Exhibit 1(b)
2,600,000 Shares
PREMIER PARKS INC.
Common Stock
INTERNATIONAL UNDERWRITING AGREEMENT
, 1998
Xxxxxx Brothers International (Europe)
Xxxxx Xxxxxx Inc.
Xxxxxx Xxxx LLC
NationsBanc Xxxxxxxxxx Securities LLC
As Lead Managers of the several
International Managers named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Premier Parks Inc., a Delaware corporation (the "Company"), proposes to
sell to the International Managers named in Schedule 1 hereto (the
"International Managers"), and the International Managers propose, severally and
not jointly, to purchase 2,600,000 shares (the "Firm Stock") of the Company's
Common Stock, par value $.05 per share (the "Common Stock"). In addition, the
Company proposes to grant to the International Managers an option to purchase up
to an additional 390,000 shares of the Common Stock on the terms and for the
purposes set forth in Section 2 (the "Option Stock"). The Firm Stock and the
Option Stock, if purchased, are hereinafter collectively called the "Stock".
This is to confirm the agreement concerning the purchase of the Stock from the
Company by the International Managers.
It is understood by all parties that the Company is currently entering
into an agreement dated the date hereof (the "U.S. Underwriting Agreement")
providing for the sale by the Company of 11,960,000 shares of Common Stock
(including the over-allotment option thereunder) (the "U.S. Stock") through
arrangements with certain underwriters in the United States (the "U.S.
Underwriters"), for whom Xxxxxx Brothers
Inc., Xxxxx Xxxxxx Inc., Xxxxxx Xxxx LLC and NationsBanc Xxxxxxxxxx Securities
LLC are acting as representatives (the "Representatives"). The International
Managers and the U.S. Underwriters simultaneously are entering into an agreement
between the international and U.S. underwriting syndicates (the "Agreement
Between U.S. Underwriters and International Managers") which provides for, among
other things, the transfer of shares of Common Stock between the two syndicates.
One form of prospectus relating to the Stock and one form of prospectus
relating to the U.S. Stock are to be used in connection with the offering (the
"Offering") of the Stock and the U.S. Stock. The latter form of prospectus will
be identical to the former except for certain substitute pages as included in
the registration statement and amendments thereto referred to below. Except as
used in Sections 2, 3, 4, 9 and 10 herein, and except as the context may
otherwise require, references herein to the Stock shall include all the shares
which may be sold pursuant to either this Agreement or the U.S. Underwriting
Agreement, and references herein to any prospectus whether in preliminary or
final form, and whether as amended or supplemented, shall include both the
international and the U.S. versions thereof. As used in this Agreement, the term
"Underwriter" includes International Managers and U.S. Underwriters.
It is also understood by all parties that the Company is undertaking
the Offering in connection with its acquisition (the "Six Flags Acquisition")
from the current stockholders (the "Sellers") of all of the capital stock of Six
Flags Entertainment Corporation ("SFEC"), and that, in connection with the Six
Flags Acquisition, the Company is concurrently offering $ million aggregate
principal amount at maturity of its senior discount notes due 2008 (the "Company
Senior Discount Notes") with estimated gross proceeds of $250 million, $280
million aggregate principal amount of its senior notes due 2006 (the "Company
Senior Notes") and, with the over-allotment option, 5,750,000 Premium Income
Equity Securities ("PInES") representing interests in the Company's mandatorily
convertible preferred stock (the "Mandatorily Convertible Preferred Stock") with
estimated gross proceeds of $228.2 million. In addition, it is understood by all
parties that Six Flags Theme Parks Inc. ("SFTP") is concurrently entering into a
new $472 million senior secured credit facility (the "Six Flags Credit
Facility") under a credit agreement dated the date of this Agreement among it,
certain of the Six Flags Subsidiaries (as defined in Section 15) and Xxxxxx
Commercial Paper, Inc., and
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Premier Operations Inc. ("Premier Operations") has entered into a $300 million
senior secured credit facility (the "Premier Credit Facility" and, together with
the Six Flags Credit Facility, the "Credit Facilities") under a credit agreement
among the Company, certain of the Premier Subsidiaries and Premier Partnerships
(each as defined in Section 15) and Xxxxxx Commercial Paper, Inc. It is further
understood by all parties that, immediately following the Offering, SFEC will
offer $170 million aggregate principal amount of senior notes due 2006 (the "New
SFEC Notes"), and that, concurrently with the Offering, the Company may issue
depositary shares (the "Seller Depositary Shares") representing interests in up
to $200 million of the Company's convertible redeemable preferred stock (the
"Seller Convertible Redeemable Preferred Stock") to the Sellers as part of the
consideration for the Six Flags Acquisition.
