similar industries.
(p) The Company and each of the Subsidiaries (in the
case of Walibi, to our knowledge) own or possess adequate
rights to use all material patents, patent applications,
trademarks, service marks, trade names, trademark
registrations, service xxxx registrations, copyrights and
licenses necessary for the conduct of their respective
businesses as presently conducted and, with respect to the
Amended and Restated License Agreement among certain
affiliates of Warner Bros., SFTP and the Company dated
February 9, 1998 (the "License Agreement"), as contemplated by
the Prospectus, and have no reason to believe that the conduct
of their respective businesses will conflict with, and have
not received any notice of any claim of conflict with, any
such rights of others with such exceptions as would not have a
Material Adverse Effect.
(q) Except as otherwise disclosed in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of the
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Subsidiaries is a party or of which any property or assets of
the Company or any of the Subsidiaries is the subject which,
if determined adversely to the Company or any of the
Subsidiaries, might have a Material Adverse Effect or are
otherwise required to be disclosed in the Prospectus; and to
the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others.
(r) The conditions for use of Form S-3, as set forth
in the General Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which
are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act
or by the Rules and Regulations which have not been described
in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(t) No relationship, direct or indirect, exists
between or among the Company or any Subsidiary on the one
hand, and the directors, officers, stockholders, customers or
suppliers of the Company or any Subsidiary on the other hand,
which is required to be described or incorporated by reference
in the Prospectus which is not so described or incorporated by
reference.
(u) No labor disturbance by the employees of the
Company or any Subsidiary exists or, to the knowledge of the
Company, is imminent which might be reasonably expected to
have a Material Adverse Effect.
(v) The Company is and, as of the First Delivery
Date, SFEC will be in compliance in all material respects with
all presently and then applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder
("ERISA"); no "reportable event" (as defined in ERISA) has
occurred or, with respect to SFEC, as of the First Delivery
Date will have occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company or SFEC, as
applicable, would have any material liability; the Company has
not incurred and, as of the First Delivery Date, SFEC will not
have incurred and neither the Company expects nor SFEC, as of
the First Delivery Date, will expect to incur
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material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension
plan" for which the Company or SFEC, as applicable, would have
any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects
and nothing has occurred or, with respect to SFEC, as of the
First Delivery Date, will have occurred whether by action or
by failure to act, which might reasonably be expected to cause
the loss of such qualification.
(w) The Company and each of the Subsidiaries (in the
case of Walibi, to our knowledge) are in compliance in all
respects with (i) all presently applicable provisions of the
Occupational Safety and Health Act of 1970, as amended,
including all applicable regulations thereunder and (ii) all
presently applicable state and local laws and regulations
relating to the safety of its theme park and water park
operations, with such exceptions as would not have a Material
Adverse Effect.
(x) The Company has filed and, as of the First
Delivery Date, SFEC and its subsidiaries will have filed all
federal, and all material state and local income and franchise
tax returns required to be filed through the date hereof or
the First Delivery Date, as applicable, other than those
filings being contested in good faith. The Company has paid
and, as of the First Delivery Date, SFEC will have paid all
taxes of which it has notice or will have notice, as
applicable, are due thereon, other than those being contested
in good faith and for which adequate reserves have been
provided or will have been provided, as applicable, or those
currently payable or payable as of the First Delivery Date, as
applicable, without penalty or interest and no tax deficiency
has been determined adversely to the Company or any of the
Subsidiaries which has had, nor does the Company have any
knowledge of any tax deficiency which, if determined adversely
to the Company or any of the Subsidiaries, might be reasonably
expected to have, a Material Adverse Effect.
(y) Since the date as of which information is given
in the Prospectus through the date hereof, and except as may
otherwise be disclosed in the Prospectus,
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the Company has not (i) issued or granted any securities or
(ii) declared or paid any dividend on its capital stock, and
neither the Company nor any of its Subsidiaries has (i)
incurred any material liability or obligation, direct or
contingent, other than liabilities and obligations which were
incurred in the ordinary course of business or (ii) entered
into any material transaction not in the ordinary course of
business other than the Six Flags Acquisition.
(z) The Company and each of its Subsidiaries (in the
case of Walibi, to our knowledge) (i) make and keep accurate
books and records and (ii) maintain internal accounting
controls sufficient to provide reasonable assurance that (A)
transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to
permit preparation of their financial statements in conformity
with generally accepted accounting principles in the United
States (or, in the case of Walibi, generally accepted
accounting principles in Belgium) and to maintain
accountability for their assets, (C) access to their assets is
permitted only in accordance with management's authorization
and (D) the recorded accountability for their assets is
compared with existing assets at reasonable intervals.
(aa) Neither the Company nor any of the Subsidiaries
(in the case of Walibi, to our knowledge) (i) is in violation
of its charter or by-laws (or its partnership agreement, as
applicable), (ii) is in default in any material respect, and
no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in
any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which
it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in
any material respect of any material law, ordinance,
governmental rule, regulation or court decree to which it or
its property or assets may be subject or has failed to obtain
any material license, permit, certificate, franchise or other
governmental authorization or permit necessary to the
ownership of its property or to the conduct of its business.
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(ab) Neither the Company nor any of the Subsidiaries
(in the case of Walibi, to our knowledge), nor, to its
knowledge, any director, officer, agent, employee or other
person associated with or acting on behalf of the Company or
any of the Subsidiaries, has used any corporate or partnership
funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; made
any direct or indirect unlawful payment to any foreign or
domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate,
payoff, influence payment, kickback or other unlawful payment.
(ac) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment
of toxic wastes, medical wastes, hazardous wastes or hazardous
substances by the Company or any of the Subsidiaries (in the
case of Walibi, to our knowledge) (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or
from any of the property now or previously owned or leased by
the Company or the Subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or
permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action
which would not have, or could not be reasonably likely to
have, singularly or in the aggregate with all such violations
and remedial actions, a Material Adverse Effect; there has
been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or
into the environment surrounding such property of any toxic
wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or any of
the Subsidiaries or 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,
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federal and foreign laws or regulations with respect to
environmental protection.
(ad) Neither the Company nor any Subsidiary is an
"investment company" within the meaning of such term under the
Investment Company Act of 1940 and the rules and regulations
of the Commission thereunder.
