EXECUTION COPY
PREMIER PARKS INC.
$430,000,000 9 3/4% Senior Notes due 2007
UNDERWRITING AGREEMENT
June 24, 1999
Lehman Brothers Inc.
Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
ING Baring Furman Selz LLC
Allen & Company Incorporated
BNY Capital Markets, Inc.
c/o Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Dear Sirs:
Premier Parks Inc., a Delaware corporation (the "Company"), proposes
to sell to the several Underwriters (the "Offering") named on Schedule 1 hereto
(the "Underwriters") $430,000,000 9 3/4% Senior Notes due 2007 of the Company
(the "Notes"). The Notes are to be issued under an indenture, to be entered into
and to be dated as of June 30, 1999 (the "Indenture"), between the Company and
The Bank of New York, as Trustee.
1. Representations, Warranties and Agreements of the Company and
Certain of the Subsidiaries. The Company, Premier Parks Operations Inc.
("Premier Operations") and Six Flags Theme Parks Inc. ("SFTP") represent,
warrant and agree, jointly and severally, that:
(a) A registration statement on Form S-3 (file number 333-76595),
and amendments thereto, with respect to the Notes has (i) been prepared by
the Company in conformity in all material respects with the requirements
of the Securities Act of
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1933 (the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. Copies
of such registration statement and amendments thereto have been delivered
by the Company to you as the Underwriters. Upon your written request, but
not without your agreement, the Company will also file a Rule 462(b)
Registration Statement in accordance with Rule 462(b). As used in this
Agreement, "Effective Time" means the date and the time as of which such
registration statement, the most recent post-effective amendment thereto,
if any, or any Rule 462(b) Registration Statement became or becomes
effective; "Effective Date" means the date of the Effective Time;
"Preliminary Prospectus" means each prospectus included in such
registration statement, or amendments thereof, before it became effective
under the Securities Act and any prospectus relating to the Notes filed
with the Commission by the Company with the consent of the Underwriters
pursuant to Rule 424(a) or Rule 424(b) of the Rules and Regulations;
"Registration Statement" means such registration statement, as amended at
the Effective Time, including any documents incorporated by reference
therein at such time and all information contained in the final prospectus
relating to the Notes filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations in accordance with Section 5(a) hereof and
deemed to be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations and,
in the event any Rule 462(b) Registration Statement becomes effective
prior to the First Delivery Date (as defined in Section 4), 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 333-76595). 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
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statements therein not misleading; provided that no representation or
warranty is made as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company by 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 and each of the Subsidiaries (as defined in Section
15) which is a corporation 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 Subsidiaries which
is a partnership is validly existing as a limited partnership in good
standing under the laws of its jurisdiction of formation; each of the
Subsidiaries which is a limited liability company is validly existing as a
limited liability company in good standing under the laws of its
jurisdiction of formation; the Company and each of the Subsidiaries are
duly qualified to do business and are in good standing as foreign entities
in each jurisdiction in which their respective ownership or lease of
property or the conduct of their respective businesses requires such
qualification, except where the failure to so qualify would not have in
the aggregate a material adverse effect on the consolidated financial
position, stockholders' equity (or partners' equity, as applicable),
results of operations, business or prospects of the Company and the
Subsidiaries taken as a whole (a "Material Adverse Effect") and have all
corporate, partnership or equivalent power and authority, as the case may
be, necessary to own or hold their respective properties and to conduct
the businesses in which they are 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 Subsidiary which is a corporation have been duly and validly
authorized and issued and are fully paid and non-assessable (subject in
the case of Subsidiaries organized under foreign law, to such applicable
foreign law) and are owned directly or indirectly by the Company, free and
clear of all liens,
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encumbrances, equities or claims except for liens, encumbrances, equities
or claims arising under the Credit Facilities (as defined in Section 15),
the Co-Venture Parks Agreements (as defined in Section 15) and the
subordinated indemnity agreement among the Company and certain of its
affiliates, Six Flags Entertainment Corporation ("SFEC") and certain of
its affiliates and Time Warner Inc. and certain of its affiliates dated
April 1, 1998 (the "Subordinated Indemnity Agreement"). 100% of the
partnership interests in the Subsidiaries which are partnerships, except
the 99% limited partnership interest in Six Flags Over Georgia II, L.P.
(the "Georgia Co-Venture Partnership") indirectly held by investors in Six
Flags Fund, Ltd. (L.P.), of which approximately 75% of the units are held
by persons who 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 65% of the units are held by persons who
are not affiliated with the Company, are held directly or indirectly by
the Company, free and clear of all liens, encumbrances, equities or claims
except for equities or claims under the Credit Facilities, the Co-Venture
Parks Agreements and the Subordinated Indemnity Agreement. 100% of the
limited liability company interests in the Subsidiaries which are limited
liability companies are held directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims except for
equities or claims under the Credit Facilities, the Co-Venture Parks
Agreements and the Subordinated Indemnity Agreement.
(f) This Agreement has been duly authorized, executed and delivered
by the Company, Premier Operations and SFTP.
(g) The execution, delivery and performance of the Indenture by the
Company and of this Agreement by the Company, Premier Operations and SFTP,
and the consummation of the transactions contemplated hereby and thereby,
will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which the
Company or any of the Subsidiaries is bound or to which any of the
property or assets of the Company or any of the Subsidiaries is subject,
nor will such actions result in any violation of the provisions of the
charter or by-laws or other constitutive documents of the Company or any
of the Subsidiaries or, assuming that all consents, approvals,
authorizations, registrations or qualifications as may
be required under the Exchange Act and applicable state and foreign
securities laws in connection with the purchase and distribution of the
Notes by the Underwriters are obtained, any statute or any order, rule or
regulation of any court or governmental agency or body having jurisdiction
over the Company or any of the Subsidiaries or any of their properties or
assets except, in each case, breaches, violations or defaults which, in
the aggregate, are not reasonably likely to have a Material Adverse
Effect; and except for the registration of the Notes under the Securities
Act, the qualification of the Indenture under the Trust Indenture Act of
1939 (the "Trust Indenture Act") and such consents, approvals,
authorizations, registrations or qualifications as may
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be required under the Exchange Act and applicable state and foreign
securities laws in connection with the purchase and distribution of the
Notes by the Underwriters, no consent, approval, authorization or order
of, or filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of this
Agreement by the Company, Premier Operations or SFTP or the Indenture by
the Company and the consummation of the transactions contemplated hereby
and thereby.