1. Representations, Warranties and Agreements of the Company and
Certain of the Subsidiaries. The Company and Premier Operations and, as of the
First Delivery Date (as hereinafter defined), SFEC and SFTP represent, warrant
and agree, jointly and severally, that:
(a) A registration statement on Form S-3 (file number 333-45859), and
amendments thereto, with respect to the Stock has (i) been prepared by the
Company in conformity in all material respects with the requirements of the
United States Securities Act of 1933 (the "Securities Act") and the rules
and regulations (the "Rules and Regulations") of the United States
Securities and Exchange Commission (the "Commission") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become
effective under the Securities Act. Copies of such registration statement
and amendments thereto have been delivered by the Company to you as the
lead managers (the "Lead Managers") of the International Managers. 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
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became effective under the Securities Act and any prospectus relating to
the Stock filed with the Commission by the Company with the consent of the
Lead Managers pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement, as amended at
the Effective Time, including any documents incorporated by reference
therein at such time and all information contained in the final prospectus
relating to the Stock filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations in accordance with Section 5(a) hereof and deemed
to be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations and, in
the event any Rule 462(b) Registration Statement becomes effective prior to
the First Delivery Date, also means such registration statement as so
amended, unless the context otherwise requires; "Prospectus" means such
final prospectus, as first filed with the Commission pursuant to paragraph
(1) or (4) of Rule 424(b) of the Rules and Regulations; and "Rule 462(b)
Registration Statement" means the registration statement and any amendments
thereto filed pursuant to Rule 462(b) of the Rules and Regulations relating
to the offering covered by the initial Registration Statement (file number
333-45859). Reference made herein to any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act, as of the date of such Preliminary Prospectus or the
Prospectus, as the case may be. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus, any
further amendments or supplements to the Registration Statement or the
Prospectus and any Rule 462(b) Registration Statement will, when they
become effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the Securities Act
and the Rules and Regulations and do not and will not, as of the applicable
Effective Time (as to the Registration Statement and any amendment thereto)
and as of the applicable filing date (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
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misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Lead Managers or the Representatives
by or on behalf of any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission, conformed in all material respects to
the requirements of the Securities Exchange Act of 1934 (the "Exchange
Act") and the rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
(d) The Company, each of the Premier Subsidiaries and, as of the First
Delivery Date, each of the Six Flags Subsidiaries have been or will be, as
applicable, duly incorporated and are or will be, as applicable, validly
existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation; each of the Premier Partnerships
and, as of the First Delivery Date, each of the Six Flags Partnerships (as
defined in Section 15) is or will be, as applicable, validly existing as a
limited partnership in good standing under the laws of their respective
jurisdictions of formation; the Company, each of the Premier Subsidiaries
and each of the Premier Partnerships and, as of the First Delivery Date,
each of the Six Flags Subsidiaries and each of the Six Flags Partnerships
are or will be, as applicable, duly qualified to do business and are or
will be, as applicable, in good standing as foreign entities in each
jurisdiction in which their respective ownership or lease of property or
the conduct of their respective businesses requires or will require, as
applicable, such qualification, except where the failure to so qualify
would not have in the aggregate a material adverse effect on the
consolidated financial position, stockholders' equity (or partners' equity,
as applicable), results of operations, business or prospects of the Company
and the Subsidiaries taken as a whole (a "Material Adverse Effect") and
have or will have, as applicable, all corporate or partnership power and
authority, as the case may be, necessary to own or hold their respective
properties and to conduct the businesses in which they
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are or will be, as applicable, engaged; none of the subsidiaries (as
defined in Rule 405 of the Rules and Regulations) of the Company (other
than the Subsidiaries) is a "significant subsidiary", as such term is
defined in Rule 405 of the Rules and Regulations; and the assets,
liabilities and operations of such other subsidiaries are immaterial to the
assets, liabilities, operations and prospects of the Company and the
Subsidiaries taken as a whole.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform in all material respects to the description
thereof contained in the Prospectus. All of the issued shares of capital
stock of each Premier Subsidiary (in the case of Walibi, S.A.
("Walibi"), a Belgian corporation, to our knowledge) have been, and all
of the issued shares of capital stock of each Six Flags Subsidiary, as
of the First Delivery Date, will be, duly and validly authorized and
issued and are or will be, as applicable, fully paid and non-assessable
and, except for the capital stock of Walibi that is subject to the
Walibi Tender Offer (as defined in Section 1(ai)), are or will be, as
applicable, owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims except for liens,
encumbrances, equities or claims arising under the Credit Facilities and
the subordinated indemnity agreement among the Company and certain of
its affiliates, SFEC and certain of its affiliates and Time Warner Inc.
and certain of its affiliates dated , 1998 (the
"Subordinated Indemnity Agreement"). 100% of the partnership interest in
the Premier Partnerships is held and, as of the First Delivery Date,
100% of the partnership interest in the Six Flags Partnerships, except
for the 40% general partnership interest in San Antonio Theme Park, L.P.
("Fiesta Partnership") held by Fiesta Texas Theme Park, Ltd., the 99%
limited partnership interest in Six Flags Over Xxxxxxx XX, L.P. (the
"Georgia Co-Venture 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
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applicable, held directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims except for liens, encumbrances,
equities or claims under the Credit Facilities and the Co-Venture Parks
Agreements (as defined in Section 15).
(f) The unissued shares of the Stock to be issued and sold by the
Company to the International Managers hereunder and to the U.S.
Underwriters under the U.S. Underwriting Agreement have been duly and
validly authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid and
non-assessable.
(g) This Agreement and the U.S. Underwriting Agreement have been duly
authorized, executed and delivered by the Company, each of the Premier
Subsidiaries and each of the Premier Partnerships that is a party hereto or
thereto, and, as of the First Delivery Date, will be duly authorized,
executed and delivered by each of the Six Flags Subsidiaries that is a
party hereto or thereto.
(h) The execution, delivery and performance of this Agreement and the
U.S. Underwriting Agreement by the Company and each of the Subsidiaries
that are parties hereto or thereto, and the consummation of the
transactions contemplated hereby and thereby, will not conflict with or
result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of
the Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of the
Company or any of the Subsidiaries is subject, nor will such actions result
in any violation of the provisions of the charter or by-laws or other
constitutive documents of the Company or any of the Subsidiaries or,
assuming that all consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state and foreign securities laws in connection with the purchase and
distribution of the Stock by the International Managers and the U.S.
Underwriters are obtained, any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their properties or assets
except,
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in each case, breaches, violations or defaults which, in the aggregate, are
not reasonably likely to have a Material Adverse Effect; and except for the
registration of the Stock under the Securities Act and such consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state and foreign securities
laws in connection with the purchase and distribution of the Stock by the
International Managers and the U.S. Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required or, with respect to the Six
Flags Subsidiaries will be required, for the execution, delivery and
performance of this Agreement or the U.S. Underwriting Agreement by the
Company or any of the Subsidiaries that are parties hereto or thereto and
the consummation of the transactions contemplated hereby and thereby.
(i) Except as disclosed in the Prospectus and as to those rights which
have been duly and validly waived, there are no contracts, agreements or
understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(j) The Company has not sold or issued any shares of Common Stock
during the six-month period preceding the date of the Prospectus, including
any sales pursuant to Rule 144A under, or Regulations D or S of, the
Securities Act, other than (i) 121,671 shares issued pursuant to the
Company's acquisition of all of the membership interests of KKI, LLC on
November 7, 1997, (ii) 228,855 shares 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
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compensation plans or pursuant to outstanding options, rights or warrants,
which, in each case, are disclosed in the Prospectus.
(k) Neither the Company nor any of the Subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any loss or interference with its business from fire,
explosion, flood, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
except losses or interferences which will not, in the aggregate, have a
Material Adverse Effect; and, since such date, there has not been any
change in the capital stock other than in connection with the Premier
Merger (as defined in Section 1(ag)) or long-term debt of the Company or
any of the Subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders' equity (or
partners' equity, as applicable) or results of operations of the Company
and its Subsidiaries, otherwise than as set forth or contemplated in the
Prospectus.
(l) The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles in the United States (or, in
the case of Walibi, generally accepted accounting principles in Belgium)
applied on a consistent basis throughout the periods involved, and, in the
case of Walibi, have been reconciled to accounting principles generally
accepted in the United States to the extent 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
9
to historical amounts in the compilation of such pro forma financial
statements.
