Exhibit 2.3 (a)
$200,000,000
SUN INTERNATIONAL HOTELS LIMITED
SUN INTERNATIONAL NORTH AMERICA, INC.
8 7/8% Senior Subordinated Notes due 2011
PURCHASE AGREEMENT
August 9, 2001
4
PURCHASE AGREEMENT
August 9, 2001
DEUTSCHE BANC ALEX. BROWN INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
CIBC WORLD MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇ FARGO BROKERAGE SERVICES, LLC
FLEET SECURITIES, INC.
THE ROYAL BANK OF SCOTLAND PLC
c/o Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Sun International Hotels Limited, an international business company organized
under the laws of the Commonwealth of The Bahamas ("Sun International"), and Sun
International North America, Inc., a Delaware corporation and a wholly owned subsidiary of
Sun International ("SINA" and, collectively with Sun International, the "Issuers"), propose,
subject to the terms and conditions stated herein, to issue and sell to you (the "Initial
Purchasers") $200,000,000 aggregate principal amount of their 8 7/8% Senior Subordinated
Notes due 2011 (the "Securities"), to be issued pursuant to an indenture dated the Closing
Date (the "Indenture") between the Issuers, the Guarantors signatory hereto (the
"Guarantors") and The Bank of New York, as trustee (the "Trustee"). The Securities are to
be guaranteed (the "Guarantees") by the Guarantors. The Guarantees shall be in the form
contained in the Indenture. Unless the context requires otherwise, all references herein to
the Securities shall be deemed to include the Guarantees.
The Securities will be offered and sold to the Initial Purchasers without
being registered under the Securities Act of 1933, as amended (the "Act"), in reliance on an
exemption therefrom. The Issuers have prepared a preliminary offering memorandum, dated
August 2, 2001 (such preliminary offering memorandum being hereinafter referred to as the
"Preliminary Offering Memorandum"), and an offering memorandum, dated August 9, 2001 (such
offering memorandum, in the form first furnished to the Initial Purchasers for use in
connection with the offering of Securities, being hereinafter referred to as the "Offering
Memorandum"), setting forth information regarding the Issuers and the Securities. Each
Issuer hereby confirms that it has authorized the use of the Preliminary Offering Memorandum
and the Offering Memorandum in connection with the offering and resale of the Securities.
All capitalized terms used and not defined herein shall have the meaning set forth in the
Offering Memorandum.
The Issuers understand that you propose to make an offering of the Securities
on the terms set forth in the Offering Memorandum, as soon as you deem advisable after this
Agreement has been executed as delivered, (i) to persons in the United States whom you
reasonably believe to be qualified institutional buyers ("Qualified Institutional Buyers")
as defined in Rule 144A promulgated by the Securities and Exchange Commission (the
"Commission") under the Act, as such rule may be amended from time to time ("Rule 144A"), in
a transaction under Rule 144A and (ii) to non- "U.S. persons" (as defined in Regulation S
under the Act).
The Initial Purchasers and their direct and indirect transferees of the
Securities will be entitled to the benefits of the Registration Rights Agreement,
substantially in the form attached hereto as Exhibit A (the "Registration Rights
---------
Agreement"), pursuant to which the Issuers and the Guarantors have agreed, among other
things, to file a registration statement (the "Registration Statement") with the Securities
and Exchange Commission (the "Commission") registering the Securities or the Exchange
Securities (as defined in the Registration Rights Agreement) under the Act.
1. Representations and Warranties of the Issuers and the Guarantors. Each of
----------------------------------------------------------------
the Issuers and Guarantors, jointly and severally, represents and warrants to, and agrees
with, you that:
(a) As of their respective dates, the Offering Memorandum and the
Preliminary Offering Memorandum do not, and at the Closing Date (as defined herein) the
Offering Memorandum will not, contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however, that the
-------- -------
representations and warranties contained in this paragraph (a) shall not apply to statements
in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any
supplement or amendment to them) made in reliance upon and in conformity with information
relating to any Initial Purchaser furnished to the Issuers by such Initial Purchaser in
writing for use in the Preliminary Offering Memorandum or the Offering Memorandum (or any
supplement or amendment to them). The Issuers and the Initial Purchasers acknowledge for
all purposes under this Agreement (including this paragraph and Section 6 hereof) that the
statements set forth in the last paragraph of the cover page of the Offering Memorandum, the
first, second and third paragraphs and the penultimate sentence of the sixth paragraph of
the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only
information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf
of any Initial Purchaser expressly for use in the Preliminary Offering Memorandum or the
Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any
information (and therefore are not responsible for any statements or omissions) pertaining
to any arrangement or agreement with respect to any party other than the Initial Purchasers.
(b) Each Issuer and Guarantor has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to carry on its business as it is
currently being conducted or is proposed to be conducted (as discussed in the Offering
Memorandum) and to own, lease and operate its properties, and each is duly qualified and is
in good standing as a foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified could not, singly or in the
aggregate, have a material adverse effect on the properties, results of operations,
financial condition or prospects of Sun International and its subsidiaries, taken as a whole
(a "Material Adverse Effect").
