Exhibit 1(a)
$125,000,000
PREMIER PARKS INC.
% SENIOR NOTES DUE 2007
UNDERWRITING AGREEMENT
, 1997
▇▇▇▇▇▇ BROTHERS INC.
CHASE SECURITIES INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇ ▇▇▇▇ LLC
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Premier Parks Inc., a Delaware corporation (the "Company"), proposes
to sell $125,000,000 of the Company's % Senior Notes due 2007 (the
"Securities"). The Securities are to be issued pursuant to an indenture to be
dated as of , 1997 (the "Indenture") between the Company
and The Bank of New York, as trustee (the "Trustee"). This is to confirm the
agreement concerning the purchase of the Securities from the Company by the
Underwriters named in Schedule 1 hereto (the "Underwriters").
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-2 (Registration
No. 333-16763), and one or more amendments thereto, with respect to the
Securities have (i) been prepared by the Company in conformity in all
material respects with the requirements of the United States Securities Act
of 1933 (the "Securities Act") and the rules and regulations (the "Rule 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
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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 become 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 filed with the
Commission by the Company with the consent of the Representatives pursuant
to Rule 424(a) of the Rules and Regulations; "Registration Statement" means
such registration statement, as amended at the Effective Time, including
any documents incorporated by reference therein at such time and all
information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in accordance with
Section 4(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 Delivery Date (as hereinafter
defined), also means such registration statement as so amended, unless the
context otherwise requires; and "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 333-16763). 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-2 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 date (as to the Registration Statement and any amendment or
supplement 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
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required to be stated therein or necessary to make the statements therein
not misleading; PROVIDED that no representation or warranty is made as to
(i) the Trustee's Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act"), and (ii) information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Underwriters by or on
behalf of any Underwriter specifically for inclusion therein. The
Indenture conforms in all respects to the requirements of the Trust
Indenture Act and the rules and regulations of the Commission thereunder.
(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 14) that is a corporation (a "corporate Subsidiary", and
collectively with all other such subsidiaries, the "corporate
Subsidiaries") have been duly incorporated and are validly existing as
corporations in good standing under the laws of their respective
jurisdictions of incorporation; Frontier City Partners, Limited
Partnership, an Oklahoma limited partnership ("Frontier City Partners"), is
validly existing as a limited partnership in good standing under the laws
of Oklahoma; the Company, the corporate Subsidiaries and Frontier City
Partners are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective
ownership or lease of property or the conduct of their respective
businesses requires such qualification, except where the failure to so
qualify would not have 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 or partnership power and authority, as the case may be,
necessary to own or hold their respective properties and to conduct the
businesses in which they are 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
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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 to the description thereof contained in the
Prospectus; all of the issued shares of capital stock of each corporate
Subsidiary of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable and, except for Stuart Amusement
Company ("Stuart"), a Massachusetts corporation and owner of Riverside Park
("Riverside Park"), which the Company has agreed to acquire pursuant to the
Stock Purchase Agreement by and among the Company, Stuart, The ▇▇▇▇▇▇▇
Family Limited Partnership and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. dated December 4,
1996, are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims and 100% of the partnership
interest in Frontier City Partners is held directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or claims
except, in each case, for the liens and encumbrances of the lenders under
the Credit Agreement between the Company and ▇▇▇▇▇▇ Commercial Paper Inc.
dated October 30, 1996 (the "New Credit Facility").
(f) The Indenture has been duly authorized, and when duly executed by
the proper officers of the Company (assuming due execution and delivery by
the Trustee) and delivered by the Company, will constitute a valid and
binding agreement of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in equity or at
law) or an implied covenant of good faith and fair dealing; and the
Securities have been duly authorized, and when duly executed,
authenticated, issued and delivered as provided in the Indenture, will be
duly and validly issued and outstanding and will constitute valid and
binding obligations of the Company entitled to the benefits of the
Indenture and enforceable in accordance with their terms, subject to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law) and an implied covenant of good faith and
fair dealing; and the Indenture and the Securities conform to the
descriptions thereof contained in the Prospectus.
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(g) This Agreement has been duly authorized, executed and delivered
by the Company.