(h) 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.
(i) 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) 337,467 shares issued in May 1999
pursuant to the Company's acquisition of all of the membership interests
of KKI, LLC on November 7, 1997, (ii) 1,080,000 shares issued in
connection with the Company's acquisition of the White Water Atlanta water
park and (iii) shares issued pursuant to the Company's employee benefit
plans, qualified stock options plans or other employee compensation plans
or pursuant to outstanding options, rights or warrants, which, in each
case, are disclosed in the Prospectus.
(j) 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 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 taken as a whole, otherwise
than as set forth or contemplated in the Prospectus.
(k) The historical financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly the
financial condition and
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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 Subsidiaries organized under foreign law, generally accepted
accounting principles in such applicable foreign jurisdictions) applied on
a consistent basis throughout the periods involved, and, in the case of
Subsidiaries organized under foreign law, have been reconciled to
accounting principles generally accepted in the United States to the
extent required by the applicable accounting requirements of the
Securities Act and the Rules and Regulations. The pro forma financial
statements included in the Prospectus have been prepared on a basis
consistent with such historical financial statements, except for the pro
forma adjustments specified therein, and comply in all material respects
with Regulation S-X under the Securities Act, and the pro forma
adjustments have been properly applied to historical amounts in the
compilation of such pro forma financial statements.
(l) KPMG LLP, who have certified certain financial statements of the
Company, and Ernst & Young LLP, who have certified certain financial
statements of SFEC, 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(g) hereof, are
independent public accountants as required by the Securities Act and the
Rules and Regulations.
(m) The Company and each of the Subsidiaries 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.
(n) The Company and each of the Subsidiaries 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.
(o) The Company and each of the Subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks,
service marks, trade names, trademark registrations, service mark
registrations, copyrights and licenses necessary for the conduct of their
respective businesses as presently conducted and, with respect to the
Amended and Restated License Agreement among certain affiliates of Warner
Bros., SFTP and the Company dated February 9, 1998 (the
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"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.
(p) 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 reasonably be
expected to 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.
(q) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
(r) 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.
(s) 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.
(t) 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.
(u) The Company and each of the Subsidiaries are in compliance in
all material respects with all presently and then applicable provisions of
the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company or any of the
Subsidiaries would have any material liability; neither the Company nor
any of the Subsidiaries has incurred and neither the Company nor any of
the Subsidiaries expects to incur material liability under (i) Title IV of
ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986,
as amended, including the regulations and published interpretations
thereunder (the "Code"); and each "pension plan" for which the Company or
any of the Subsidiaries would have
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any liability that is intended to be qualified under Section 401(a) of the
Code is so qualified in all material respects and nothing has occurred
whether by action or by failure to act, which might reasonably be expected
to cause the loss of such qualification.
(v) The Company and each of the Subsidiaries 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, in each case with such exceptions as would not
have a Material Adverse Effect.
(w) The Company and each of its Subsidiaries have filed all federal,
and all material state and local income and franchise tax returns required
to be filed through the date hereof other than those filings being
contested in good faith. The Company and its Subsidiaries have paid all
taxes of which it has notice are due thereon, other than those being
contested in good faith and for which adequate reserves have been provided
or those currently payable without penalty or interest and no tax
deficiency has been determined adversely to the Company or any of the
Subsidiaries which has had, nor does the Company have any knowledge of any
tax deficiency which, if determined adversely to the Company or any of the
Subsidiaries, might be reasonably expected to have, a Material Adverse
Effect.
(x) 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,
other than the regular dividend, declared on June 15, 1999, payable in
respect of the Company's Premium Income Equity Securities, 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.
(y) The Company and each of its Subsidiaries (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 Subsidiaries organized under foreign
law, generally accepted accounting principles in such applicable foreign
jurisdictions) 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.
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(z) Neither the Company nor any of the Subsidiaries (i) is in
violation of its charter or by-laws (or its partnership or operating
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 indenture, mortgage, deed of
trust, loan agreement or other 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 respect of any 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 license, permit,
certificate, franchise or other governmental authorization or permit
necessary to the ownership of its property or to the conduct of its
business, except, in the case of clauses (ii) and (iii), for defaults,
events of default, violations and failures which do not or would not,
individually or in the aggregate, have a Material Adverse Effect.
(aa) Neither the Company nor any of the Subsidiaries 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.
(ab) 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 (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or
previously owned or leased by the Company or the Subsidiaries in violation
of any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a Material Adverse Effect;
there has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes,
solid wastes, hazardous wastes or hazardous substances due to or caused by
the Company or any of the Subsidiaries or with respect to which the
Company or any of the Subsidiaries have knowledge, except for any such
spill, discharge, leak, emission, injection, escape, dumping or release
which would not have or would not be reasonably likely to have, singularly
or in the aggregate with all such spills, discharges, leaks, emissions,
injections, escapes, dumpings and releases, a Material Adverse Effect; and
the terms "hazardous wastes", "toxic
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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.
(ac) 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.