(ae) At the First Delivery Date, (i) the Six Flags
Acquisition shall be consummated in accordance with the terms
of the Agreement and Plan of Merger dated February 9, 1998
among the Company, Premier Operations, Premier Parks Merger
Corporation, PPStar I, Inc., SFEC and the Sellers (the "Merger
Agreement"), and without any material waiver of any of the
conditions precedent to any of the parties' obligations under
the Merger Agreement, (ii) each of the concurrent offerings by
the Company of the Company Senior Discount Notes, the Company
Senior Notes and the Concurrent Common Stock shall be
consummated, (iii) the offering by SFEC of the New SFEC Notes
shall be consummated immediately following the Offering, (iv)
each of the Credit Facilities shall be in effect and available
for borrowing and (v) no default or event which, with notice
or lapse of time or both, would constitute such a default
shall have occurred and be continuing, or shall result from
the transactions contemplated hereby to occur prior to,
concurrently with or immediately following the consummation of
the Offering, under (A) the Merger Agreement, (B) the
indentures relating to any of the Company Senior Discount
Notes, the Company Senior Notes, Premier Operations' 12%
Senior Notes due 2003 (the "1995 Premier Notes"), Premier
Operations' 9 3/4% Senior Notes due 2007 (the "1997 Premier
Notes"), SFEC's Zero Coupon Notes due 1999 (the "SFEC Zero
Coupon Notes"), SFTP's Senior Subordinated Notes due 2005 (the
"SFTP Senior Subordinated Notes") and the New SFEC Notes, (C)
the credit agreements relating to either of the Credit
Facilities or (D) the Stock Purchase Agreement dated December
15, 1997 between Premier Operations (or a to be formed Belgian
corporation) and Centrag, S.A., Xxxxxx N.V. and Westkoi N.V.
(the "Walibi Agreement").
(af) The statements set forth in the Prospectus under
the captions "Business--Licenses", "Business-- Intercompany
Services Agreement", "Business--Tax Sharing Agreement",
"Description of Six Flags Agreement", "Description of
Indebtedness", "Description of
15
Securities", "Description of PInES" and "Description of
Depositary Arrangements", insofar as they describe the terms
of the agreements and securities referred to therein, are
accurate and fairly present the information required to be
shown.
(ag) The merger (the "Premier Merger") of the company
formerly known as Premier Parks Inc. with a wholly owned
subsidiary of Premier Parks Holdings Corporation has been
effected, and, in connection therewith, no stockholder vote
was required under applicable Delaware law and the Premier
Merger otherwise complies in all respects with the General
Corporation Law of the State of Delaware.
(ah) No stockholder vote is required under applicable
Delaware law in connection with the Six Flags Acquisition, and
the Six Flags Acquisition otherwise complies in all respects
with the General Corporation Law of the State of Delaware.
(ai) The Company has effected the Walibi Acquisition
and has commenced a tender offer (the "Walibi Tender Offer")
for the remainder of the outstanding capital stock of Walibi
as described in the Prospectus.
(aj) On or prior to the First Delivery Date, the
License Agreement, the Subordinated Indemnity Agreement, the
Intercompany Services Agreement and the Tax Sharing Agreement
shall have been entered into by the parties thereto with the
provisions described in the Prospectus.
2. Purchase of the Securities by the Underwriters. On the
basis of the representations and warranties contained in, and subject
to the terms and conditions of, this Agreement, the Company agrees to
sell 5,000,000 shares of the Firm Securities to the several
Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase the number of shares of the Firm Securities set
opposite that Underwriter's name in Schedule 1 hereto.
In addition, the Company grants to the Underwriters an option
to purchase up to 750,000 shares of Option Securities. Such option is
granted solely for the purpose of covering over-allotments in the sale
of Firm Securities and is exercisable as provided in Section 4 hereof.
Shares of Option Securities shall be purchased severally and not
jointly for the account of the Underwriters in proportion to the number
of
16
Firm Securities set opposite the name of such Underwriters in Schedule
1 hereto. The price of both the Firm Securities and any Option
Securities shall be $ per share.
The Company shall not be obligated to deliver any of the
Securities to be delivered on the First Delivery Date or the Second
Delivery Date (as hereinafter defined), as the case may be, except upon
payment for all the Securities to be purchased on such Delivery Date as
provided herein.
3. Offering of Securities by the Underwriters.
The several Underwriters propose to offer the Firm Securities
for sale upon the terms and conditions set forth in the Prospectus.
4. Delivery of and Payment for the Stock. Delivery of and
payment for the Firm Securities shall be made at the office of Cravath,
Swaine & Xxxxx, Worldwide Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000,
at 10:00 A.M., New York City time, on the fourth full business day
following the date of this Agreement or at such other date or place as
shall be determined by agreement between the Underwriters and the
Company. This date and time are sometimes referred to as the "First
Delivery Date." On the First Delivery Date, the Company shall deliver
or cause to be delivered certificates representing the Firm Securities
to the Underwriters for the account of each Underwriter against payment
to or upon the order of the Company of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence
(except that the Company will not be responsible for any delay
resulting from any action or inaction of any Underwriter) and delivery
at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. Upon
delivery, the Firm Securities shall be registered in such names and in
such denominations as the Underwriters shall request in writing not
less than two full business days prior to the First Delivery Date. For
the purpose of expediting the checking and packaging of the
certificates for the Firm Securities, the Company shall make the
certificates representing the Firm Securities available for inspection
by the Underwriters in New York, New York, not later than 2:00 P.M.,
New York City time, on the business day prior to the First Delivery
Date.
At any time on or before the thirtieth day after the date of
this Agreement, the option granted in Section 2
17
may be exercised by written notice being given to the Company by the
Underwriters. Such notice shall set forth the aggregate number of
shares of Option Securities as to which the option is being exercised,
the names in which the shares of Option Securities are to be
registered, the denominations in which the shares of Option Securities
are to be issued and the date and time, as determined by the
Underwriters, when the shares of Option Securities are to be delivered;
provided, however, that this date and time shall not be earlier than
the First Delivery Date nor earlier than the second business day after
the date on which the option shall have been exercised nor later than
the third business day after the date on which the option shall have
been exercised. The date and time the shares of Option Securities are
delivered are sometimes referred to as the "Second Delivery Date" and
the First Delivery Date and the Second Delivery Date are sometimes each
referred to as a "Delivery Date".