(h) The execution, delivery and performance of this Agreement, the
Indenture and the Securities by the Company 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 of the Company
or any of the Subsidiaries or, assuming that all consents, approvals,
authorizations, registrations or qualifications as may be required under
the Exchange Act and applicable state and foreign securities laws in
connection with the purchase and distribution of the Securities by the
Underwriters are obtained, any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the
Company or any of the Subsidiaries or any of their properties or assets
except, in each case, breaches, violations or defaults which, in the
aggregate, are not reasonably likely to have a Material Adverse Effect; and
except for the registration of the Securities under the Securities Act and
such consents, approvals, authorizations, registrations or qualifications
as may be required under the Exchange Act and applicable state and foreign
securities laws in connection with the purchase and distribution of the
Securities by the Underwriters, no consent, approval, authorization or
order of, or filing, registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement, the Indenture or the Securities by the Company and the
consummation of the transactions contemplated hereby and thereby.
(i) Except for the Company's agreement to file a registration
statement covering the resale of approximately 40,661 shares of Common
Stock issued in connection with its acquisition of substantially all of the
assets of Storytown USA, Inc. and Fantasy Rides Corporation used in the
operation of The Great Escape and Splashwater Kingdom ("The Great Escape")
on December 4, 1996 and issuable in connection with the Company's
acquisition of Stuart as disclosed in the Company's Registration Statement
on Form S-2 (Registration No. 333-16573), all 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
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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 have
been amended so that such rights will not take effect prior to May 29,
1997.
(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, 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 in the Prospectus present fairly the financial condition and
results of operations of the entities purported to be shown thereby at the
dates and for the periods indicated, and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved. 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 form adjustments have been properly
applied to historical amounts in the compilation of such pro forma
financial statements.
(l) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company, The Great Escape and ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ LLP,
who have certified certain financial statements of Funtime Parks, Inc.
("Funtime") and Elitch Gardens Company ("Elitch Gardens") and ▇▇▇▇▇▇ &
Company, who have certified certain financial statements of FRE, Inc.
(Family Recreational Enterprises, Inc.) ("FRE") and Concord Entertainment
Company ("Concord"), whose reports appear in the Prospectus and who have
each delivered the respective initial letters referred to in Section 6(f)
hereof, are independent public accountants as required by the Securities
Act and the Rules and Regulations.
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(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 liens arising under the New
Credit Facility and such liens, encumbrances and defects 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 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 ▇▇▇▇
registrations, copyrights and licenses necessary for the conduct of their
respective businesses as presently conducted 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.
(p) There are no legal or governmental proceedings pending to which
the Company or any of the Subsidiaries is a party or of which any property
or assets of the Company or any of the Subsidiaries is the subject which,
if determined adversely to the Company or any of the Subsidiaries, might
have a Material Adverse Effect or are otherwise required to be disclosed in
the Prospectus; and to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others.
(q) The conditions for use of Form S-2, 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.
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(s) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand, which is required
to be described in the Prospectus which is not so described.
(t) No labor disturbance by the employees of the Company exists or,
to the knowledge of the Company, is imminent which might be expected to
have a Material Adverse Effect .
(u) The Company is in compliance in all material respects with all
presently 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 would have any liability; the Company has not
incurred and does not expect to incur 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 would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which might reasonably be expected to cause
the loss of such qualification.
(v) The Company and each of the Subsidiaries are in compliance in all
material 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
material state and local laws and regulations relating to the safety of its
theme park and water park operations.
(w) The Company has filed all federal, 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, and has 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 have, a Material Adverse Effect.
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(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,
(ii) incurred any material liability or obligation, direct or contingent,
other than liabilities and obligations which were incurred in the ordinary
course of business, (iii) entered into any material transaction not in the
ordinary course of business or (iv) declared or paid any dividend on its
capital stock.
(y) The Company (i) makes and keeps accurate books and records and
(ii) maintains 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 its financial statements in conformity with generally
accepted accounting principles and to maintain accountability for its
assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the recorded accountability for its
assets is compared with existing assets at reasonable intervals.
(z) Neither the Company nor any of the Subsidiaries (i) is in
violation of its charter or by-laws (or its partnership agreement, as
applicable), (ii) is in default in any material respect, and no event has
occurred which, with notice or lapse of time or both, would constitute such
a default, in the due performance or observance of any term, covenant or
condition contained in any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which it is a
party or by which it is bound or to which any of its properties or assets
is subject or (iii) is in violation in any material respect of any material
law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or has failed to obtain any
material license, permit, certificate, franchise or other governmental
authorization or permit necessary to the ownership of its property or to
the conduct of its business.