(ad) The statements set forth in the Prospectus under the captions
"Business--Licenses," "Description of Other Indebtedness," "Certain United
States Federal Income Tax Considerations" and "Description of Notes,"
insofar as they describe the terms of the agreements and securities
referred to therein, are accurate in all material respects and fairly
present the information required to be shown.
(ae) The Company has full corporate power and authority to enter
into the Indenture; the Indenture has been duly authorized by the Company;
and on the First Delivery Date, the Indenture will have been duly executed
and delivered by the Company and, assuming due authorization, execution
and delivery of the Indenture by the Trustee, the Indenture will
constitute a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, except that the enforcement
thereof may be subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles (whether
considered in a proceeding in equity or at law).
(af) The Company has full corporate power and authority to offer and
sell the Notes; the Notes have been duly authorized by the Company; and
when the Notes are delivered and paid for pursuant to this Agreement on
the First Delivery Date, such Notes will have been duly executed,
authenticated, issued and delivered (assuming due authentication of the
Notes by the Trustee) and, assuming due authentication of the Notes by the
Trustee, such Notes will constitute valid and legally binding obligations
of the Company, entitled to the benefits of the Indenture and enforceable
in accordance with its terms, except that the enforcement thereof may be
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally and general equitable principles (whether considered in a
proceeding in equity or at law).
(ag) The Indenture and the Notes conform in all material respects to
the descriptions thereof contained in the Prospectus.
(ah) Neither the Company nor any Subsidiary has taken, directly or
indirectly, any action which is designed to or which has constituted or
which might reasonably have been expected to cause or result in
stabilization or manipulation of the price of any security of the Company
in connection with the Offering.
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(ai) The Indenture has been qualified under and will comply in all
material respects with the Trust Indenture Act.
2. Purchase of the Notes by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell to the several
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company the Notes at a purchase price of 97.773% of the
principal amount thereof plus accrued interest, if any, from June 30, 1999, to
the First Delivery Date, the respective principal amount of Notes set forth
opposite that Underwriter's name in Schedule 1 hereto.
3. Offering of Notes by the Underwriters. Upon authorization by the
Underwriters of the release of the Notes, the several Underwriters propose to
offer the Notes for sale upon the terms and conditions set forth in the
Prospectus.
4. Delivery of and Payment for the Notes. Delivery of and payment
for the Notes shall be made at the office of Cravath, Swaine & Moore, 825 Eighth
Avenue, New York, NY 10019, at 10:00 A.M., New York City time, on the fourth
full business day following the date of this Agreement or at such other date or
place as shall be determined by agreement between the Underwriters and the
Company. This date and time are sometimes referred to as the "First Delivery
Date." On the First Delivery Date, the Company shall deliver or cause to be
delivered several Notes in definitive form, registered in the name of Cede &
Co., nominee of The Depository Trust Company ("DTC"), or such other names as the
Underwriters may request upon at least two business days' notice to the Company
(collectively, the "Global Notes") to the Underwriters against payment by the
Company of the purchase price by wire transfer in immediately available funds.
Time shall be of the essence (except that the Company will not be responsible
for any delay resulting from any action or inaction of any Underwriter) and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligations of each Underwriter hereunder. For the purpose of
expediting the checking and packaging of the Global Notes, the Company shall
make the certificates representing the Global Notes available for inspection by
the Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the First Delivery Date.
5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Underwriters
and to file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than Commission's close of business on the second business
day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under
the Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus and to file no Rule 462(b)
Registration Statement except as permitted herein; to advise the
Underwriters, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any
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supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Underwriters with copies thereof; upon your request, to
cause the Rule 462(b) Registration Statement, properly completed, to be
filed with the Commission pursuant to Rule 462(b) and to provide evidence
satisfactory to the Underwriters of such filing; to advise the
Underwriters, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Notes for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for
additional information; and, in the event of the issuance of any stop
order or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, to use
promptly its reasonable best efforts to obtain its withdrawal;
(b) To furnish reasonably promptly to each of the Underwriters and
to counsel for the Underwriters a signed copy of the Registration
Statement as originally filed with the Commission, each amendment thereto
and any Rule 462(b) Registration Statement filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Underwriters such number of the
following documents as the Underwriters shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with
the Commission, each amendment thereto (in each case excluding exhibits
other than this Agreement and the computation of per share earnings) and
any Rule 462(b) Registration Statement, (ii) each Preliminary Prospectus,
the Prospectus and any amended or supplemented Prospectus and (iii) any
document incorporated by reference in the Prospectus (excluding exhibits
thereto); and, if the delivery of a prospectus is required at any time
after the Effective Time in connection with the offering or sale of the
Notes or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary to amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or
the Exchange Act, to notify the Underwriters and, upon their request, to
file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Underwriters may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance.