Delivery of and payment for the Option Securities shall be
made at the place specified in the first sentence of the first
paragraph of this Section 4 (or at such other place as shall be
determined by agreement between the Underwriters and the Company) at
10:00 A.M., New York City time, on the Second Delivery Date. On the
Second Delivery Date, the Company shall deliver or cause to be
delivered the certificates representing the Option Securities to the
Underwriters for the account of each Underwriter against payment to or
upon the order of the Company of the purchase price by wire transfer in
immediately available funds. Time shall be of the essence (except that
the Company will not be responsible for any delay resulting from any
action or inaction of any Underwriter), and delivery at the time and
place specified pursuant to this Agreement is a further condition of
the obligations of each Underwriter hereunder. Upon delivery, the
Option Securities shall be registered in such names and in such
denominations as the Underwriters shall request in the aforesaid
written notice. For the purpose of expediting the checking and
packaging of the certificates for the Option Securities, the Company
shall make the certificates representing the Option Securities
available for inspection by the Underwriters in New York, New York, not
later than 2:00 P.M., New York City time, on the business day prior to
the Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
18
(a) To prepare the Prospectus in a form approved by
the Underwriters and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than Commission's
close of business on the second business day following the
execution and delivery of this Agreement or, if applicable,
such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any
supplement to the Registration Statement or to the Prospectus
and to file no Rule 462(b) Registration Statement except as
permitted herein; to advise the Underwriters, 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 Underwriters 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 Underwriters of such filing; to advise the
Underwriters, 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 Securities 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
Underwriters 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 Underwriters such
number of the following documents as the Underwriters shall
reasonably request: (i) conformed copies of the Registration
Statement as originally filed with the
19
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 Securities or any other
securities relating thereto and if at such time any events
shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made when
such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply
with the Securities Act or the Exchange Act, to notify the
Underwriters 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
Underwriters may from time to time reasonably request of an
amended or supplemented Prospectus which will correct such
statement or omission or effect such compliance.
(d) To file promptly with the Commission any
amendment to the Registration Statement or the Prospectus or
any supplement to the Prospectus that may, in the judgment of
the Company or the Underwriters, 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 Underwriters and counsel for the Underwriters
and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date
(it being understood that the Company shall have until at
least 410 days after the end of the Company's current fiscal
quarter), to make generally available to
20
the Company's security holders and to deliver to the
Underwriters an earnings statement of the Company and its
subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule
158);
(g) For a period of five years following the
Effective Date, to furnish to the Underwriters copies of all
materials furnished by the Company to its public shareholders
and all public reports and all reports and financial
statements furnished by the Company to the principal national
securities exchange upon which the PInES may be listed
pursuant to requirements of or agreements with such exchange
or to the Commission pursuant to the Exchange Act or any rule
or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as
the Underwriters may reasonably request to qualify the
Securities for offering and sale (or obtain an exemption from
registration) under the securities laws of such jurisdictions
as the Underwriters may request and to comply with such laws
so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to
complete the distribution of the Stock; provided, however,
that the Company shall not be required to qualify as a foreign
corporation or a dealer in securities or to execute a general
consent to service of process in any jurisdiction in any
action other than one arising out of the offering or sale of
the Stock;
(i) For a period of 90 days from the date of the
Prospectus, not to, directly or indirectly, (i) offer for
sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock or any
securities convertible into or exchangeable for Common Stock
(other than the Securities, the Concurrent Common Stock, the
Mandatorily Convertible Preferred Stock, the Seller Depositary
Shares, the Seller Convertible Redeemable Preferred Stock,
shares issued pursuant to employee benefit plans, qualified
stock option plans or other employee compensation plans
existing on the date hereof or pursuant to currently
outstanding options, warrants or rights or upon the
21
conversion of the Seller Convertible Redeemable Preferred
Stock or the Mandatorily Convertible Preferred Stock, and
other than shares issued by the Company as consideration to
any seller of assets or stock that the Company or any of the
Subsidiaries is acquiring, provided that any shares so issued
to such seller or sellers, including any shares issued after
the date of the Prospectus pursuant to the Walibi Acquisition
or the Walibi Tender Offer, in the aggregate, do not exceed
one-fifth of the total equity of the Company outstanding at
the time of the first such issuance, and further provided that
such seller or sellers (other than the sellers of Walibi)
contemporaneously with any such issuance or issuances enter
into an agreement with the Underwriters in substantially the
same form as the agreement described in this paragraph (i) for
the remainder of the 90 day period), or sell or grant options,
rights or warrants with respect to any shares of Common Stock
or securities convertible into or exchangeable for Common
Stock (other than the grant of options pursuant to option
plans existing on the date hereof) or (ii) enter into any swap
or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of
ownership of such shares of Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or other securities, in
cash or otherwise, in each case without the prior written
consent of Xxxxxx Brothers Inc.; and to cause each officer and
director of the Company and Hanseatic Corporation, Richland
Ventures, L.P., Richland Ventures II, L.P., Lawrence, Tyrrell,
Xxxxxx & Smith, Lawrence, Xxxxxxx, Xxxxxx & Xxxxx II, L.P.,
Windcrest Partners, [JG Partnership, Ltd.,] [J. Xxxxx Xxxxxxx]
and Xxxxxx X. Xxxxxxx (in the case of Xxxxxx X. Xxxxxxx only,
limited to (A) shares held for his own account and (B) shares
beneficially owned by Lexfor Corporation) to furnish to the
Underwriters, prior to the First Delivery Date, a letter or
letters, in form and substance satisfactory to counsel for the
Underwriters, pursuant to which each such person shall agree
not to, directly or indirectly, (iii) offer for sale, sell,
pledge or otherwise dispose of (or enter into any transaction
or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the
future of) any shares of Common Stock or any securities
convertible into or exchangeable for Common Stock or (iv)
enter into any swap or other derivatives transaction that
transfers to another, in
22
whole or in part, any of the economic benefits or risks of
ownership of such shares of Common Stock, whether any such
transaction described in clause (iii) or (iv) above is to be
settled by delivery of Common Stock or other securities, in
cash or otherwise, in each case for a period of 90 days from
the date of the Prospectus, without the prior written consent
of Xxxxxx Brothers Inc.;
(j) To take such steps as shall be necessary to
ensure that neither the Company nor any subsidiary shall
become an "investment company" within the meaning of such term
under the Investment Company Act of 1940 and the rules and
regulations of the Commission thereunder;
(k) To cause an authorized officer to execute this
Agreement on behalf of each of the Six Flags Subsidiaries on
the First Delivery Date;
(l) Not to waive the lock-up agreements executed by
the Sellers in connection with the Six Flags Acquisition
whereby each of the Sellers agreed to not sell any Seller
Convertible Redeemable Preferred Stock (or shares of Common
Stock issuable upon conversion thereof) during the period of
90 days from the date of the Prospectus, without the prior
written consent of Xxxxxx Brothers Inc.; and
(m) To make an offer to purchase the SFTP Senior
Subordinated Notes following the Six Flags Acquisition in
accordance with the provisions of the indenture for the SFTP
Senior Subordinated Notes relating to offers to purchase the
SFTP Senior Subordinated Notes upon a change of control of
SFTP.