(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.
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(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, except as disclosed in the Registration Statement, 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, except as disclosed in the Registration Statement, with
respect to which the Company or any of the Subsidiaries have knowledge,
except for any such spill, discharge, leak, emission, injection, escape,
dumping or release which would not have or would not be reasonably likely
to have, singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, a Material
Adverse Effect; and the terms "hazardous wastes", "toxic wastes",
"hazardous substances" and "medical wastes" shall have the meanings
specified in any applicable local, state, federal and foreign laws or
regulations with respect to environmental protection.
(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.
2. PURCHASE OF THE SECURITIES BY THE UNDERWRITERS. On the basis of
the representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and to sell to the
several Underwriters and each of the Underwriters, severally and not jointly,
agrees to purchase the principal amount of the Securities set opposite that
Underwriter's name in Schedule 1 hereto at a purchase price equal to % of
the principal amount thereof, plus accrued interest, if any, from 1997.
The Company shall not be obligated to deliver any of the Securities to
be delivered except upon payment for all the Securities to be purchased as
provided herein.
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3. DELIVERY OF AND PAYMENT FOR THE SECURITIES. Delivery of and
payment for the Securities shall be made at the office of Cravath, Swaine &
▇▇▇▇▇, Worldwide Plaza, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 A.M.,
New York City time, on the third 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 "Delivery Date." On the Delivery Date, the Company shall
deliver or cause to be delivered the Securities to the Underwriters for the
account of each Underwriter against payment to or upon the order of the Company
of the purchase price by wire transfer in immediately available funds. Time
shall be of the essence (except that the Company will not be responsible for any
delay resulting from any action or inaction of any Underwriter) and delivery at
the time and place specified pursuant to this Agreement is a further condition
of the obligations of each Underwriter hereunder. Upon delivery, the Securities
shall be registered in such names and in such denominations as the
Representatives shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the checking and
packaging of the certificates for the Securities, the Company shall make the
certificates representing the Securities available for inspection by the
Underwriters in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to the Delivery Date.
4. 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 supplement to the Prospectus or any amended Prospectus has
been filed and to furnish the Underwriters with copies thereof; upon your
request, to cause the Rule 462(b) Registration Statement, properly
completed, to be filed with the Commission pursuant to Rule 462(b) and to
provide evidence satisfactory to the Underwriters of such filing; to advise
the Underwriters, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Securities for offering or sale in
any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request
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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
Securities or any other securities relating thereto and if at such time any
events shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary to amend or supplement the Prospectus or
to file under the Exchange Act any document incorporated by reference in
the Prospectus in order to comply with the Securities Act or the Exchange
Act, to notify the Underwriters and, upon their request, to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many copies as the Underwriters may from
time to time reasonably request of an amended or supplemented Prospectus
which will correct such statement or omission or effect such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the
Prospectus that may, in the judgment of the Company or the Underwriters, be
required by the Securities Act or requested by the Commission;
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(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus, any Prospectus pursuant to
Rule 424 of the Rules and Regulations or any Rule 462(b) Registration
Statement to furnish a copy thereof to the Underwriters and counsel for the
Underwriters and obtain the consent of the Underwriters to the filing;
(f) As soon as practicable after the Effective Date (it being
understood that the Company shall have until at least 410 days after the
end of the Company's current fiscal quarter), to make generally available
to the Company's security holders and to deliver to the Underwriters an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Securities Act and the Rules
and Regulations (including, at the option of the Company, Rule 158);
(g) For a period of five years following the Effective Date, to
furnish to the Underwriters copies of all materials furnished by the
Company to its public shareholders and all public reports and all reports
and financial statements furnished by the Company to the principal national
securities exchange upon which the Securities may be listed pursuant to
requirements of or agreements with such exchange or to the Commission
pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(h) Promptly from time to time to take such action as the
Underwriters may reasonably request to qualify the Securities for offering
and sale (or obtain an exemption from registration) under the securities
laws of such jurisdictions as the Underwriters may request and to comply
with such laws so as to permit the continuance of sales and dealings