(m) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, Ernst & Young LLP, who have certified certain
financial statements of SFEC, Coopers & Xxxxxxx, who have certified certain
financial statements of Walibi and Xxxxxxxxx Xxxxxxxx & Xxxxxxxx, who have
certified certain financial statements of Kentucky Kingdom, Inc. ("Kentucky
Kingdom") whose reports appear in the Prospectus or are incorporated by
reference therein and who have each delivered the respective initial
letters referred to in Section 7(h) hereof, are independent public
accountants as required by the Securities Act and the Rules and
Regulations.
(n) The Company and each of the Subsidiaries (in the case of Walibi, to
our knowledge) have good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by
them, in each case free and clear of all liens, encumbrances and defects
except for such liens arising under the Credit Facilities or contemplated
in Section 1(e) hereof as are described in the Prospectus or such as would
not have a Material Adverse Effect; and all real property and buildings
held under lease by the Company and the Subsidiaries are held by them under
valid, subsisting and enforceable leases, with such exceptions as would not
have a Material Adverse Effect.
(o) The Company and each of the Subsidiaries (in the case of Walibi, to
our knowledge) carry, or are covered by insurance in such amounts and
covering such risks (including the risk of earthquakes) as the Company has
reasonably concluded, based on its experience, is adequate for the conduct
of their respective businesses and the value of their respective properties
and as is 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
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Agreement among certain affiliates of Warner Bros., SFTP and the Company
dated February 9, 1998 (the "License Agreement"), as contemplated by the
Prospectus, and have no reason to believe that the conduct of their
respective businesses will conflict with, and have not received any notice
of any claim of conflict with, any such rights of others with such
exceptions as would not have a Material Adverse Effect.
(q) Except as otherwise disclosed in the Prospectus, there are no legal
or governmental proceedings pending to which the Company or any of the
Subsidiaries is a party or of which any property or assets of the Company
or any of the Subsidiaries is the subject which, if determined adversely to
the Company or any of the Subsidiaries, might have a Material Adverse
Effect or are otherwise required to be disclosed in the Prospectus; and to
the best of the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(r) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have
not been described in the Prospectus or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by
the Rules and Regulations.
(t) No relationship, direct or indirect, exists between or among the
Company or any Subsidiary on the one hand, and the directors, officers,
stockholders, 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
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respects with all presently and then applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred or, with respect to
SFEC, as of the First Delivery Date will have occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company or SFEC, as
applicable, would have any material liability; the Company has not incurred
and, as of the First Delivery Date, SFEC will not have incurred and neither
the Company expects nor SFEC, as of the First Delivery Date, will expect to
incur material liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412
or 4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretations thereunder (the "Code"); and each
"pension plan" for which the Company or SFEC, as applicable, would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred or, with
respect to SFEC, as of the First Delivery Date, will have occurred whether
by action or by failure to act, which might reasonably be expected to cause
the loss of such qualification.
(w) The Company and each of the Subsidiaries (in the case of Walibi, to
our knowledge) are in compliance in all respects with (i) all presently
applicable provisions of the Occupational Safety and Health Act of 1970, as
amended, including all applicable regulations thereunder and (ii) all
presently applicable state and local laws and regulations relating to the
safety of its theme park and water park operations, with such exceptions as
would not have a Material Adverse Effect.
(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
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payable as of the First Delivery Date, as applicable, without penalty or
interest and no tax deficiency has been determined adversely to the Company
or any of the Subsidiaries which has had, nor does the Company have any
knowledge of any tax deficiency which, if determined adversely to the
Company or any of the Subsidiaries, might be reasonably expected to have, a
Material Adverse Effect.
(y) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, the Company has not (i) issued or granted any securities or
(ii) declared or paid any dividend on its capital stock, and neither the
Company nor any of its Subsidiaries has (i) incurred any material liability
or obligation, direct or contingent, other than liabilities and obligations
which were incurred in the ordinary course of business or (ii) entered into
any material transaction not in the ordinary course of business other than
the Six Flags Acquisition.
(z) The Company and each of its Subsidiaries (in the case of Walibi, to
our knowledge) (i) make and keep accurate books and records and (ii)
maintain internal accounting controls sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to
permit preparation of their financial statements in conformity with
generally accepted accounting principles in the United States (or, in the
case of Walibi, generally accepted accounting principles in Belgium) and to
maintain accountability for their assets, (C) access to their assets is
permitted only in accordance with management's authorization and (D) the
recorded accountability for their assets is compared with existing assets
at reasonable intervals.
(aa) Neither the Company nor any of the Subsidiaries (in the case of
Walibi, to our knowledge) (i) is in violation of its charter or by-laws (or
its partnership agreement, as applicable), (ii) is in 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
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or other material agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject or
(iii) is in violation in any material respect of any material law,
ordinance, governmental rule, regulation or court decree to which it or its
property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of
its business.
(ab) Neither the Company nor any of the Subsidiaries (in the case of
Walibi, to our knowledge), nor, to its knowledge, any director, officer,
agent, employee or other person associated with or acting on behalf of the
Company or any of the Subsidiaries, has used any corporate or partnership
funds for any unlawful contribution, gift, entertainment or other unlawful
expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee
from corporate funds; violated or is in violation of any provision of the
Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(ac) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of
the Subsidiaries (in the case of Walibi, to our knowledge) (or, to the
knowledge of the Company, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the
Company or the Subsidiaries in violation of any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or remedial
action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial
actions, a Material Adverse Effect; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to
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or caused by the Company or any of the Subsidiaries or with respect to
which the Company or any of the Subsidiaries have knowledge, except for any
such spill, discharge, leak, emission, injection, escape, dumping or
release which would not have or would not be reasonably likely to have,
singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, a Material Adverse
Effect; and the terms "hazardous wastes", "toxic wastes", "hazardous
substances" and "medical wastes" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(ad) Neither the Company nor any Subsidiary is an "investment company"
within the meaning of such term under the Investment Company Act of 1940
and the rules and regulations of the Commission thereunder.
(ae) At the First Delivery Date, (i) the Six Flags Acquisition shall be
consummated in accordance with the terms of the Agreement and Plan of
Merger dated February 9, 1998 among the Company, Premier Operations,
Premier Parks Merger Corporation, PPStar I, Inc., SFEC and the Sellers (the
"Merger Agreement"), and without any material waiver of any of the
conditions precedent to any of the parties' obligations under the Merger
Agreement, (ii) each of the concurrent offerings by the Company of the
Company Senior Discount Notes, the Company Senior Notes and the PInES shall
be consummated, (iii) the offering by SFEC of the New SFEC Notes shall be
consummated immediately following the Offering, (iv) each of the Credit
Facilities shall be in effect and available 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
15
Facilities or (D) the Stock Purchase Agreement dated December 15, 1997
between Premier Operations (or a to be formed Belgian corporation) and
Centrag, S.A., Xxxxxx N.V. and Westkoi N.V. (the "Walibi Agreement").