6. Expenses. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Securities and
any taxes payable in that connection; (b) the costs incident to the
preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the
costs of distributing the Registration Statement as originally filed
and each amendment thereto and any post-effective amendments thereof
(including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any
document incorporated by reference therein, all as provided in this
Agreement; (d) the costs of producing and distributing
23
this Agreement, the Deposit Agreement and any other related documents
in connection with the offering, purchase, sale and delivery of the
Securities; (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 Securities; (f) listing or other
fees incident to the inclusion of the PInES and the Common Stock,
issuable upon conversion of the Mandatorily Convertible Preferred Stock
or as dividends on the Mandatorily Convertible Preferred Stock, for
listing on the New York Stock Exchange; (g) the fees and expenses, if
applicable, of qualifying the Securities 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) all other costs and expenses incident to
the performance of the obligations of the Company or any of the
Subsidiaries under this Agreement; and (j) all fees and expenses of the
Depositary; 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 Securities which they may sell and the expenses of advertising
any offering of the Securities 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 each Delivery Date, of the representations and
warranties of the Company, Premier Operations, SFEC and SFTP contained
herein, to the performance by the Company and each of the Subsidiaries
that is a party hereto of its obligations hereunder, and to each of the
following additional terms and conditions:
(a) The Prospectus shall have been timely filed with
the Commission in accordance with Section 5(a); no stop order
suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for
that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and
disclosed to the Company on or prior to such Delivery
24
Date that the Registration Statement or the Prospectus or any
amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Cravath, Swaine & Xxxxx,
counsel for the 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 Securities, the Registration Statement and the
Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby shall be
reasonably satisfactory in all material respects to counsel
for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) Xxxx Marks & Xxxxx LLP shall have furnished to
the Underwriters its written opinion, as counsel to the
Company, addressed to the Underwriters and dated such Delivery
Date, in form reasonably satisfactory to the Underwriters, 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 or hold their
respective properties and conduct the
25
businesses in which they are engaged as described in
the Prospectus;
(ii) The Company has an authorized
capitalization as set forth in the Prospectus, and
all of the issued shares of capital stock of the
Company now outstanding (including the shares of the
Securities being delivered on such Delivery Date and
the shares of Mandatorily Convertible Preferred
Stock) 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 the
Securities and the shares of Mandatorily Convertible
Preferred Stock have been duly authorized and, when
issued and delivered to the Underwriters for the
account of each Underwriter against payment therefor
as provided herein and to the Depositary in
accordance with the Deposit Agreement, respectively,
shall be validly issued, fully paid and
non-assessable; the shares of Common Stock, issuable
upon the conversion of the Mandatorily Convertible
Preferred Stock or as dividends on the Mandatorily
Convertible Preferred Stock, have been duly and
validly authorized and reserved for issuance upon
such conversion or dividend, will be validly issued,
fully paid and nonassessable; such Common Stock
conforms in all material respects to the description
thereof contained in the Prospectus; 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
26
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 Securities or the Mandatorily
Convertible Preferred Stock pursuant to the Company's
charter or by-laws or any agreement or other
instrument known to such counsel;
(iv) To the best of such counsel's knowledge
and other than as set forth in the Prospectus, there
are no legal or governmental proceedings pending to
which the Company or any of the Subsidiaries is a
party or of which any property or assets of the
Company or any of the Subsidiaries is the subject
which, if determined adversely to the Company or any
of the Subsidiaries, might have a Material Adverse
Effect; and, to the best of such counsel's knowledge,
no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(v) Based solely upon oral confirmation from
the staff of the Commission, the Registration
Statement was declared effective under the Securities
Act as of the date and time specified in such
opinion; the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the
Rules and Regulations specified in such opinion on
the date specified therein and no stop order
suspending the effectiveness of the Registration
Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is
pending or threatened by the Commission;
(vi) The Registration Statement and the
Prospectus and any further amendments or
27
supplements thereto made by the Company prior to such
Delivery Date (other than the financial statements
and related schedules therein and other financial or
statistical data included therein, as to which such
counsel need express no opinion) comply as to form in
all material respects with the requirements of the
Securities Act and the Rules and Regulations; and the
documents incorporated by reference in the Prospectus
(other than the financial statements and related
schedules therein and other financial or statistical
data included therein, as to which such counsel need
express no opinion), when they were filed with the
Commission, complied as to form in all material
respects with the requirements of the Exchange Act
and the rules and regulations of the Commission
thereunder;
(vii) To the best of such counsel's
knowledge, there are no contracts or other documents
which are required to be described in the Prospectus
or filed as exhibits to the Registration Statement by
the Securities Act or by the Rules and Regulations
which have not been described or filed as exhibits to
the Registration Statement or incorporated therein by
reference as permitted by the Rules and Regulations;
(viii) This Agreement has been duly
authorized, executed and delivered by the Company and
each of the Subsidiaries that is a party hereto;
(ix) The Deposit Agreement relating to the
Securities has been duly authorized, executed and
delivered by the Company, and, assuming due
authorization, execution and delivery thereof by the
Depositary named therein, constitutes a valid and
binding instrument enforceable against the Company in
accordance with its terms (except to the extent that
(a) enforcement thereof may be limited by (1)
bankruptcy, reorganization, insolvency, fraudulent
transfer, moratorium or other laws now or hereafter
in effect relating to creditors' rights generally and