therein in such jurisdictions for as long as may be necessary to complete
the distribution of the Securities; 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 Securities;
(i) To apply the net proceeds from the sale of the Securities being
sold by the Company as set forth in the Prospectus; and
(j) To take such steps as shall be necessary to ensure that neither
the Company nor any subsidiary shall become an "investment company" within
the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
14
5.EXPENSES. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Securities and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto and the preparation, printing and filing under
the Trust Indenture Act of the Indenture and the Statement of Eligibility and
Qualification of the Trustee on Form T-1; (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 and any other related documents in connection with the offering,
purchase, sale and delivery of the Securities; (e) the filing fees incident to
securing any required review by the National Association of Securities Dealers,
Inc. of the terms of sale of the Securities; (f) any applicable listing or other
fees; (g) the fees and expenses of qualifying the Securities under the
securities laws of the several jurisdictions as provided in Section 4(h) and of
preparing, printing and distributing a Blue Sky Memorandum (including related
fees and expenses of counsel to the Underwriters); (h) all fees and expenses of
in its capacity as a qualified independent underwriter;
(i) the fees and expenses of the Trustee and any agent of the Trustee and the
fees and disbursements of any counsel for the Trustee in connection with the
Indenture and the Securities; (j) any fees or expenses charged by securities
rating services for rating the Securities; (k) the costs of preparing
certificates representing the Securities; and (l) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; PROVIDED that, except as provided in this Section 5 and in
Section 10, the Underwriters shall pay their own costs and expenses, including
the costs and expenses of their counsel, any transfer taxes on the Securities
which they may sell and the expenses of advertising any offering of the
Securities made by the Underwriters.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on the Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company 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 4(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
15
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 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 & ▇▇▇▇▇,
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
Securities, the Registration Statement and the Prospectus, and all other
legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel
for the Underwriters, and the Company shall have furnished to such counsel
all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) ▇▇▇▇ Marks & ▇▇▇▇▇ LLP shall have furnished to the Underwriters
its written opinion, as counsel to the Company, addressed to the
Underwriters and dated the Delivery Date, in form reasonably satisfactory
to the Underwriters, to the effect that:
(i) The Company and each of its corporate Subsidiaries have been
duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of
incorporation; Frontier City Partners is validly existing as a limited
partnership in good standing under the laws of Oklahoma; and the
Company, the corporate Subsidiaries and Frontier City Partners are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective businesses
requires such qualification except where the failure to so qualify
would not have a Material Adverse Effect and have all corporate or
partnership power and authority necessary to own or hold their
respective properties and conduct the businesses in which they are
engaged as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company
16
now outstanding have been duly and validly authorized and issued, are
fully paid and non-assessable and conform to the description thereof
contained in the Prospectus; to such counsel's knowledge, all of the
issued shares of capital stock of each corporate Subsidiary of the
Company have been duly and validly authorized and issued and are fully
paid, non-assessable and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities or
claims, except for liens or encumbrances arising under the New Credit
Facility; and 100% of the partnership interest in Frontier City
Partners is held directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims, except for liens and
encumbrances arising under the New Credit Facility;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company, and, assuming due authorization, execution
and delivery thereof by the Trustee, constitutes a valid and legally
binding instrument of the Company enforceable against the Company in
accordance with its terms, (A) subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or effecting creditors' rights
generally and general equitable principles (whether considered in a
proceeding in equity or at law) and (B) except that the remedy of
specific performance and other forms of equitable relief may be
subject to certain equitable defenses and to the discretion of the
court before which proceedings may be brought;
(iv) The Securities have been duly authorized, executed, issued
and delivered by the Company, and assuming due authentication thereof
by the Trustee and upon payment and delivery in accordance with this
Agreement, will constitute valid and legally binding obligations of
the Company, enforceable against the Company in accordance with their
terms and entitled to the benefits of the Indenture, (A) subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
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
(B) except that the remedy of specific performance and other forms of
equitable relief may be subject to certain equitable defenses and to
the discretion of the court before which proceedings may be brought;
(v) The Indenture and the Securities conform in all material