13
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriters,
be required by the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus, any Prospectus pursuant to
Rule 424 of the Rules and Regulations or any Rule 462(b) Registration
Statement to furnish a copy thereof to the Underwriters and counsel for
the Underwriters and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to
the Underwriters an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Securities
Act and the Rules and Regulations (including, at the option of the
Company, Rule 158);
(g) For so long as any of the Notes are outstanding, to deliver
without charge to the Underwriters and the Trustee, promptly upon their
becoming available, copies of (i) all reports or other publicly available
information that the Company shall mail or otherwise make available to its
securities holders generally and (ii) all reports, financial statements
and proxy or information statements filed by the Company with the
Commission or any national securities exchange and such other publicly
available information concerning the Company or its Subsidiaries;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Notes for offering and
sale (or obtain an exemption from registration) under the securities laws
of such jurisdictions as the Underwriters may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Notes; provided, however, that the Company shall not
be required to qualify as a foreign corporation or a dealer in securities
or to execute a general consent to service of process in any jurisdiction
in any action other than one arising out of the offering or sale of the
Notes;
(i) For a period of 90 days from the date of the Prospectus, not to,
directly or indirectly, sell, contract to sell, grant any option to
purchase, issue any instrument convertible into or exchangeable for, or
otherwise transfer or dispose of, any debt securities of any of the
Company or any Subsidiary substantially similar to the Notes (other than
the Notes);
(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
14
meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder;
(k) In connection with the Offering, until the Underwriters shall
have notified the Company and the other Underwriters of the completion of
the resale of the Notes, the Company will not, and will use its best
efforts to cause its affiliates not to, either alone or with one or more
other persons, bid for or purchase for any account in which it or any of
such affiliates has a beneficial interest any Notes or attempt to induce
any person to purchase any Notes; and neither it nor any of its affiliates
will make bids or purchases for the purpose of creating actual, or
apparent, active trading in, or of raising the price of, the Notes; and
(l) To not take, directly or indirectly, any action which is
designed to stabilize or manipulate, or which constitutes or which might
reasonably be expected to cause or result in stabilization or
manipulation, of the price of any security of the Company in connection
with the offering of the Notes.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Notes and any taxes payable in
that connection; (b) the costs incident to the preparation, printing and filing
under the Securities Act of the Registration Statement and any amendments and
exhibits thereto; (c) the costs of distributing the Registration Statement as
originally filed and each amendment thereto and any post-effective amendments
thereof (including, in each case, exhibits), any Preliminary Prospectus, the
Prospectus and any amendment or supplement to the Prospectus or any document
incorporated by reference therein, all as provided in this Agreement; (d) the
costs of producing and distributing this Agreement, the Indenture, the Notes and
any other related documents in connection with the offering, purchase, sale and
delivery of the Notes; (e) the filing fees incident to securing any required
review by the National Association of Securities Dealers, Inc. (the "NASD") of
the terms of sale of the Notes; (f) the fees and expenses, if applicable, of
qualifying the Notes under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters);
(g) if one is required pursuant to the rules of the NASD, all fees and expenses
of a qualified independent underwriter; (h) all fees and expenses (including
fees and expenses of counsel) of the Company in connection with approval of the
Notes by DTC for "book-entry" transfer and (k) all other costs and expenses
incident to the performance of the obligations of the Company, Premier
Operations or SFTP under this Agreement; provided that, except as provided in
this Section 6 and in Section 11, the Underwriters shall pay their own costs and
expenses, including the costs and expenses of their counsel, any transfer taxes
on the Notes which they may sell and the expenses of advertising any offering of
the Notes made by the Underwriters.
7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the First Delivery Date, of the representations and warranties of the
Company, Premier Operations and SFTP
15
contained herein, to the performance by each of the Company, Premier Operations
and SFTP of its obligations hereunder, and to each of the following additional
terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 5(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have
been issued and no proceeding for that purpose shall have been initiated
or threatened by the Commission; and any request of the Commission for
inclusion of additional information in the Registration Statement or the
Prospectus or otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to the First Delivery Date that the Registration
Statement or the Prospectus or any amendment or supplement thereto
contains an untrue statement of a fact which, in the opinion of Cravath,
Swaine & Moore, counsel for the Underwriters, is material or omits to
state a fact which, in the opinion of such counsel, is material and is
required to be stated therein or is necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Indenture, the
Notes, the Registration Statement and the Prospectus, and all other legal
matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to
counsel for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to
enable them to pass upon such matters.
(d) James M. Coughlin, General Counsel of the Company, shall have
furnished to the Underwriters his written opinion, addressed to the
Underwriters and dated the First Delivery Date, in form reasonably
satisfactory to the Underwriters, to the effect that:
(i) The Company and each of the Subsidiaries which is a
corporation 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 Subsidiaries which is a
partnership is validly existing as a limited partnership in good
standing under the laws of its jurisdiction of formation; each of
the Subsidiaries which is a limited liability company is validly
existing as a limited liability company in good standing under the
laws of its jurisdiction of formation; and the Company and the
Subsidiaries are each duly qualified to do business and are in good
standing as foreign entities in each jurisdiction in which their
respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, except where the
failure to so qualify would not have a Material Adverse Effect;
provided, however, that in giving the above opinion, such counsel
need express no opinion with respect to Subsidiaries organized under
the laws of
16
jurisdictions outside of the United States; and the Company and the
Subsidiaries have all corporate, partnership or equivalent 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 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;
(iii) To such counsel's knowledge, all of the issued shares of
capital stock of each Subsidiary which is a corporation (A) have
been duly and validly authorized and issued and (B) with respect to
each such Subsidiary organized under the laws of a jurisdiction
within the United States, are fully paid and non-assessable, and all
of the issued shares of capital stock of such Subsidiary 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, the
Co-Venture Parks Agreement and the Subordinated Indemnity Agreement;
and 100% of the partnership interest in each of the Subsidiaries
which is a partnership is held directly or indirectly by the
Company, except for 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% of the units are
held by persons who 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 65% of the units are held by persons who 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, the
Co-Venture Parks Agreements and the Subordinated Indemnity
Agreement; and 100% of the limited liability company interests in
each of the Subsidiaries which is a limited liability company is
held 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, the Co-Venture Parks Agreements and the Subordinated
Indemnity Agreement;
(iv) Except as set forth or incorporated by reference in the
Prospectus, 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 capital stock of the Company pursuant to the
Company's charter or by-laws or any agreement or other instrument
known to such counsel;
17
(v) To such counsel's knowledge (specified in such opinion)
and other than as set forth or incorporated by reference in the
Prospectus, (A) 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 reasonably be expected to
have a Material Adverse Effect and (B) no such proceedings are
overtly threatened by governmental authorities or by others or
contemplated by governmental authorities;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior
to the First Delivery Date (other than the financial statements and
related schedules therein and other financial or statistical data