(2) general principles of equity (regardless of
whether at law or in equity) and except to the extent
that rights to contribution and indemnification may
be violative of public policy underlying any law,
rule or regulation (including any Federal or state
28
securities law, rule or regulation); assuming payment
of the purchase price by the Underwriters, each of
the Securities represents a one-five hundredth
interest in a validly issued, outstanding, fully paid
and nonassessable share of Mandatorily Convertible
Preferred Stock; and the Securities, when issued
under the Deposit Agreement in accordance with the
provisions of the Deposit Agreement, will be validly
issued, and, assuming due execution and delivery of
the depositary receipts relating to the Securities by
the Depositary pursuant to the Deposit Agreement,
such depositary receipts will entitle the holders
thereof to the benefits provided therein and in the
Deposit Agreement;
(x) The issue and sale of the shares of the
Securities and the issue and exchange of the shares
of Mandatorily Convertible Preferred Stock both being
delivered on such Delivery Date by the Company, the
issuance of Common Stock upon the conversion of or as
dividends on the Mandatorily Convertible Preferred
Stock and the compliance by the Company and each of
the Subsidiaries that is a party hereto with all of
the provisions of this Agreement and the Deposit
Agreement and the consummation of the transactions
contemplated hereby and thereby (including the
offerings of the Company Senior Discount Notes, the
Company Senior Notes and the New SFEC Notes and the
entering into of the Six Flags Credit Facility and
any borrowing thereunder in connection with the Six
Flags Acquisition) will not conflict with or result
in a breach or violation of any of the terms or
provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel
to which the Company or any of the Subsidiaries is a
party or by which the Company or any of the
Subsidiaries is bound or to which any of the property
or assets of the Company or any of the Subsidiaries
is subject, nor will such actions 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 Securities by the Underwriters, the exchange of
the Mandatorily Convertible Preferred Stock for
depositary receipts by the Depositary and the
issuance of Common Stock upon the conversion of or as
dividends on the Mandatorily Convertible Preferred
Stock 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
Securities and the Mandatorily Convertible Preferred
Stock under the Securities Act and such consents,
approvals, authorizations, registrations or
qualifications as may be required under the Exchange
Act and
29
applicable state or foreign securities laws in
connection with the purchase and distribution of the
Securities by the Underwriters and the exchange of
the Mandatorily Convertible Preferred Stock for
depositary receipts by the Depositary and the
issuance of Common Stock upon the conversion of
or as dividends on the Mandatorily Convertible
Preferred Stock 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 Securities and the Mandatorily
Convertible Preferred Stock under the Securities
Act and such consents, approvals, authorizations,
registrations or qualifications as may be required
under the Exchange Act and applicable state or
foreign securities laws in connection with the
purchase and distribution of the Securities by the
Underwriters and the exchange of the Mandatorily
Convertible Preferred Stock for depositary
receipts by the Depositary, no consent, approval,
authorization or order of, or filing or
registration with, any such court or governmental
agency or body is required for the execution,
delivery and performance of this Agreement or the
Deposit Agreement by the Company or any of the
Subsidiaries that is a party hereto and the
consummation of the transactions contemplated hereby
and thereby; and
(xi) To the best of such counsel's
knowledge, no holders of securities of the Company
have rights to require the Company to include such
securities with the Securities or the Mandatorily
Convertible Preferred Stock registered pursuant to
the Registration Statement.
In rendering such opinion, such counsel may state
that its opinion is limited to matters governed by the Federal
laws of the United States of America, the laws of the State of
New York and the General Corporation Law of the State of
Delaware and that such counsel is not admitted in any state
other than New York; and, in respect of matters of fact, may
rely upon certificates of
30
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
Underwriters a written statement, addressed to the
Underwriters and dated such Delivery Date, in form
satisfactory to the Underwriters, to the effect that (x) such
counsel has acted as counsel to the Company on a regular basis
(although the Company is also represented with respect to the
Walibi Acquisition, the Walibi Tender Offer, the Six Flags
Acquisition, litigation matters, regulatory matters and
certain other matters, by other outside counsel), has acted as
counsel to the Company in connection with financing
transactions since February 1992 and has acted as counsel to
the Company in connection with the preparation of the
Registration Statement and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead it
to believe that (I) the Registration Statement (other than the
financial statements and other financial and statistical data
contained therein, as to which such counsel need express no
belief), as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading, or that the
Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which
such counsel need express no belief) contains any untrue
statement of a material fact or omits to state a material fact
required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading or (II) any documents
incorporated by reference in the Prospectus (other than the
financial statements and other financial and statistical data
contained therein, as to which such counsel need express no
belief) when they were filed with the Commission contained an
untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading. In rendering such statement, such
counsel may rely upon the opinion and statement delivered by
Xxxx Xxxxxxx & Xxxxxx LLP pursuant to Section 5(e) hereto with
respect to the information covered by such opinion and
statement. The foregoing opinion and statement may be
qualified by a statement to the effect that such counsel does
not assume any responsibility for
31
the accuracy or fairness with respect to the information
required to be shown under the Securities Act and the Rules
and Regulations of the statements contained in the
Registration Statement or the Prospectus except for the
statements made in the Prospectus under the captions
"Prospectus Summary--Other Recent Developments--Walibi",
"Business--Intercompany Services Agreement", "Business--Tax
Sharing Agreement", "Description of Indebtedness",
"Description of Securities", "Description of PInES" and
"Description of Depositary Arrangements" insofar as such
statements describe the terms of the Walibi Acquisition and
Walibi Tender Offer, the documents or agreements referred to
therein, the Stock, the Seller Convertible Redeemable
Preferred Stock, the Company's debt instruments or other
securities, or the registration rights referred to therein and
concern legal matters.