(af) The statements set forth in the Prospectus under the captions
"Business--Licenses", "Business--Intercompany Services Agreement",
"Business--Tax Sharing Agreement", "Description of Six Flags Agreement",
"Description of Indebtedness" and "Description of Securities", insofar as
they describe the terms of the agreements and securities referred to
therein, are accurate and fairly present the information required to be
shown.
(ag) The merger (the "Premier Merger") of the company formerly known as
Premier Parks Inc. with a wholly owned subsidiary of Premier Parks Holdings
Corporation has been effected, and, in connection therewith, no stockholder
vote was required under applicable Delaware law and the Premier Merger
otherwise complies in all respects with the General Corporation Law of the
State of Delaware.
(ah) No stockholder vote is required under applicable Delaware law in
connection with the Six Flags Acquisition, and the Six Flags Acquisition
otherwise complies in all respects with the General Corporation Law of the
State of Delaware.
(ai) The Company has effected the Walibi Acquisition and has commenced
a tender offer (the "Walibi Tender Offer") for the remainder of the
outstanding capital stock of Walibi as described in the Prospectus.
(aj) On or prior to the First Delivery Date, the License Agreement, the
Subordinated Indemnity Agreement, the Intercompany Services Agreement and
the Tax Sharing Agreement shall have been entered into by the parties
thereto with the provisions described in the Prospectus.
2. Purchase of the Stock by the International Managers. 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 2,600,000 shares of
the Firm Stock to the several International Managers and each of the
International Managers, severally and not jointly, agrees
16
to purchase the number of shares of the Firm Stock set opposite that
International Manager's name in Schedule 1 hereto.
In addition, the Company grants to the International Managers an option
to purchase up to 390,000 shares of Option Stock. Such option is granted solely
for the purpose of covering over-allotments in the sale of Firm Stock and is
exercisable as provided in Section 4 hereof. Shares of Option Stock shall be
purchased severally and not jointly for the account of the International
Managers in proportion to the number of shares of Firm Stock set opposite the
name of such International Managers in Schedule 1 hereto. The respective
purchase obligations of each International Manager with respect to the Option
Stock shall be adjusted by the Lead Managers so that no International Manager
shall be obligated to purchase Option Stock other than in 100 share amounts. The
price of both the Firm Stock and any Option Stock shall be $ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein and in the U.S. Underwriting
Agreement.
3. Offering of Stock by the International Managers.
Upon authorization by the Lead Managers of the release of the Firm
Stock, the several International Managers propose to offer the Firm Stock for
sale upon the terms and conditions set forth in the Prospectus.
Each International Manager agrees that, except to the extent
permitted by the Agreement Between U.S. Underwriters and International Managers,
it will not offer or sell any of the Stock outside of the United States and
Canada.
4. Delivery of and Payment for the Stock. Delivery of and payment for
the Firm Stock shall be made at the office of Cravath, Swaine & Xxxxx, Worldwide
Plaza, 000 Xxxxxx Xxxxxx, Xxx Xxxx, XX 00000, at 10:00 A.M., New York City time,
on the fourth full business day following the date of this Agreement or at such
other date or place as shall be determined by agreement between the Lead
Managers and the
17
Company. This date and time are sometimes referred to as the "First Delivery
Date." On the First Delivery Date, the Company shall deliver or cause to be
delivered certificates representing the Firm Stock to the Lead Managers for the
account of each International Manager 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
International Manager or U.S. Underwriter) and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligations
of each International Manager hereunder. Upon delivery, the Firm Stock shall be
registered in such names and in such denominations as the Lead Managers shall
request in writing not less than two full business days prior to the First
Delivery Date. For the purpose of expediting the checking and packaging of the
certificates for the Firm Stock, the Company shall make the certificates
representing the Firm Stock available for inspection by the Lead Managers in New
York, New York, not later than 2:00 P.M., New York City time, on the business
day prior to the First Delivery Date.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Lead Managers. Such notice shall set forth the
aggregate number of shares of Option Stock as to which the option is being
exercised, the names in which the shares of Option Stock are to be registered,
the denominations in which the shares of Option Stock are to be issued and the
date and time, as determined by the Lead Managers, when the shares of Option
Stock are to be delivered; provided, however, that this date and time shall not
be earlier than the First Delivery Date nor earlier than the second business day
after the date on which the option shall have been exercised nor later than the
third business day after the date on which the option shall have been exercised.
The date and time the shares of Option Stock are delivered are sometimes
referred to as the "Second Delivery Date" and the First Delivery Date and the
Second Delivery Date are sometimes each referred to as a "Delivery Date".
Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Lead Managers
and the Company) at 10:00 A.M., New York City time, on the Second
18
Delivery Date. On the Second Delivery Date, the Company shall deliver or cause
to be delivered the certificates representing the Option Stock to the Lead
Managers for the account of each International Manager 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 International Manager or U.S. Underwriter), and delivery at the
time and place specified pursuant to this Agreement is a further condition of
the obligations of each International Manager hereunder. Upon delivery, the
Option Stock shall be registered in such names and in such denominations as the
Lead Managers shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the Option Stock,
the Company shall make the certificates representing the Option Stock available
for inspection by the Lead Managers in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the Second Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Lead Managers
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 Lead
Managers, 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 Lead Managers 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 Lead Managers of such filing; to
advise the Lead Managers, 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
19
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Lead Managers and to
counsel for the International Managers 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 Lead Managers such number of the
following documents as the Lead Managers shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission, each amendment thereto (in each case excluding exhibits other
than this Agreement and the computation of per share earnings) and any Rule
462(b) Registration Statement, (ii) each Preliminary Prospectus, the
Prospectus and any amended or supplemented Prospectus and (iii) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Stock or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Securities Act or the Exchange
Act, to notify the Lead Managers and, upon their request, to file such
document and to prepare and furnish without charge to each International
Manager and
20
to any dealer in securities as many copies as the Lead Managers 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 Lead Managers,
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 Lead Managers and counsel for
the International Managers and obtain the consent of the Lead Managers to
the filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days after the
end of the Company's current fiscal quarter), to make generally available
to the Company's security holders and to deliver to the Lead Managers 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 Lead Managers copies of all materials furnished by the Company to
its public shareholders and all public reports and all reports and
financial statements furnished by the Company to the principal national
securities exchange upon which the Common Stock may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the Lead Managers
may reasonably request to qualify the Stock for offering and sale (or
obtain an exemption from registration) under the securities laws of such
jurisdictions as the Lead Managers may request and to comply with such laws
so as to permit the continuance of
21
sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Stock; provided, however,
that the Company shall not be required to qualify as a foreign corporation
or a dealer in securities or to execute a general consent to service of
process in any jurisdiction in any action other than one arising out of the
offering or sale of the Stock;
(i) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, (i) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to,
or could be expected to, result in the disposition by any person at any
time in the future of) any shares of Common Stock or any securities
convertible into or exchangeable for Common Stock (other than the Stock,
the U.S. Stock, the PInES, the Mandatorily Convertible Preferred Stock, the
Seller Depositary Shares, the Seller Convertible Redeemable Preferred
Stock, shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans existing on the date
hereof or pursuant to currently outstanding options, warrants or rights or
upon the conversion of the Seller Convertible Redeemable Preferred Stock or
the Mandatorily Convertible Preferred Stock, and other than shares issued
by the Company as consideration to any seller of assets or stock that the
Company or any of the Subsidiaries is acquiring, provided that any shares
so issued to such seller or sellers, including any shares issued after the
date of the Prospectus pursuant to the Walibi Acquisition or the Walibi
Tender Offer, in the aggregate, do not exceed one-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 Lead Managers 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
22
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 Lead Managers,
prior to the First Delivery Date, a letter or letters, in form and
substance satisfactory to counsel for the Underwriters, pursuant to which
each such person shall agree not to, directly or indirectly, (iii) offer
for sale, sell, pledge or otherwise dispose of (or enter into any
transaction or device which is designed to, or could be expected to, result
in the disposition by any person at any time in the future of) any shares
of Common Stock or any securities convertible into or exchangeable for
Common Stock or (iv) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock, whether any
such transaction described in clause (iii) or (iv) above is to be settled
by delivery of Common Stock or other securities, in cash or otherwise, in
each case for a period of 90 days from the date of the Prospectus, without
the prior written consent of Xxxxxx Brothers Inc.;
(j) To take such steps as shall be necessary to ensure that neither the
Company nor any subsidiary shall become an "investment company" within the
meaning of such term under the Investment Company Act of 1940 and the rules
and regulations of the Commission thereunder;
(k) To cause an authorized officer to execute this Agreement on behalf
of each of the Six Flags Subsidiaries on the First Delivery Date;
(l) Not to waive the lock-up agreements executed by the Sellers in
connection with the Six Flags Acquisition whereby each of the Sellers
agreed to not sell any Seller Convertible Redeemable Preferred Stock
23
(or shares of Common Stock issuable upon conversion thereof) during the
period of 90 days from the date of the Prospectus, without the prior
written consent of Xxxxxx Brothers Inc.; and
(m) To make an offer to purchase the SFTP Senior Subordinated Notes
following the Six Flags Acquisition in accordance with the provisions of
the indenture for the SFTP Senior Subordinated Notes relating to offers to
purchase the SFTP Senior Subordinated Notes upon a change of control of
SFTP.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Stock and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of producing and distributing this Agreement, the U.S. Underwriting
Agreement, the Agreement Between U.S. Underwriters and International Managers,
the Agreement Among International Managers, the International Selling Agreement
and any other related documents in connection with the offering, purchase, sale
and delivery of the Stock; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of sale of the Stock; (f) listing or other fees incident to the
inclusion of the Common Stock (including the Stock) for listing on the New York
Stock Exchange; (g) the fees and expenses, if applicable, of qualifying the
Stock under the securities laws of the several jurisdictions as provided in
Section 5(h) and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters or foreign
counsel to the International Managers); (h) if one is required pursuant to the
rules of the NASD, all fees and expenses of a qualified independent underwriter;
and (i) all other costs and expenses incident to the performance of the
obligations of the Company or any of the Subsidiaries under this Agreement;
provided that, except as provided in this Section 6 and in Section 11, the
International Managers shall
24
pay their own costs and expenses, including the costs and expenses of their
counsel, any transfer taxes on the Stock which they may sell and the expenses of
advertising any offering of the Stock made by the International Managers.
7. Conditions of International Managers' Obligations. The respective
obligations of the International Managers 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 International Manager or U.S. Underwriter shall have discovered
and disclosed to the Company on or prior to such Delivery Date that the
Registration Statement or the Prospectus or any amendment or supplement
thereto contains an untrue statement of a fact which, in the opinion of
Cravath, Swaine & Xxxxx, counsel for the International Managers, 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 U.S. Underwriting
Agreement, the Stock, the Registration Statement and the Prospectus, and
all other legal matters relating to this Agreement and the transactions
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the International Managers, and the Company shall
have furnished to such counsel all documents and information
25
that they may reasonably request to enable them to pass upon such matters.
(d) Xxxx Marks & Xxxxx LLP shall have furnished to the Lead Managers
its written opinion, as counsel to the Company, addressed to the
International Managers and dated such Delivery Date, in form reasonably
satisfactory to the Lead Managers, 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 businesses in which
they are engaged as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company now outstanding (including the shares of Stock being delivered
on such Delivery Date) have been duly and validly authorized and
issued, are fully paid and non-assessable and conform in all material
respects to the description thereof contained in the Prospectus; all of
the shares of
26
Stock have been duly authorized and, when issued and delivered to the
Lead Managers for the account of each International Manager against
payment therefor as provided herein, shall be validly issued, fully
paid and non-assessable; to such counsel's knowledge, all of the issued
shares of capital stock of each Premier Subsidiary and each Six Flags
Subsidiary have been duly and validly authorized and issued and are
fully paid, non-assessable and, except for the capital stock of Walibi
that is subject to the Walibi Tender Offer, are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims, except for liens, encumbrances, equities or claims
arising under the Credit Facilities and the Subordinated Indemnity
Agreement; and 100% of the partnership interest in each of the Premier
Partnerships and each of the Six Flags Partnerships is held directly or
indirectly by the Company, except for the 40% general partnership
interest in Fiesta Partnership held by Fiesta Texas Theme Park, Ltd.,
the 99% limited partnership interest in the Georgia Co-Venture
Partnership indirectly held by investors in Six Flags Fund, Ltd.
(L.P.), of which approximately 75% are not affiliated with the Company,
and the 99% limited partnership interest in the Texas Co- Venture
Partnership indirectly held by investors in Six Flags Funds II, Ltd.