included therein or incorporated by reference 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 such counsel's knowledge, there are no contracts or
other documents which are required to be described in the Prospectus
or filed as exhibits to the Registration Statement by the Securities
Act or by the Rules and Regulations which have not been described or
filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules and Regulations;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company, Premier Operations and SFTP;
(ix) The issue and sale of the Notes being delivered on the
First Delivery Date by the Company and the compliance by the
Company, Premier Operations and SFTP with all of the provisions of
this Agreement and the compliance by the Company with all of the
provisions of the Indenture 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 material indenture, mortgage, deed
of trust, loan agreement or other material 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
18
is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws or other constitutive documents
of the Company or any of the Subsidiaries or, assuming that all
consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and
distribution of the Notes by the Underwriters are obtained, any
Federal or New York State statute, the General Corporation Law of
the State of Delaware, or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of
their properties or assets; and, except for the registration of the
Notes under the Securities Act, the qualification of the Indenture
relating to the Notes under the Trust Indenture Act of 1939, as
amended, and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Notes by the Underwriters, no
consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement or the Indenture by the Company or any of the Subsidiaries
that is a party hereto or thereto and the consummation of the
transactions contemplated hereby and thereby;
(x) To such counsel's knowledge, no holders of securities of
the Company have rights which have not been duly and validly waived
to require the Company to include such securities with the Notes
registered pursuant to the Registration Statement;
(xi) The Company has full corporate power and authority to
enter into the Indenture; the Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery of the Indenture by the
Trustee, the Indenture constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
except that the enforcement thereof may be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a
proceeding in equity or at law); and
(xii) The Company has full corporate power and authority to
offer and sell the Notes; the Notes have been duly authorized,
executed, authenticated, issued and delivered (assuming due
authentication of the Notes by the Trustee) and, assuming due
authentication of the Notes by the Trustee, such Notes constitute
valid and legally binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable in accordance with
their terms, except that the enforcement thereof may be subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and
19
other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a
proceeding in equity or at law).
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and that such counsel is not admitted in any
state other than New York; and, in respect of matters of fact, may rely
upon certificates of officers of the Company or the Subsidiaries, provided
that such counsel shall state that it believes that both the Underwriters
and it are justified in relying upon such certificates.
(e) Thelen Reid & Priest LLP shall have furnished to the
Underwriters its written opinion, as counsel to the Company, addressed to
the Underwriters and dated the First Delivery Date, in form reasonably
satisfactory to the Underwriters, to the effect that:
(i) To such counsel's knowledge, all of the issued shares of
capital stock of each Subsidiary which is a corporation (A) have
been duly and validly authorized and issued and (B) with respect to
each such Subsidiary organized under the laws of a jurisdiction
within the United States, are fully paid and non-assessable, and all
of the issued shares of capital stock of each such Subsidiary 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, the Co-Venture Parks Agreement and the Subordinated
Indemnity Agreement; and 100% of the partnership interest in each of
the Subsidiaries which is a partnership is held directly or
indirectly by the Company, except for 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%
of the units are held by persons who 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 65% of the units are
held by persons who 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, the Co-Venture Parks Agreements and the Subordinated
Indemnity Agreement; and 100% of the limited liability company
interests in each of the Subsidiaries which is a limited liability
company is held 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, the Co-Venture Parks Agreements and the Subordinated
Indemnity Agreement;
20
(ii) Except as set forth or incorporated by reference in the
Prospectus, 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 capital stock of the Company pursuant to the
Company's charter or by-laws or any agreement or other instrument
known to such counsel;
(iii) To such counsel's knowledge (specified in such opinion)
and other than as set forth or incorporated by reference in the
Prospectus, (A) 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 reasonably be expected to
have a Material Adverse Effect and (B) no such proceedings are
overtly threatened by governmental authorities or by others or
contemplated by governmental authorities.
(iv) 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;
(v) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior
to the First Delivery Date (other than the financial statements and
related schedules therein and other financial or statistical data
included therein or incorporated by reference 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;
(vi) To 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
21
Registration Statement or incorporated therein by reference as
permitted by the Rules and Regulations;
(vii) This Agreement has been duly authorized, executed and
delivered by the Company, Premier Operations and SFTP;
(viii) The issue and sale of the Notes being delivered on the
First Delivery Date by the Company and the compliance by the
Company, Premier Operations and SFTP with all of the provisions of
this Agreement and the compliance by the Company with all of the
provisions of the Indenture 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 material indenture, mortgage, deed
of trust, loan agreement or other material agreement or instrument
known to such counsel to which the Company or any of the
Subsidiaries is a party or by which the Company or any of the
Subsidiaries is bound or to which any of the property or assets of
the Company or any of the Subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws or other constitutive documents of the Company or any of the
Subsidiaries or, assuming that all consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities
laws in connection with the purchase and distribution of the Notes
by the Underwriters are obtained, any Federal or New York State
statute, the General Corporation Law of the State of Delaware, or
any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or
any of the Subsidiaries or any of their properties or assets; and,
except for the registration of the Notes under the Securities Act,
the qualification of the Indenture relating to the Notes under the
Trust Indenture Act, and such consents, approvals, authorizations,
registrations or qualifications as may be required under the
Exchange Act and applicable state or foreign securities laws in
connection with the purchase and distribution of the Notes by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency
or body is required for the execution, delivery and performance of
this Agreement or the Indenture 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;
(ix) To such counsel's knowledge, no holders of securities of
the Company have rights which have not been duly and validly waived
to require the Company to include such securities with the Notes
registered pursuant to the Registration Statement;
22
(x) The Company has full corporate power and authority to
enter into the Indenture; the Indenture has been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery of the Indenture by the
Trustee, the Indenture constitutes a valid and legally binding
obligation of the Company, enforceable in accordance with its terms,
except that the enforcement thereof may be subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights
generally and general equitable principles (whether considered in a
proceeding in equity or at law);
(xi) The Company has full corporate power and authority to
offer and sell the Notes; the Notes have been duly authorized,
executed, authenticated, issued and delivered (assuming due
authentication of the Notes by the Trustee) and, assuming due
authentication of the Notes by the Trustee, such Notes constitute
valid and legally binding obligations of the Company, entitled to
the benefits of the Indenture and enforceable in accordance with
their terms, except that the enforcement thereof may be subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws relating to or affecting
creditors' rights generally and general equitable principles
(whether considered in a proceeding in equity or at law);
(xii) The Indenture and the Notes conform in all material
respects to the descriptions thereof contained in the Prospectus;
and
(xiii) The Indenture has been qualified under and complies in
all material respects with the Trust Indenture Act of 1939, as
amended.