(e) Xxxx Xxxxxxx & Xxxxxx LLP shall have furnished to
the Underwriters its written opinion, as special counsel to
the Company, addressed to the Underwriters and dated such
Delivery Date, in form reasonably satisfactory to the
Underwriters, 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 Underwriters a written statement, addressed to the
Underwriters and dated such Delivery Date, in form
satisfactory to the Underwriters, 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
32
Acquisition and the business and operations of Walibi and its
subsidiaries and SFEC and its subsidiaries and (y) based on
the foregoing, no facts have come to the attention of such
counsel which lead it to believe that (I) the Registration
Statement (other than the financial statements and other
financial and statistical data contained therein, as to which
such counsel need express no belief), as of the Effective
Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading, or that the Prospectus (other than the financial
statements and other financial and statistical data contained
therein, as to which such counsel need express no belief)
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading
or (II) any documents incorporated by reference in the
Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which
such counsel need express no belief) when they were filed with
the Commission contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances
under which they were made, not misleading. The foregoing
statement may be qualified by a statement to the effect that
the statement's scope is limited to the Walibi and Six Flags
Information.
(f) Xxxxxxxx, Xxxxxx & Finger shall have furnished to
the Underwriters 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 Underwriters, 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 Underwriters shall have received from
Cravath, Swaine & Xxxxx, counsel for the Underwriters, such
opinion or opinions and such statement or statements, dated
such Delivery Date, with respect to the
33
issuance and sale of the Stock, the Registration Statement,
the Prospectus and other related matters as the Underwriters
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
Underwriters shall have received from (I) KPMG Peat Marwick
LLP a letter, in form and substance satisfactory to the
Underwriters, 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 & Xxxxxxx and Xxxxxxxxx Xxxxxxxx &
Xxxxxxxx described immediately hereinafter; (II) Ernst & Young
LLP a letter, in form and substance satisfactory to the
Underwriters, 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 Underwriters; (III) Coopers & Xxxxxxx a letter,
in form and substance satisfactory to the Underwriters,
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
34
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 Underwriters; and (IV) Xxxxxxxxx Xxxxxxxx &
Xxxxxxxx a letter, in form and substance satisfactory to the
Underwriters, 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 Underwriters.
(i) With respect to the letters of KPMG Peat Marwick
LLP, Ernst & Young LLP, Coopers & Xxxxxxx and Xxxxxxxxx
Xxxxxxxx & Xxxxxxxx referred to in the preceding paragraph and
delivered to the Underwriters concurrently with the execution
of this Agreement (the "initial letters"), the Company shall
have furnished to the Underwriters a letter (the "bring-down
letters") of each of such accountants, addressed to the
Underwriters and dated such Delivery Date (i) confirming that
they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission, (ii)
stating, as of the date of the bring-down letter (or, in the
case of the letter of KPMG Peat Marwick LLP, with respect to
matters involving changes or developments since the respective
dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to
the date of the bring-down letter), the conclusions and
findings of such firm with respect to the financial
information and other matters covered by the initial letter
and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter.
(j) The Company shall have furnished to the
Underwriters a certificate, dated such Delivery Date, of its
Chairman of the Board, its President or a Vice President and
its chief financial officer stating that:
35
(i) The representations, warranties and
agreements of the Company and each of Premier
Operations, SFEC and SFTP in Section 1 are true and
correct as of such Delivery Date; the Company and
each of the Subsidiaries that is a party hereto have
complied with all their agreements contained herein;
and the conditions set forth in Sections 7(a) and
7(k) have been fulfilled; and
(ii) They have carefully examined the
Registration Statement and the Prospectus and, in
their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include
any untrue statement of a material fact and did not
omit to state a material fact required to be stated
therein or necessary to make the statements therein
not misleading, and (B) since the Effective Date no
event has occurred which should have been set forth
in a supplement or amendment to the Registration
Statement or the Prospectus.
(k) Since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus there shall not have been any change in the capital
stock (or partners' equity, as applicable) other than the
Premier Merger or long-term debt of the Company or any of the
Subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs,
management, financial position, stockholders' equity (or
partners' equity, as applicable) or results of operations of
the Company and its subsidiaries, otherwise, in each case,
than as set forth or contemplated in the Prospectus, the
effect of which, in any such case, is, in the judgment of the
Underwriters, 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 Securities being delivered on
such Delivery Date on the terms and in the manner contemplated
in the Prospectus.
(l) Subsequent to the execution and delivery of this
Agreement (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is
defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no
36
such organization shall have publicly announced that it has
under surveillance or review, with possible negative
implications, its rating of any of the Company's debt
securities.
(m) Subsequent to the execution and delivery of this
Agreement there shall not have occurred any of the following:
(i) trading in securities generally on the New York Stock
Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market,
shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body
or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged
in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have
been a declaration of a national emergency or war by the
United States or (iv) there shall have occurred such a
material adverse change in general economic, political or
financial conditions (or the effect of international
conditions on the financial markets in the United States shall
be such) as to make it, in the judgment of a majority in
interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of
the Securities being delivered on such Delivery Date on the
terms and in the manner contemplated in the Prospectus.
(n) The Six Flags Acquisition shall have been or
shall be consummated concurrently with the Offering and
without any material waiver of any of the conditions precedent
to any of the parties' obligations under the Merger Agreement.
(o) Each of the offerings by the Company of the
Company Senior Discount Notes, the Company Senior Notes and
the Concurrent Common Stock shall have been or shall be
consummated concurrently with the Offering.
(p) The offering by SFEC of the New SFEC Notes shall
be consummated immediately following the Offering.
37
(q) Each of the Premier Credit Facility and the Six
Flags Credit Facility shall be in effect and available for
borrowing.
(r) No default or event which, with notice or lapse
of time or both, would constitute such a default shall have
occurred and be continuing, or would result from the
transactions contemplated hereby to occur prior to,
concurrently with or immediately following the consummation of
the Offering, under (i) the Merger Agreement, (ii) the
indentures relating to any of the Company Senior Discount
Notes, the Company Senior Notes, the 1995 Premier Notes, the
1997 Premier Notes, the SFEC Zero Coupon Notes, the SFTP
Senior Subordinated Notes and the New SFEC Notes, (iii) the
credit agreement relating to either the Premier Credit
Facility or the Six Flags Credit Facility, (iv) the Walibi
Agreement or (v) the Deposit Agreement.