(L.P.), of which approximately % are not affiliated with the Company,
free and clear of all liens, encumbrances, equities or claims, except
for liens, encumbrances, equities or claims arising under the Credit
Facilities and the Co-Venture Parks Agreements;
(iii) There are no preemptive or other rights to subscribe for or
to purchase, nor any restriction upon the voting or transfer of, any
shares of the Stock pursuant to the Company's charter or by-laws or any
agreement or other instrument known to such counsel;
(iv) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of the Subsidiaries is a party or
of which any property or assets of the Company or any of the
Subsidiaries is the subject which, if determined adversely to the
Company or any of the Subsidiaries, might have a Material Adverse
Effect; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
27
(v) Based solely upon oral confirmation from the staff of the
Commission, the Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion; the
Prospectus was filed with the Commission pursuant to the subparagraph
of Rule 424(b) of the Rules and Regulations specified in such opinion
on the date specified therein and no stop order suspending the
effectiveness of the Registration Statement has been issued and, to the
knowledge of such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(vi) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to such
Delivery Date (other than the financial statements and related
schedules therein and other financial or statistical data included
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Securities
Act and the Rules and Regulations; and the documents incorporated by
reference in the Prospectus (other than the financial statements and
related schedules therein and other financial or statistical data
included therein, as to which such counsel need express no opinion),
when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder;
(vii) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
described or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
(viii) Each of this Agreement and the U.S. Underwriting Agreement
has been duly authorized, executed and delivered by the Company and
each of the Subsidiaries that is a party hereto or thereto;
28
(ix) The issue and sale of the shares of Stock being delivered on
such Delivery Date by the Company and the compliance by the Company and
each of the Subsidiaries that is a party hereto or thereto with all of
the provisions of this Agreement and the U.S. Underwriting Agreement
and the consummation of the transactions contemplated hereby and
thereby (including the offerings of the Company Senior Discount Notes,
the Company Senior Notes and the New SFEC Notes and the entering into
of the Six Flags Credit Facility and any borrowing thereunder in
connection with the Six Flags Acquisition) will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument known to such counsel
to which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Subsidiaries is
subject, nor will such actions result in any violation of the
provisions of the charter or by-laws or other constitutive documents of
the Company or any of the Subsidiaries or, assuming that all consents,
approvals, authorizations, registrations or qualifications as may be
required under the Exchange Act and applicable state or foreign
securities laws in connection with the purchase and distribution of the
Stock by the International Managers and the U.S. Underwriters are
obtained, any Federal or New York State statute, the General
Corporation Law of the State of Delaware, or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of the Subsidiaries or
any of their properties or assets; and, except for the registration of
the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws
in connection with the purchase and distribution of the Stock by the
International Managers, 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,
29
delivery and performance of this Agreement or the U.S. Underwriting
Agreement by the Company or any of the Subsidiaries that is a party
hereto or thereto and the consummation of the transactions contemplated
hereby and thereby; and
(x) To the best of such counsel's knowledge, no holders of
securities of the Company have rights to require the Company to include
such securities with the Stock registered pursuant to the Registration
Statement.
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and that such counsel is not admitted in any state
other than New York; and, in respect of matters of fact, may rely upon
certificates of officers of the Company or the Subsidiaries, provided that
such counsel shall state that it believes that both the International
Managers and it are justified in relying upon such certificates. Such
counsel shall also have furnished to the Lead Managers a written statement,
addressed to the International Managers and dated such Delivery Date, in
form satisfactory to the Lead Managers, 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
30
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 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 Lead Managers
its written opinion, as special counsel to the Company, addressed to the
International Managers and dated such Delivery Date, in form reasonably
satisfactory to the Lead Managers, 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.
31
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 International
Managers and it are justified in relying upon such certificates. Such
counsel shall also have furnished to the Lead Managers a written statement,
addressed to the International Managers and dated such Delivery Date, in
form satisfactory to the Lead Managers, to the effect that (x) such counsel
has acted as counsel to the Company in connection with the Walibi
Acquisition, the Walibi Tender Offer and the Six Flags Acquisition and has
reviewed the information (the "Walibi and Six Flags Information") in the
Registration Statement relating to the Walibi Acquisition, the Walibi
Tender Offer, the Six Flags Acquisition and the business and operations of
Walibi and its subsidiaries and SFEC and its subsidiaries and (y) based on
the foregoing, no facts have come to the attention of such counsel which
lead it to believe that (I) the Registration Statement (other than the
financial statements and other financial and statistical data contained
therein, as to which such counsel need express no belief), as of the
Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus (other than the financial statements and other financial and
statistical data contained therein, as to which such counsel need express
no belief) contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading or (II) any documents incorporated by
reference in the Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which such counsel
need express no belief) when they were filed with the Commission contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
statement may be qualified
32
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 Lead Managers
its written opinion, as special Delaware counsel to the Company, addressed
to the International Managers and dated such Delivery Date, in form
reasonably satisfactory to the Lead Managers, 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 Lead Managers shall have received from Cravath, Swaine & Xxxxx,
counsel for the International Managers, such opinion or opinions and such
statement or statements, dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement, the Prospectus
and other related matters as the Lead Managers 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 Lead Managers shall
have received from (I) KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Lead Managers, addressed to the International
Managers 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
33
hereinafter; (II) Ernst & Young LLP a letter, in form and substance
satisfactory to the Lead Managers, addressed to the International Managers
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 Lead Managers; (III) Coopers & Xxxxxxx a letter, in form and
substance satisfactory to the Lead Managers, addressed to the International
Managers and dated the date hereof (i) confirming that they are independent
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (ii)
stating, as of the date hereof, the conclusions and findings of such firm
with respect to certain financial information and other matters relating to
Walibi and its subsidiaries, as have been previously agreed to by such firm
and the Lead Managers; and (IV) Xxxxxxxxx Xxxxxxxx & Xxxxxxxx a letter, in
form and substance satisfactory to the Lead Managers, addressed to the
International Managers 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 Lead Managers.
(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 Lead Managers concurrently with
the execution of this Agreement (the "initial letters"), the Company shall
have furnished to the Lead Managers a letter (the "bring-down letters") of
each of such accountants, addressed to the International Managers and dated
such Delivery Date (i) confirming that they are independent public
accountants within the
34
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 Lead Managers a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the Company
and each of Premier Operations, SFEC and SFTP in Section 1 are true and
correct as of such Delivery Date; the Company and each of the
Subsidiaries that is a party hereto have complied with all their
agreements contained herein; and the conditions set forth in Sections
7(a) and 7(k) have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue
statement of a material fact and did not omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and (B) since the Effective Date no event has
occurred which should have been set forth in a supplement or amendment
to the Registration Statement or the Prospectus.