respects to the statements concerning them in the Prospectus;
17
(vi) To the best of such counsel's knowledge and other than as
set forth in the Prospectus, there are no legal or governmental
proceedings pending to which the Company or any of the Subsidiaries is
a party or of which any property or assets of the Company or any of
the Subsidiaries is the subject which, if determined adversely to the
Company or any of the Subsidiaries, might have a Material Adverse
Effect; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vii) 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;
(viii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to
the Delivery Date (other than the financial statements and related
schedules therein and other financial or statistical data included
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the
Securities Act and the Rules and Regulations; and the documents
incorporated by reference in the Prospectus (other than the financial
statements and related schedules therein and other financial or
statistical data included therein, as to which such counsel need
express no opinion), when they were filed with the Commission,
complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the Commission
thereunder;
(ix) To the best of such counsel's knowledge, there are no
contracts or other documents which are required to be described in the
Prospectus or filed as exhibits to the Registration Statement by the
Securities Act or by the Rules and Regulations which have not been
described or filed as exhibits to the Registration Statement or
incorporated therein by reference as permitted by the Rules and
Regulations;
18
(x) This Agreement has been duly authorized, executed and
delivered by the Company;
(xi) The issue and sale of the Securities being delivered on
the Delivery Date by the Company and the compliance by the Company
with all of the provisions of this Agreement, the Indenture and the
Securities will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of the Subsidiaries is a party or by which the Company or any of
the Subsidiaries is bound or to which any of the property or assets of
the Company or any of the Subsidiaries is subject, nor will such
actions result in any violation of the provisions of the charter or
by-laws of the Company or any of the Subsidiaries or, assuming that
all consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the
purchase and distribution of the Securities by the Underwriters are
obtained, any Federal or New York State statute, the Delaware General
Corporation Law, or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over the Company or any of the Subsidiaries or any of
their properties or assets; and, except for the registration of the
Securities under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required
under the Exchange Act and applicable state or foreign securities laws
in connection with the purchase and distribution of the Securities by
the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement, the Indenture and the Securities by the Company and the
consummation of the transactions contemplated hereby; and
(xii) Except for the Company's agreement to file a registration
statement covering the resale of approximately 40,662 shares of Common
Stock issued in connection with its acquisition of The Great Escape
and issuable in connection with its acquisition of Stuart as disclosed
in the Company's Registration Statement on Form S-2 (Registration
No. 333-16573), to the best of such counsel's knowledge, all
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
19
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 have been amended so that such rights will
not take effect prior to May 29, 1997.
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 the
States of Delaware, Ohio, Oklahoma, Colorado, California or Massachusetts;
and, in respect of matters of fact, may rely upon certificates of officers
of the Company or the Subsidiaries, PROVIDED that such counsel shall state
that it believes that both the Underwriters and it are justified in relying
upon such certificates. Such counsel shall also have furnished to the
Underwriters a written statement, addressed to the Underwriters and dated
the Delivery Date, in form satisfactory to the Underwriters, to the effect
that (x) such counsel has acted as counsel to the Company on a regular
basis (although the Company is also represented with respect to litigation
matters, regulatory matters and certain other matters, by other outside
counsel), has acted as counsel to the Company in connection with financing
transactions since February 1992 and has acted as counsel to the Company in
connection with the preparation of the Registration Statement, and
(y) based on the foregoing, no facts have come to the attention of such
counsel which lead it to believe that (I) the Registration Statement (other
than the financial statements and other financial and statistical data
contained therein, as to which such counsel need express no belief), as of
the Effective Date, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statements therein not misleading, or that the
Prospectus (other than the financial statements and other financial and
statistical data contained therein, as to which such counsel need express
no belief) contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading or (II) any documents incorporated by
reference in the Prospectus (other than the financial statements and other
financial and statistical data contained therein, as to which such counsel
need express no belief) when they were filed with the Commission contained
an untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
opinion and statement may be qualified by a statement
20
to the effect that such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for the statements made in
the Prospectus under the captions "Description of Securities" and
"Description of Indebtedness", insofar as such statements relate to the
Securities or concern legal matters.