(s) The Premier Merger shall have been consummated.
(t) Each of (i) the License Agreement, (ii) the
Subordinated Indemnity Agreement, (iii) the Intercompany
Services Agreement, (iv) the Tax Sharing Agreement and (v) the
Deposit Agreement shall have been entered into by the parties
thereto with the provisions described in the Prospectus.
(u) An authorized officer shall have executed this
Agreement on behalf of each of the Six Flags Subsidiaries.
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,
38
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 the Securities), 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
Securities 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 Securities or the Offering contemplated hereby, and which
is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the
Company and the Subsidiaries that are parties hereto shall not
be liable under this clause (iii) to the extent that it is
determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such 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
39
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 by 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
Securities 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 Securities to such person, and (B) the
untrue statement or omission in the Preliminary Prospectus was
corrected in the Prospectus unless, in either case, such
failure to deliver the Prospectus was a result of
noncompliance by the Company with Section 5(c). The foregoing
indemnity agreement is in addition to any liability which the
Company or any of the Subsidiaries that are parties hereto may
otherwise have to any Underwriter or to any officer, employee
or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly,
shall indemnify and hold harmless the Company and the
Subsidiaries that are parties hereto, each of their respective
officers and employees, each of their respective directors,
and each person, if any, who controls the Company or any
Subsidiary that is a party hereto within the meaning of the
Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof,
to which the Company or any Subsidiary that is a party hereto
or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as
such loss, claim, damage, 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
40
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 by that Underwriter specifically for inclusion
therein, and shall reimburse the Company, any such Subsidiary
and any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company,
any such Subsidiary or any such director, officer or
controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The
foregoing indemnity agreement is in addition to any liability
which any Underwriter may otherwise have to the Company, any
such Subsidiary, or any such director, officer, employee or
controlling person.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of any claim or the
commencement of any action, the indemnified party shall, if a
claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the
indemnifying party in writing of the claim or the commencement
of that action; provided, however, that the failure to notify
the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it
has been materially prejudiced by such failure and, provided
further, that the failure to notify the indemnifying party
shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If
any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly
with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to
assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently
incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation;
provided, however, that the Underwriters shall have the right,
upon written notice to the Company, to employ counsel to
represent jointly the Underwriters and their respective
officers, employees and controlling persons who may be subject
to liability arising out of any claim in respect of which
41
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
Underwriters, it is advisable for the Underwriters, officers,
employees and controlling persons to be jointly represented by
separate counsel, and in that event the reasonable fees and
expenses of such separate counsel shall be paid, jointly and
severally, by the Company and the Subsidiaries that are
parties hereto. It is understood that the indemnifying party
or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more
than one separate firm of attorneys (in addition to any local
counsel) at any one time for all such indemnified party or
parties. No indemnifying party shall (i) without the prior
written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional
release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding, or (ii) be
liable for any settlement of any such action effected without
its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying
party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss
or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this
Section 8 shall for any reason be unavailable to or
insufficient to hold harmless an indemnified party under
Section 8(a) or 8(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to
therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such
loss, claim, damage or liability, or action in respect
thereof, (i) in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the
Subsidiaries that are parties hereto on the one hand and the
Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not
42
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 Securities purchased under this Agreement
(before deducting expenses) received by the Company on the one
hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the shares of the
Securities purchased under this Agreement, on the other hand,
bear to the total gross proceeds from the offering of the
shares of the Securities under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus.
The relative fault shall be determined by reference to whether
the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters,
the intent of the parties and their relative knowledge, access
to information and opportunity to correct or prevent such
statement or omission. For purposes of the preceding two
sentences, the net proceeds deemed to be received by the
Company shall be deemed to be also for the benefit of the
Subsidiaries that are parties hereto and information supplied
by the Company shall also be deemed to have been supplied by
the Subsidiaries that are parties hereto. The Company, the
Subsidiaries that are parties hereto and the Underwriters
agree that it would not be just and equitable if contributions
pursuant to this Section 8(d) were to be determined by pro
rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in
this Section shall be deemed to include, for purposes of this
Section 8(d), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by
which the total price at which the
43
Securities underwritten by it and distributed to the public
was offered to the public exceeds the amount of any damages
which such Underwriter has otherwise paid or become liable to
pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
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 Securities by the Underwriters set forth in
the first and last paragraphs on the cover page of, the legend
concerning stabilization on the third page of and statements
under the caption "Underwriting" including but not limited to
the concession and reallowance figures, the Prospectus
constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
9. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriter shall be obligated to purchase the
Securities which the defaulting Underwriter agreed but failed to
purchase on such Delivery Date; provided, however, that the remaining
non-defaulting Underwriter shall not be obligated to purchase any of
the Securities on such Delivery Date if the total number of shares of
the Securities which the defaulting Underwriter agreed but failed to
purchase on such date exceeds 9.09% of the total number of shares of
the Securities to be purchased on such Delivery Date, and the remaining
non-defaulting Underwriter shall not be obligated to purchase more than
110% of the number of shares of the Securities which it agreed to
purchase on such Delivery Date pursuant to the terms of Section 2. If
the foregoing maximums are exceeded, the remaining non-defaulting
Underwriter, or those other underwriters satisfactory to the
non-defaulting Underwriter who so agree, shall have the right, but
shall not be obligated, to purchase,
44
in such proportion as may be agreed upon among them, all the Securities
to be purchased on such Delivery Date. If the remaining Underwriter or
other underwriters satisfactory to the remaining Underwriter do not
elect to purchase the shares which the defaulting Underwriter agreed
but failed to purchase on such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters
to purchase, and of the Company to sell, the Option Securities) shall
terminate without liability on the part of the 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 Securities 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 Securities of a defaulting or withdrawing Underwriter,
either the non-defaulting Underwriter 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 Underwriters by notice given to and received
by the Company prior to delivery of and payment for the Firm Securities
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 Securities for any reason permitted under this
Agreement.