(k) Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus there shall not have been
any change in the capital stock (or partners' equity, as applicable) other
than the Premier Merger or long-term debt of the Company or any of the
Subsidiaries or any change, or any
35
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 Lead Managers, so material (to the Company and its Subsidiaries,
taken as a whole) and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Stock being
delivered on such Delivery Date on the terms and in the manner contemplated
in the Prospectus.
(l) Subsequent to the execution and delivery of this Agreement (i) no
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2) of
the Rules and Regulations and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities.
(m) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the Company
on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a
banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several International Managers,
impracticable or inadvisable to proceed with
36
the public offering or delivery of the Stock being delivered on such
Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(n) The Six Flags Acquisition shall have been or shall be consummated
concurrently with the Offering and without any material waiver of any of
the conditions precedent to any of the parties' obligations under the
Merger Agreement.
(o) Each of the offerings by the Company of the Company Senior Discount
Notes, the Company Senior Notes and the PInES shall have been or shall be
consummated concurrently with the Offering.
(p) The offering by SFEC of the New SFEC Notes shall be consummated
immediately following the Offering.
(q) Each of the Premier Credit Facility and the Six Flags Credit
Facility shall be in effect and available for borrowing.
(r) No default or event which, with notice or lapse of time or both,
would constitute such a default shall have occurred and be continuing, or
would result from the transactions contemplated hereby to occur prior to,
concurrently with or immediately following the consummation of the
Offering, under (i) the Merger Agreement, (ii) the indentures relating to
any of the Company Senior Discount Notes, the Company Senior Notes, the
1995 Premier Notes, the 1997 Premier Notes, the SFEC Zero Coupon Notes, the
SFTP Senior Subordinated Notes and the New SFEC Notes, (iii) the credit
agreement relating to either the Premier Credit Facility or the Six Flags
Credit Facility or (iv) the Walibi Agreement.
(s) The Premier Merger shall have been consummated.
(t) Each of (i) the License Agreement, (ii) the Subordinated Indemnity
Agreement, (iii) the Intercompany Services Agreement and (iv) the Tax
Sharing Agreement shall have been entered into by the parties thereto with
the provisions described in the Prospectus.
(u) An authorized officer shall have executed this Agreement on behalf
of each of the Six Flags Subsidiaries.
37
(v) Delivery of and payment for the Firm Stock under the U.S.
Underwriting Agreement shall have occurred concurrently with delivery of
and payment for the Firm Stock hereunder on the First Delivery Date.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and scope reasonably
satisfactory to counsel for the International Managers.
8. Indemnification and Contribution.
(a) The Company and the Subsidiaries that are parties hereto, jointly
and severally, shall indemnify and hold harmless each International Manager
(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 International Manager within the meaning
of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including,
but not limited to, any loss, claim, damage, liability or action relating
to purchases and sales of Stock), to which that International Manager,
officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, (i) any untrue statement or
alleged untrue statement of a material fact contained (A) in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in
any amendment or supplement thereto or (B) in any blue sky application or
other document prepared or executed by the Company (or based upon any
written information furnished by the Company) specifically for the purpose
of qualifying any or all of the Stock under the securities laws of any
jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement
or the Prospectus, or in any amendment or supplement thereto, or in any
Blue Sky Application any material fact required to be stated therein or
necessary to make the statements therein not misleading or (iii) any act or
failure to act or any alleged act or failure to act by any International
Manager in connection with, or relating in any manner to, the Stock or the
Offering contemplated hereby, and which is included as
38
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
International Manager through its gross negligence or willful misconduct),
and shall reimburse each International Manager and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that International Manager, officer,
employee or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Company and the Subsidiaries that are parties hereto shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application, in
reliance upon and in conformity with written information concerning any
International Manager or U.S. Underwriter, furnished to the Company through
the Lead Managers or Representatives by or on behalf of any International
Manager or U.S. 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 International
Manager from whom the person asserting any such losses, claims, damages or
liabilities purchased the Stock concerned if, to the extent that such sale
was an initial sale by such International Manager and any such loss, claim,
damage or liability of such International Manager is a result of the fact
that both (A) a copy of the Prospectus was not sent or given to such person
at or prior to the written confirmation of the sale of such Stock to such
person, and (B) the untrue statement or omission in the Preliminary
Prospectus was corrected in the Prospectus unless, in either case, such
failure to deliver the Prospectus was a result of noncompliance by the
Company with Section 5(c). The foregoing indemnity agreement is in addition
to any liability which the Company or any of the Subsidiaries that are
parties hereto may otherwise have to any
39
International Manager or to any officer, employee or controlling person of
that International Manager.
(b) Each International Manager, 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 untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information concerning such International
Manager furnished to the Company through the Lead Managers by or on behalf
of that International Manager 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 International Manager 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
40
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 Lead
Managers shall have the right, upon written notice to the Company, to
employ counsel to represent jointly the Lead Managers and those other
International Managers and their respective officers, employees and
controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the International
Managers against the Company and the Subsidiaries that are parties hereto
under this Section 8 if, in the reasonable judgment of the Lead Managers,
it is advisable for the Lead Managers and those International Managers,
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
41
(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 International Managers on the other
from the offering of the Stock or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Subsidiaries
that are parties hereto on the one hand and the International Managers 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 International Managers on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company on the one hand, and
the total underwriting discounts and commissions received by the
International Managers with respect to the shares of the Stock purchased
under this Agreement, on the other hand, bear to the total gross proceeds
from the offering of the shares of the Stock under this Agreement, in each
case as set forth in the
42
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 International
Managers, 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 International Managers 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 International Managers
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 International Manager shall be required to contribute any
amount in excess of the amount by which the total price at which the Stock
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such International Manager 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 International
Managers' obligations to contribute as provided in this Section 8(d) are
several in proportion to their respective underwriting obligations and not
joint.
(e) The International Managers severally confirm and the Company and
the Subsidiaries that are parties hereto acknowledge that the statements
with respect to the public offering of the Stock by the International
Managers set forth in the first and last paragraphs on the cover page of,
the
43
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 International Managers furnished in writing to the Company
by or on behalf of the International Managers specifically for inclusion in
the Registration Statement and the Prospectus.