(e) The Underwriters shall have received from Cravath, Swaine &
▇▇▇▇▇, counsel for the Underwriters, such opinion or opinions and such
statement or statements, dated the Delivery Date, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(f) At the time of execution of this Agreement, the Underwriters
shall have received from (I) KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Underwriters, addressed to the Underwriters
and dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance
with the applicable requirements relating to the qualification of
accountants under Rule 2-01 of Regulation S-X of the Commission and
(ii) stating, as of the date hereof (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Prospectus, as of a date not more
than five days prior to the date hereof), the conclusions and findings of
such firm with respect to the financial information and other matters
ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings, except for the financial
information and other matters covered in the letters from KPMG Peat Marwick
LLP, Ernst & Young LLP and ▇▇▇▇▇▇ & Company described immediately
hereinafter; from (II) KPMG Peat Marwick LLP a letter, in form and
substance satisfactory to the Underwriters, addressed to the Underwriters
and dated the date hereof (i) confirming that they are independent
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 The Great Escape as have been previously agreed to by such firm
and the Underwriters; from (III) KPMG Peat Marwick LLP a letter, in form
and substance satisfactory to the Underwriters, addressed to the
Underwriters and dated the date hereof (i) confirming that they are
independent accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to
21
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 Stuart Amusement
Company and its subsidiaries as have been previously agreed to by such
firm and the Underwriters; from (IV) Ernst & Young LLP a letter, in
form and substance satisfactory to the Representatives, addressed to
the Underwriters and dated the date hereof (i) confirming that they
are independent accountants within the meaning of the Securities Act
and are in compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof, the conclusions
and findings of such firm with respect to certain financial
information and other matters relating to Funtime and its subsidiaries
as have been previously agreed to by such firm and the Underwriters;
from (V) Ernst & Young LLP a letter, in form and substance
satisfactory to the Underwriters, addressed to the Underwriters and
dated the date hereof (i) confirming that they are independent
accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission and (ii) stating, as of the date hereof, the conclusions
and findings of such firm with respect to certain financial
information and other matters relating to Elitch Gardens as have been
previously agreed to by such firm and the Underwriters; and from
(VI) ▇▇▇▇▇▇ & Company a letter, in form and substance satisfactory to
the Underwriters, addressed to the Underwriters and dated the date
hereof (i) confirming that they are independent accountants within the
meaning of the Securities Act and are in compliance with the
applicable requirements relating to the qualification of accountants
under Rule 2-01 of Regulation S-X of the Commission and (ii) stating,
as of the date hereof, the conclusions and findings of such firm with
respect to certain financial information and other matters relating to
FRE and Concord, as have been previously agreed to by such firm and
the Representatives.
(g) With respect to the letters of KPMG Peat Marwick LLP,
Ernst & Young LLP and ▇▇▇▇▇▇ & Company 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 Representatives a letter (the "bring-down
letters") of each of such accountants, addressed to the Underwriters
and dated the Delivery Date (i) confirming that they are independent
public accountants within the meaning of the Securities Act and are in
compliance with the applicable requirements relating to the
qualification of accountants under Rule 2-01 of Regulation S-X of the
Commission, (ii) stating, as of the date of the bring-down letter (or,
in the case of the letter of KPMG Peat Marwick LLP, with
22
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.
(h) The Company shall have furnished to the Underwriters a
certificate, dated the 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 in Section 1 are true and correct as of such
Delivery Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Sections 6(a) and 6(i) 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.
(i) 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
change, in or affecting the general affairs, management, financial
position, stockholders' equity (or partners' equity, as applicable) or
results of operations of the Company and its subsidiaries, otherwise,
in each case, than as set forth or contemplated in the Prospectus, the
effect of which, in any such case, is, in the judgment of the
Representatives, so material (to the Company and its Subsidiaries,
taken as a whole) and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Securities being delivered on the Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(j) Subsequent to the execution and delivery of this Agreement
(i) no downgrading shall have occurred in the rating accorded the
Securities or any of
23
the Company's other 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 the Securities or any of the Company's other debt
securities.
(k) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in
securities generally on the New York Stock Exchange or the American
Stock Exchange or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter
market, shall have been suspended or minimum prices shall have been
established on any such exchange or such market by the Commission, by
such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have
been declared by Federal or state authorities, (iii) the United States
shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall
have been a declaration of a national emergency or war by the United
States or (iv) there shall have occurred such a material adverse
change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the
United States shall be such) as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or
inadvisable to proceed with the public offering or delivery of the
Securities being delivered on the Delivery Date on the terms and in
the manner contemplated in the Prospectus.