11. Reimbursement of Underwriters' Expenses. If the Company
shall fail to tender the Securities for delivery to the Underwriters by
reason of any failure, refusal or inability on the part of the Company
to perform any agreement on its part to be performed, or because any
other condition of the Underwriters' obligations hereunder required to
be fulfilled by the Company is not fulfilled (other than by reason of
any events described in Section 7(m) except for the
45
suspension of trading or minimum prices of the securities of the
Company), the Company will reimburse the Underwriters for all
reasonable out-of-pocket expenses (including fees and disbursements of
counsel) incurred by the Underwriters in connection with this Agreement
and the proposed purchase of the Securities, and promptly following
demand the Company shall pay the full amount thereof to the
Underwriters. If this Agreement is terminated pursuant to Section 9 by
reason of the default of one or more Underwriters, the Company shall
not be obligated to reimburse any defaulting Underwriter on account of
those expenses.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or
sent by mail, telex or facsimile transmission to Xxxxxx
Brothers Inc., Three World Financial Center, New York, New
York 10285, Attention: Syndicate Department (Fax:
212-526-6588), with a copy, in the case of any notice pursuant
to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Xxxxxx Brothers Inc., 0 Xxxxx Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or any of the Subsidiaries,
shall be delivered or sent by mail, telex or facsimile
transmission to 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX
00000, Attention: Xxxxxx X. Xxxxx (Fax: 000- 000-0000);
provided, however, that any notice to a Underwriter pursuant to Section
8(c) shall be delivered or sent by mail, telex or facsimile
transmission to such Underwriter at its address set forth in its
acceptance telex , which address will be supplied to any other party
hereto by the Underwriters upon request. Any such statements, requests,
notices or agreements shall take effect at the time of receipt thereof.
The Company shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the
Underwriters by Xxxxxx Brothers Inc. on behalf of the Underwriters.
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
46
benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company and the
applicable Subsidiaries contained in this Agreement shall also be
deemed to be for the benefit of the officers and employees of each
Underwriter and the person or persons, if any, who control any
Underwriter within the meaning of Section 15 of the Securities Act and
(B) the indemnity agreement of the Underwriters contained in Section
8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within
the meaning of Section 15 of the Securities Act. Nothing in this
Agreement is intended or shall be construed to give any person, other
than the persons referred to in this Section 13, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the applicable Subsidiaries
and the Underwriters contained in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall survive
the delivery of and payment for the Securities 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,
47
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, [S.F. Holdings, Inc., a Delaware corporation, SFTP Inc., a
Delaware corporation, S.F. Sponsorship Services, Inc., a Delaware
corporation, Six Flags Over Georgia, Inc., a Delaware corporation, SFOG
II, Inc., a Delaware corporation, SFOG II Employee, Inc., a Delaware
corporation, SFOG Acquisition A, Inc., a Delaware corporation, SFOG
Acquisition B, LLC, a Delaware limited liability company, Six Flags
Over Texas, Inc., a Delaware corporation, SFOT Employee, Inc., a
Delaware corporation, SFOT Acquisition I, Inc.,, a Delaware
corporation, SFOT Acquisition II, Inc., a Delaware corporation, SFOT
II, Inc., a Delaware corporation, American National Indemnity Co., a
Vermont corporation, Six Flags Beverages, Inc., a Texas corporation,
Funtircity Family Entertainment Parks, Inc., a Delaware corporation,
Funtricity Vicksburg Family Entertainment Park Inc., a Delaware
corporation, Pennrec, Co., a Delaware corporation, Six Flags Admiral,
Inc., a Delaware corporation, Six Flags Management Corp., a Delaware
corporation, Six Flags Power Plant, Inc., a Delaware corporation, Six
Flags Services, Inc., a Delaware Corporation, Six Flags Services of
Georgia, Inc., a Georgia corporation, Six Flags Services of Illinois,
Inc. , a Delaware corporation, Six Flags Services of Missouri, Inc., a
Delaware corporation, Six Flags Services of Texas, Inc., a Delaware
corporation, Stars Hall of Fame, Inc., a Delaware corporation, San
Xxxxxxx Xxxx GP, LLC, a Delaware limited liability company, SFTP San
Antonio GP, Inc., a Delaware corporation, Texas Flags Ltd., a Texas
corporation, and SFTP San Antonio, Inc., a Delaware corporation], (e)
"Six Flags Partnership" means each of Fiesta Partnership, the Georgia
Co-Venture Partnership, the Texas Co-Venture Partnership and [Six Flags
San Antonio, L.P., a Delaware limited partnership], (f) "Subsidiary"
means each of the Premier Subsidiaries, the Premier Partnerships, the
Six Flags Subsidiaries and the Six Flags Partnerships; provided,
however, that the term
48
"Subsidiary" shall include the Six Flags Subsidiaries and the Six Flags
Partnerships only as of and after the First Delivery Date, and
"Co-Venture Parks Agreements" means (i) the Overall Agreement, dated as
of February 15, 1997, among Six Flags Fund, Ltd. (L.P.), Xxxxxx Family
Trust, SFG, Inc., SFG-I, LLC, SFG-II, LLC, Six Flags Over Georgia,
Ltd., SFOG II, Inc., SFOG II Employee, Inc., SFOG Acquisition A, Inc.,
SFOG Acquisition B, L.L.C., Six Flags Over Georgia, Inc., Six Flags
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.
49
If the foregoing correctly sets forth the agreement among the
Company, the Subsidiaries that are parties hereto and the Underwriters,
please indicate your acceptance in the space provided for that purpose
below.
Very truly yours,
Premier Parks Inc.
By
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
The Premier Subsidiaries (as
listed in Section 15 but
not including Walibi)
By
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
The Premier Partnerships (as
listed in Section 15)
By Each of their respective
General Partners
By
Name: Xxxxxx X. Xxxxx
Title: Chairman of the
Board and Chief
Executive Officer
The Six Flags Subsidiaries (as
listed in Section 15)
By
Name: Xxxxxx X. Xxxxx
50
Title: Chairman of the
Board and Chief
Executive Officer
Accepted:
Xxxxxx Brothers Inc.
Xxxxx Xxxxxx Inc.
By Xxxxxx Brothers Inc.
By
----------------------
Authorized Representative
51
SCHEDULE 1
Number
Underwriters of Firm Shares
------------- ---------------
Xxxxxx Brothers Inc.........................
Xxxxx Xxxxxx Inc............................
----------
Total.................................
----------
----------