In rendering such opinion, such counsel may state that its opinion
is limited to matters governed by the Federal laws of the United States of
America, the laws of the State of New York and the General Corporation Law
of the State of Delaware and that such counsel is not admitted in any
state other than New York; and, in respect of matters of fact, may rely
upon certificates of officers of the Company or the Subsidiaries, provided
that such counsel shall state that it believes that both the Underwriters
and it are justified in relying upon such certificates. Further, the
opinion of Thelen Reid and Priest LLP may rely on certain specified
matters contained in the opinion of James M. Coughlin. Thelen Reid &
Priest LLP shall also have furnished to the Underwriters a written
statement, addressed to the Underwriters and dated the First Delivery
Date, in form satisfactory to the Underwriters, to the effect that (x)
such counsel has acted as counsel to the Company in connection with the
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
23
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 or incorporated by
reference 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 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 "Description of Other Indebtedness", "Description of Notes,"
and "Certain United States Federal Income Tax Considerations" insofar as
such statements describe the documents or agreements referred to therein,
the Notes, the Company's other debt instruments or other securities, and
concern legal matters.
(f) The Underwriters shall have received from Cravath, Swaine &
Moore, counsel for the Underwriters, such opinion or opinions and such
statement or statements, dated the First Delivery Date, with respect to
the issuance and sale of the Notes, the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably
require, and the Company and the Subsidiaries shall have furnished to such
counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(g) At the time of execution of this Agreement, the Underwriters
shall have received from (I) KPMG LLP a letter, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated
the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and (ii)
stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings, except for the financial
information and other matters covered in the letter from Ernst & Young
LLP, and; (II) Ernst & Young LLP a letter, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and dated
the date hereof (i) confirming
24
that they are independent accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof, the conclusions and
findings of such firm with respect to certain financial information and
other matters relating to SFEC and its subsidiaries as have been
previously agreed to by such firm and the Underwriters.
(h) With respect to the letters of KPMG LLP and Ernst & Young LLP
referred to in the preceding paragraph and delivered to the Underwriters
concurrently with the execution of this Agreement (the "initial letters"),
the Company shall have furnished to the Underwriters a letter (the
"bring-down letters") of each of such accountants, addressed to the
Underwriters and dated the First Delivery Date (i) confirming that they
are independent public accountants within the meaning of the Securities
Act and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or, in
the case of the letter of KPMG 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.
(i) The Company shall have furnished to the Underwriters a
certificate, dated the First Delivery Date, of its Chairman of the Board,
its President or a Vice President and its Chief Financial Officer stating
that:
(i) The representations, warranties and agreements of the
Company and each of Premier Operations and SFTP in Section 1 are
true and correct as of the First Delivery Date; the Company, Premier
Operations and SFTP have complied with all their agreements
contained herein; and the conditions set forth in Sections 7(a) and
7(j) 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.
(j) 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) or long-term debt of the Company or any of the Subsidiaries or
any change, or any development involving a prospective
25
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, taken as a
whole, otherwise, in each case, than as set forth or contemplated in the
Prospectus, the effect of which, in any such case, is, in the judgment of
the Underwriters, so material (to the Company and its Subsidiaries, taken
as a whole) and adverse as to make it impracticable or inadvisable to
proceed with the public offering or the delivery of the Notes being
delivered on the First Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(k) 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.
(l) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the American Stock Exchange or
in the over-the-counter market, or trading in any securities of the
Company on any exchange or in the over-the-counter market, shall have been
suspended or minimum prices shall have been established on any such
exchange or such market by the Commission, by such exchange or by any
other regulatory body or governmental authority having jurisdiction, (ii)
a banking moratorium shall have been declared by Federal or state
authorities, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving
the United States or there shall have been a declaration of a national
emergency or war by the United States or (iv) there shall have occurred
such a material adverse change in general economic, political or financial
conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make it, in the judgment
of a majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the Notes
being delivered on the First Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(m) Substantially concurrently with the consummation of the issuance
and sale of Notes by the Company to the Underwriters, the Company shall
use the proceeds of the Offering to consummate the purchase of all notes
validly tendered pursuant to the tender offer and consent solicitation of
(i) Premier Operations for its 12% Senior Notes due 2003 and (ii) SFTP for
its 12 1/4% Senior Subordinated Discount Notes due 2005, in each case with
respect to holders holding no less than a majority in principal amount of
such notes.
26
(n) Each of the Premier Credit Facility (as defined in Section 15)
and the Six Flags Credit Facility (as defined in Section 15) shall be in
effect and available for borrowing.