9. Defaulting International Managers.
If, on either Delivery Date, any International Manager defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting International Managers shall be obligated to purchase the
Stock which the defaulting International Manager agreed but failed to
purchase on such Delivery Date in the respective proportions which the
number of shares of the Firm Stock set opposite the name of each remaining
non-defaulting International Manager in Schedule 1 hereto bears to the
total number of shares of the Firm Stock set opposite the names of all the
remaining non-defaulting International Managers in Schedule 1 hereto;
provided, however, that the remaining non-defaulting International Managers
shall not be obligated to purchase any of the Stock on such Delivery Date
if the total number of shares of the Stock which the defaulting
International Manager or International Managers agreed but failed to
purchase on such date exceeds 9.09% of the total number of shares of the
Stock to be purchased on such Delivery Date, and any remaining
non-defaulting International Manager shall not be obligated to purchase
more than 110% of the number of shares of the Stock which it agreed to
purchase on such Delivery Date pursuant to the terms of Section 2. If the
foregoing maximums are exceeded, the remaining non-defaulting International
Managers, or those other underwriters satisfactory to the Lead Managers who
so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Stock to be
purchased on such Delivery Date. If the remaining International Managers or
other underwriters satisfactory to the Lead Managers do not elect to
purchase the shares which the defaulting International Manager or
International Managers agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the
obligation of the International Managers to purchase, and of the Company to
sell, the Option Stock) shall terminate without liability on the part of
any non-defaulting International Manager or the Company, except that the
Company will continue to be liable
44
for the payment of expenses to the extent set forth in Section 6. As used
in this Agreement, the term "International Manager" 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
Stock which a defaulting International Manager agreed but failed to
purchase.
Nothing contained herein shall relieve a defaulting International
Manager of any liability it may have to the Company for damages caused by
its default. If other underwriters are obligated or agree to purchase the
Stock of a defaulting or withdrawing International Manager, either the Lead
Managers 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 International Managers may be necessary
in the Registration Statement, the Prospectus or in any other document or
arrangement.
10. Termination. The obligations of the International Managers
hereunder may be terminated by the Lead Managers by notice given to and
received by the Company prior to delivery of and payment for the Firm Stock
if, prior to that time, any of the events described in Sections 7(k), 7(l)
or 7(m) shall have occurred or if the International Managers shall decline
to purchase the Stock for any reason permitted under this Agreement.
11. Reimbursement of International Managers' Expenses. If the Company
shall fail to tender the Stock for delivery to the International Managers
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 International Managers' obligations hereunder required to
be fulfilled by the Company is not fulfilled (other than by reason of any
events described in Section 7(m) except for the suspension of trading or
minimum prices of the securities of the Company), the Company will
reimburse the International Managers for all reasonable out-of-pocket
expenses (including fees and disbursements of counsel) incurred by the
International Managers in connection with this Agreement and the proposed
purchase of the Stock, and promptly following demand the Company shall pay
the full amount thereof to the Lead Managers. If this Agreement is
terminated pursuant to Section 9 by reason of the default of one or more
International Managers, the Company shall not be
45
obligated to reimburse any defaulting International Manager on account of
those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the International Managers, shall be delivered or sent by
mail, telex or facsimile transmission to Xxxxxx Brothers International
(Europe), Three World Financial Center, New York, New York 10285,
Attention: Syndicate Department (Fax: 000-000-0000), with a copy, in
the case of any notice pursuant to Section 8(c), to the Director of
Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 0
Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000;
(b) if to the Company or any of the Subsidiaries, shall be
delivered or sent by mail, telex or facsimile transmission to 000 Xxxx
00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxx X. Xxxxx
(Fax: 000-000-0000);
provided, however, that any notice to an International Manager pursuant to
Section 8(c) shall be delivered or sent by mail, telex or facsimile
transmission to such International Manager at its address set forth in its
acceptance telex to the Lead Managers, which address will be supplied to
any other party hereto by the Lead Managers 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
International Managers by Xxxxxx Brothers International (Europe) on behalf
of the Lead Managers.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the International Managers, the
Company, the Subsidiaries that are parties hereto and their respective
successors. This Agreement and the terms and provisions hereof are for the
sole benefit of only those persons, except that (A) the representations,
warranties, indemnities and agreements of the Company and the applicable
Subsidiaries contained in this Agreement shall also be deemed to be for the
benefit of the officers and employees of each International Manager and the
person or persons, if any, who control any International Manager within the
meaning of Section 15 of the Securities Act
46
and for the benefit of each U.S. Underwriter (and officers, employees and
such controlling persons thereof) who offers or sells any shares of Common
Stock in accordance with the terms of the Agreement Between U.S.
Underwriters and International Managers and (B) the indemnity agreement of
the International Managers 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
International Managers contained in this Agreement or made by or on behalf
of them, respectively, pursuant to this Agreement, shall survive the
delivery of and payment for the Stock and shall remain in full force and
effect, regardless of any investigation made by or on behalf of any of them
or any person controlling any of them.
15. Definition of the Terms "Business Day", "Premier Subsidiary",
"Premier Partnership", "Six Flags Subsidiary", "Six Flags Partnership",
"Subsidiary" and "Co-Venture Parks Agreements". For purposes of this
Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading, (b) "Premier Subsidiary" means each of
Premier Operations, Walibi, Funtime Parks, Inc., an Ohio corporation,
Funtime, Inc., an Ohio corporation, Wyandot Lake, Inc., an Ohio
corporation, Darien Lake Theme Park and Camping Resort, Inc., a New York
corporation, Tierco Maryland, Inc., a Delaware corporation, Tierco Water
Park, Inc., an Oklahoma corporation, Frontier City Properties, Inc., an
Oklahoma corporation, Stuart Amusement Company, a Massachusetts
corporation, Premier Waterworld Concord Inc., a California corporation,
Premier Waterworld Sacramento Inc., a California corporation, Premier Parks
of Colorado Inc., a Colorado corporation, Great Escape Holding Inc., a New
York corporation, Great Escape LLC, a New York limited liability company,
Great Escape Theme Park LLC, a New York limited liability company,
Riverside Park Enterprises, Inc., a Massachusetts corporation, Riverside
Park
47
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 "Subsidiary" shall include
the Six Flags Subsidiaries and the Six Flags Partnerships only as of and
after the First Delivery
48
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 International Managers,
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.
Xxxxxx Xxxx LLC
NationsBanc Xxxxxxxxxx Securities LLC
For themselves and as Lead Managers
of the several International Managers named
in Schedule 1 hereto
By Xxxxxx Brothers International (Europe)
By --------------------------------------
Authorized Representative
51
SCHEDULE 1
Number
Underwriters of Firm Shares
------------ --------------
Xxxxxx Brothers International (Europe)............
Xxxxx Xxxxxx Inc..................................
Xxxxxx Xxxx LLC...................................
NationsBanc Xxxxxxxxxx Securities LLC.............
----------
Total.......................................
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