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.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter
(including any Underwriter in its role as qualified independent underwriter
pursuant to the rules of the National Association of Securities Dealers, Inc.),
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 Securities), to which that Underwriter,
officer, employee or controlling person may become subject, under the
24
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or supplement
thereto or (B) in any blue sky application or other document prepared or
executed by the Company (or based upon any written information furnished by the
Company) specifically for the purpose of qualifying any or all of the Securities
under the securities laws of any jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (ii) the
omission or alleged omission to state in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or in any amendment or supplement
thereto, or in any Blue Sky Application any material fact required to be stated
therein or necessary to make the statements therein not misleading or (iii) any
act or failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating in any manner to, the Securities or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i) or (ii) above (PROVIDED that the Company 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 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 7(a) shall not enure to the benefit of the
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Securities concerned if, to the extent that such sale
was an initial sale by such Underwriter and any such loss, claim, damage or
liability of such Underwriter is a result of the fact that both (A) a copy of
the Prospectus was not sent or given to such person at or prior to the written
confirmation of the sale of such Securities to such person, and (B) the untrue
statement or omission in the Preliminary Prospectus was corrected in the
Prospectus unless, in either case, such failure to deliver the Prospectus was a
result of
25
noncompliance by the Company with Section 4(c). The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter or to any officer, employee or controlling person of that
Underwriter.
The Company also will indemnify and hold harmless the Independent
Underwriter, its officers and employees and each person, if any, who controls
the Independent Underwriter within the meaning of the Securities Act, from and
against any and all losses, claims, damages, liabilities and judgments incurred
as a result of the Independent Underwriter's participation as a "qualified
independent underwriter" within the meaning of Rule 2720 of the Conduct Rules of
the National Association of Securities Dealers, Inc. in connection with the
offering of the Securities, except for any losses, claims, damages, liabilities
and judgments resulting from the Independent Underwriter's or such controlling
person's willful misconduct or gross negligence.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors,
and each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application or (ii) the omission or alleged
omission to state in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such Underwriter furnished to the Company through the Underwriters by or on
behalf of that Underwriter specifically for inclusion therein, and shall
reimburse the Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company 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 or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of any claim or the commencement of any action, the
indemnified party shall,
26
if a claim in respect thereof is to be made against the indemnifying party under
this Section 7, 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 7 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 7. 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 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; PROVIDED, HOWEVER, that
the Underwriters shall have the right, upon written notice to the Company, to
employ counsel to represent jointly the Underwriters and their respective
officers, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company under this Section 7 if, in the reasonable
judgment of the Underwriters it is advisable for the Underwriters and those
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 by the Company. 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; PROVIDED HOWEVER, that, if indemnity is sought pursuant to the second
paragraph of Section 7(a), then, in addition to such counsel for the indemnified
parties, the indemnifying party shall be liable for the reasonable fees and
expenses of not more than one separate counsel (in addition to any necessary
local counsel) for the Independent Underwriter in its capacity as a "qualified
independent underwriter," its officers and employees and all persons, if any,
who control the Independent Underwriter within the meaning of the Securities
Act, if, in the reasonable judgment of the Independent Underwriter there may
exist a conflict or interest between the Independent Underwriter and the other
indemnified parties. In the case of any such separate counsel for the
Independent Underwriter and such control persons of the Independent Underwriter,
such counsel shall be designated in writing by the Independent Underwriter. No
indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in
27
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 7 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 7(a) or 7(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 on the one hand and the Underwriters on the other from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not 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 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 on the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Securities purchased under this Agreement (before
deducting expenses) received by the Company on the one hand, and the total
underwriting discounts and commissions received by the Underwriters with respect
to the shares of the Securities purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the shares of the
Securities under this Agreement, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Company and the Underwriters agree that
will not receive any additional benefits hereunder for serving as
the Independent Underwriter in connection with the offering and sale of the
Securities. The Company and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Section 7(d) were to be
determined by pro rata allocation (even if the Underwriters were
28
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section shall be deemed to include, for purposes of this
Section 7(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 7(d), no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public was offered to the public exceeds the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 7(d) are several in proportion to their
respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the Securities by the
Underwriters set forth on the cover page of, the legend concerning
over-allotments on the second page of and the concession and reallowance figures
appearing 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.