(o) 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 indentures relating to any of the Company's 10%
Senior Discount Notes due 2008, the Company's 9 1/4% Senior Notes due
2006, Premier Operations' 9 3/4% Senior Notes due 2007, the SFEC Zero
Coupon Senior Notes due 1999, and SFEC's 8 7/8% Senior Notes due 2006, or
(ii) the credit agreement relating to either the Premier Credit Facility
or the Six Flags Credit Facility.
(p) The Company and the Trustee shall have entered into the
Indenture and the Underwriters shall have received counterparts, conformed
as executed, thereof and the Notes shall have been duly executed and
delivered by the Company and authenticated by the Trustee.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and scope reasonably satisfactory to
counsel for the Underwriters.
8. Indemnification and Contribution.
(a) The Company, Premier Operations and SFTP jointly and severally,
shall indemnify and hold harmless each Underwriter (including any Underwriter in
its role as qualified independent underwriter pursuant to the rules of the
NASD), its officers and employees and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Notes), to which that Underwriter, officer,
employee or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (B) in
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the Notes under the securities laws
of any jurisdiction (any such application, document or information being
hereinafter called a "Blue Sky Application"), (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
27
in any manner to, the Notes or the Offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company, Premier Operations and SFTP shall not be liable
under this clause (iii) to the extent that it is determined in a final judgment
by a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company, Premier Operations
and SFTP shall not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, or in any Blue Sky Application, in reliance
upon and in conformity with written information concerning any Underwriter
furnished to the Company through the Underwriters by or on behalf of any
Underwriter specifically for inclusion therein; and provided further that with
respect to any such untrue statement or omission made in the Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
enure to the benefit of the Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes concerned if, to the
extent that such sale was an initial sale by such Underwriter and any such loss,
claim, damage or liability of such Underwriter is a result of the fact that both
(A) a copy of the Prospectus was not sent or given to such person at or prior to
the written confirmation of the sale of such Notes to such person, and (B) the
untrue statement or omission in the Preliminary Prospectus was corrected in the
Prospectus unless, in either case, such failure to deliver the Prospectus was a
result of noncompliance by the Company with Section 5(c). The foregoing
indemnity agreement is in addition to any liability which the Company, Premier
Operations or SFTP may otherwise have to any Underwriter or to any officer,
employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, Premier Operations and SFTP, each of their respective
officers and employees, each of their respective directors, and each person, if
any, who controls the Company, Premier Operations or SFTP 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, Premier
Operations or SFTP 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
28
to be stated therein or necessary to make the statements therein not misleading,
but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through the Underwriters by or on behalf of that Underwriter
specifically for inclusion therein, and shall reimburse the Company, Premier
Operations and SFTP and any such director, officer or controlling person for any
legal or other expenses reasonably incurred by the Company, Premier Operations
or SFTP or any such director, officer or controlling person in connection with
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company, Premier Operations or SFTP or any such director,
officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 8.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Underwriters shall have the right, upon written notice to the Company, to
employ counsel to represent jointly the Underwriters and those other
Underwriters and their respective officers, employees and controlling persons
who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Underwriters against the Company and the
Subsidiaries that are parties hereto under this Section 8 if, in the reasonable
judgment of the Underwriters, it is advisable for the Underwriters and those
Underwriters, officers, employees and controlling persons to be jointly
represented by separate counsel, and in that event the reasonable fees and
expenses of such separate counsel shall be paid, jointly and severally, by the
Company and the Subsidiaries that are parties hereto. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm of attorneys (in
addition to any local counsel) at any one time for all such indemnified party or
parties. No indemnifying party shall (i) without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
settle or compromise or consent to the
29
entry of any judgment with respect to any pending or threatened claim, action,
suit or proceeding in respect of which indemnification or contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(c) in respect of any loss, claim, damage or
liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company, Premier Operations and SFTP, on the one hand, and the
Underwriters, on the other, from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company,
Premier Operations and SFTP, on the one hand, and the Underwriters, on the
other, with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, Premier Operations and SFTP, on the one hand, and the Underwriters, on
the other, with respect to the Offering shall be deemed to be in the same
proportion as the total net proceeds from the Offering of the Notes purchased
under this Agreement (before deducting expenses) received by the Company, on the
one hand, and the total underwriting discounts and commissions received by the
Underwriters with respect to the shares of the Notes purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the Offering
of the Notes under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. For purposes of the preceding two sentences, the net
proceeds deemed to be received by the Company shall be deemed to be also for the
benefit of Premier Operations and SFTP and information supplied by the Company
shall also be deemed to have been supplied by Premier Operations and SFTP. The
Company, Premier Operations and SFTP, and the Underwriters agree that it would
not be just and equitable if contributions pursuant to this Section 8(d) were to
be determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to herein. The amount
paid or payable by an indemnified party as a result of the
30
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section shall be deemed to include, for purposes of this Section
8(d), any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Notes underwritten by it and distributed to the public was
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise paid or become liable to pay by reason of any untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute as
provided in this Section 8(d) are several in proportion to their respective
underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company, Premier
Operations and SFTP, acknowledge that the statements with respect to the public
offering of the Notes by the Underwriters set forth in the last paragraphs on
the cover page of and statements under the caption "Underwriting" in the
Prospectus constitute the only information concerning such Underwriters
furnished in writing to the Company by or on behalf of the Underwriters
specifically for inclusion in the Registration Statement and the Prospectus.
9. Defaulting Underwriters.
If, on the First Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Notes which the
defaulting Underwriter agreed but failed to purchase on the First Delivery Date
in the respective proportions which the aggregate principal amount of Notes set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total aggregate principal amount of Notes set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Notes on the First Delivery Date if the total
aggregate principal amount of Notes which the defaulting Underwriter or
Underwriters agreed but failed to purchase on such date exceeds 9.09% of the
total aggregate principal amount of Notes to be purchased on the First Delivery
Date, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the aggregate principal amount of Notes which it
agreed to purchase on the First Delivery Date pursuant to the terms of Section
2. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Underwriters who
so agree, shall have the right, but shall not be obligated, to purchase, in such
proportion as may be agreed upon among them, all the Notes to be purchased on
the First Delivery Date. If the remaining Underwriters or other underwriters
satisfactory to the Underwriters do not elect to purchase the shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase on the
First Delivery Date, this Agreement shall terminate without liability on the
part of any non-
31
defaulting Underwriter or the Company, except that the Company will continue to
be liable for the payment of expenses to the extent set forth in Section 6. As
used in this Agreement, the term "Underwriter" includes, for all purposes of
this Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 9, purchases Notes which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of
any liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Notes of a defaulting
or withdrawing Underwriter, either the Underwriters or the Company may postpone
the Delivery Date for up to seven full business days in order to effect any
changes that in the opinion of counsel for the Company or counsel for the
Underwriters may be necessary in the Registration Statement, the Prospectus or
in any other document or arrangement.
10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Underwriters by notice given to and received by the Company
prior to delivery of and payment for the Notes if, prior to that time, any of
the events described in Sections 7(j), 7(k) or 7(l) shall have occurred or if
the Underwriters shall decline to purchase the Notes for any reason permitted
under this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Company shall
fail to tender the Notes for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled (other than by reason of any events described in Section 7(l)
except for the suspension of trading or minimum prices of the securities of the
Company), the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including fees and disbursements of counsel) incurred by
the Underwriters in connection with this Agreement and the proposed purchase of
the Notes, and promptly following demand the Company shall pay the full amount
thereof to the Underwriters. If this Agreement is terminated pursuant to Section
9 by reason of the default of one or more Underwriters, the Company shall not be
obligated to reimburse any defaulting Underwriter on account of those expenses.
12. Notices, etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Lehman Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: 212-526-6588), with a copy, in the case of any notice
pursuant to Section 8(c), to the Director of Litigation, Office of the
General Counsel, Lehman Brothers Inc., 3 World Financial Center, 10th
Floor, New York, NY 10285;
32
(b) if to the Company or any of the Subsidiaries, shall be delivered
or sent by mail, telex or facsimile transmission to 122 East 42nd Street,
49th Floor, New York, NY 10168, Attention: Kieran E. Burke (Fax:
212-949-6203);
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Underwriters, which address will be supplied to any other party hereto by the
Underwriters upon request. Any such statements, requests, notices or agreements
shall take effect at the time of receipt thereof. The Company shall be entitled
to act and rely upon any request, consent, notice or agreement given or made on
behalf of the Underwriters by Lehman Brothers Inc. on behalf of the
Underwriters.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company,
Premier Operations and SFTP 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 Premier Operations and SFTP contained in this Agreement shall
also be deemed to be for the benefit of the officers and employees of each
Underwriter and the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company within the meaning of Section 15 of the Securities Act. Nothing in
this Agreement is intended or shall be construed to give any person, other than
the persons referred to in this Section 13, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
14. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the applicable Subsidiaries and the
Underwriters contained in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Notes and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
15. Definition of the Terms "Business Day," "Credit Facilities,"
"Premier Credit Facility", "Six Flags Credit Facility", "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) "Credit Facilities" means the Premier Credit Facility and the Six
Flags Credit Facility, (c) "Premier Credit Facility" means the senior secured
credit facility dated as of March 13, 1998, among Premier Operations and certain
of its subsidiaries, The Bank of New York and the lenders named therein, as
amended, (d) "Six Flags Credit Facility" means the senior secured credit
facility dated as of April 1, 1998, among SFTP, S.F. Holdings, Inc., SFEC and
certain subsidiaries of SFTP, The Bank of New York and the lenders named
therein, as amended, (e) "Subsidiary" means
33
collectively each subsidiary (as defined in Rule 405 of the Rules and
Regulations) of the Company which owns and/or operates a theme park or water
park, the general partner of any of the foregoing which are partnerships,
Premier Operations and SFEC, and (f) "Co-Venture Parks Agreements" has the same
meaning as the defined term "Partnership Parks Agreements" in the Indenture.
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.
If the foregoing correctly sets forth the agreement among the
Company, Premier Operations and SFTP and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
Premier Parks Inc.
By /s/ Kieran E. Burke
-----------------------------------
Name: Kieran E. Burke
Title: Chairman of the Board and
Chief Executive Officer
Premier Parks Operations Inc.
By /s/ Kieran E. Burke
-----------------------------------
Name: Kieran E. Burke
Title: Chairman of the Board and
Chief Executive Officer
Six Flags Theme Parks Inc.
By /s/ Kieran E. Burke
-----------------------------------
Name: Kieran E. Burke
Title: Chairman of the Board and
Chief Executive Officer
Accepted:
Lehman Brothers Inc.
Salomon Smith Barney Inc.
Goldman, Sachs & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Morgan Stanley & Co. Incorporated
ING Baring Furman Selz LLC
Allen & Company Incorporated
BNY Capital markets, Inc.
By Lehman Brothers Inc.
By /s/
--------------------------------
Authorized Representative
SCHEDULE 1
Aggregate Principal
Underwriters Amount of Notes
- ------------ ---------------
Lehman Brothers Inc................................. $204,250,000
Salomon Smith Barney Inc. .......................... 53,750,000
Goldman, Sachs & Co. ............................... 43,000,000
Merrill Lynch, Pierce, Fenner & Smith Incorporated . 43,000,000
Morgan Stanley & Co. Incorporated................... 43,000,000
ING Baring Furman Selz LLC ......................... 23,650,000
Allen & Company Incorporated. ...................... 10,750,000
BNY Capital Markets, Inc. .......................... 8,600,000
------------
Total......................................... $430,000,000
============