8. DEFAULTING UNDERWRITERS.
If, on the 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 Securities which the defaulting
Underwriter agreed but failed to purchase on the Delivery Date in the respective
proportions which the principal amount of Securities set opposite the name of
each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
aggregate principal amount of Securities 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 Securities on the Delivery Date if the aggregate principal
amount of the Securities which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the Securities to be
purchased on the Delivery Date, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Securities which it agreed to purchase on the Delivery Date pursuant to the
terms of Section 2. If the foregoing maximums are
29
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 Securities to be purchased on the Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representatives do not
elect to purchase the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase on the Delivery Date, this Agreement
shall terminate without liability on the part of any non-defaulting Underwriter
or the Company, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Section 5. 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 8, purchases Securities which a defaulting
Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company for damages caused by its default. If
other underwriters are obligated or agree to purchase the Securities of a
defaulting or withdrawing Underwriter, either the 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.
9. 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 Securities if, prior to that time, any
of the events described in Sections 6(j), 6(k) or 6(l) shall have occurred or if
the Underwriters shall decline to purchase the Securities for any reason
permitted under this Agreement.
10. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company shall
fail to tender the Securities for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company is
not fulfilled (other than by reason of any events described in Section 6(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 Securities, and promptly following demand the Company shall pay the full
amount thereof to the Underwriters. If this Agreement is terminated pursuant to
Section 8 by
30
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.
11. NOTICES, ETC. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World
Financial Center, New York, New York 10285, Attention: Syndicate
Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇), with a copy, in the case of any
notice pursuant to Section 8(c), to the Director of Litigation, Office
of the General Counsel, ▇▇▇▇▇▇ Brothers Inc., ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (Fax: ▇▇▇-▇▇▇-▇▇▇▇);
PROVIDED, HOWEVER, that any notice to a Underwriter pursuant to Section 7(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 ▇▇▇▇▇▇ Brothers Inc.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, 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 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 7(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 12, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
31
13. SURVIVAL. The respective indemnities, representations, warranties
and agreements of the Company and the Underwriters contained in this Agreement
or made by or on behalf of them, respectively, pursuant to this Agreement, shall
survive the delivery of and payment for the Securities and shall remain in full
force and effect, regardless of any investigation made by or on behalf of any of
them or any person controlling any of them.
14. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY". For
purposes of this Agreement, (a) "business day" means any day on which the New
York Stock Exchange, Inc. is open for trading and (b) "Subsidiary" means each of
Funtime Parks, Inc., an Ohio corporation, Funtime, Inc., an Ohio corporation,
Wyandot Lake, Inc., an Ohio corporation, Darien Lake Theme Park and Camping
Resort, Inc., a New York corporation, Tierco Maryland, Inc., a Delaware
corporation, Tierco Water Park, Inc., an Oklahoma corporation, Frontier City
Properties, Inc., an Oklahoma corporation, Frontier City Partners, Limited
Partnership, an Oklahoma limited partnership, and Stuart Amusement
Company, a Massachusetts corporation (collectively, the "Subsidiaries").
15. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF NEW YORK.
16. 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.
17. 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.
32
If the foregoing correctly sets forth the agreement between the
Company and the Underwriters, please indicate your acceptance in the space
provided for that purpose below.
Very truly yours,
PREMIER PARKS INC.
By
--------------------------------
Name:
Title:
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
CHASE SECURITIES INC.
▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇▇ ▇▇▇▇ LLC
By ▇▇▇▇▇▇ BROTHERS INC.
By
---------------------
Authorized Representative
Schedule 1
Principal Amount
Underwriters of Securities
------------ ---------------
▇▇▇▇▇▇ Brothers Inc. . . . . . . . . . . . . . . . . .
Chase Securities . . . . . . . . . . . . . . . . . . .
▇▇▇▇▇ ▇▇▇▇▇▇ Inc. . . . . . . . . . . . . . . . . . .
▇▇▇▇▇▇ ▇▇▇▇ LLC . . . . . . . . . . . . . . . . . . . .
Total. . . . . . . . . . . . . . . . . . . . . . . $125,000,000