(c) Each of the Issuers and the Guarantors has all requisite corporate
power and authority to execute, deliver and perform its respective obligations under the
Registration Rights Agreement and the Indenture.
(d) The capitalization of Sun International is as set forth in the
Offering Memorandum under the caption "Capitalization" in the column "Actual." All of the
issued and outstanding shares of capital stock of, or other ownership interests in, each of
the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and
owned by Sun International, free and clear of any security interest, mortgage, pledge,
claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any
restrictions on transfer, voting trusts or other defects of title whatsoever except for the
pledges of the shares of Sun International's subsidiaries under the Third Amended and
Restated Revolving Credit Agreement dated as of November 1, 1999, as amended, among Sun
International Bahamas Limited, Sun International, certain of Sun International's
subsidiaries and certain financial institutions and The Bank of Nova Scotia, as
administrative and collateral agent (the "Existing Credit Agreement"). There are no
outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable
securities, commitments of sale or Liens related to or entitling any person to purchase or
otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun
International or any Guarantor, except as disclosed in the Offering Memorandum. All of the
subsidiaries of the Issuers are listed in Schedule 2(c) attached hereto.
(e) The Securities, the Guarantees, the Indenture and the Registration
Rights Agreement conform in all material respects to the descriptions thereof contained in
the Offering Memorandum.
(f) All the outstanding shares of capital stock of Sun International
have been duly authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights; the relinquishment agreement between Trading
Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the
description thereof contained in the Offering Memorandum; each of the agreements described
in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun
International Management Limited ("SIML"), or TCA is a party conforms in all material
respects to the description thereof contained in the Offering Memorandum, and Sun
International believes that each such agreement is effective and enforceable against the
other party, except as disclosed in the Offering Memorandum.
(g) Neither Sun International nor any of its subsidiaries is (i) in
violation of its respective charter or by-laws, (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or any of their
respective properties or assets, or (iii) in default in the performance of any obligation,
bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture,
mortgage, deed of trust or other contract, lease or other instrument to which Sun
International or any of its subsidiaries is a party or by which it or any of them is bound,
or to which any of the property of Sun International or any of its subsidiaries is subject
except, in the case of clauses (ii) and (iii), for such defaults that could not reasonably
be expected to have a Material Adverse Effect.
(h) Each Issuer and Guarantor has all the requisite corporate power to
execute, deliver and perform its obligations under this Agreement and to authorize, issue
and sell the Securities and Guarantees being sold by it. The execution, delivery and
performance of this Agreement, the Registration Rights Agreement and the Indenture, the
issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all
the provisions hereof and thereof and the consummation of the transactions contemplated
hereby and thereby will not require any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other governmental body (except those
already received and such as may be required under state securities laws or Blue Sky laws
and with respect to the Registration Rights Agreement, the Act and the regulations of the
National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or
constitute a breach or violation of (i) any of the charters or by-laws of Sun International
or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default
under or cause an acceleration of, any obligation, bond, agreement or condition contained in
any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed
of trust or other contract, lease or other instrument (other than the necessary consent
under the Existing Credit Agreement) to which Sun International or any of its subsidiaries
is a party or by which it or any of them is bound, or to which any of the property of Sun
International or any of its subsidiaries is subject or (iii) any laws, administrative
regulations or rulings or orders of any court or governmental agency, body or official
having jurisdiction over Sun International, any of its subsidiaries or their respective
properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or
violations that could not reasonably be expected to have a Material Adverse Effect.
(i) No action has been taken and no statute, rule, regulation or order
has been enacted, adopted or issued by any governmental body, agency or official which
prevents the issuance of the Securities, prevents or suspends the use of the Offering
Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in
any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or
order of any nature by any foreign, federal or state court of competent jurisdiction has
been issued with respect to Sun International or any of its subsidiaries which would prevent
or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or
the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof;
and no action, suit or proceeding before any court or arbitrator or any governmental body,
agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun
International, threatened against, Sun International or any of its subsidiaries which, if
adversely determined, could interfere with or adversely affect the issuance of the
Securities or in any manner draw into question the validity of this Agreement, the
Securities, the Indenture or the Registration Rights Agreement.
(j) There is no action, suit or proceeding before or by any court or
governmental agency or body, domestic or foreign, pending against or, to the knowledge of
Sun International, affecting Sun International or any of its subsidiaries or any of their
respective assets or properties, which could have a Material Adverse Effect, or which could
materially and adversely affect the performance by either Issuer or any Guarantor of its
obligations pursuant to this Agreement or the transactions contemplated hereby and, to the
best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such
action, suit or proceeding is threatened or contemplated.
(k) Except as disclosed in the Offering Memorandum, (i) neither Sun
International nor any of its subsidiaries is in violation of any federal, state, local or
foreign laws or regulations relating to pollution or protection of human health or the
environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International
nor any of its subsidiaries has received any communication (written or oral), whether from a
governmental authority or otherwise, alleging any such violation or noncompliance, and there
are no circumstances, either past or present or that are reasonably foreseeable, that could
reasonably be expected to lead to such violation in the future, (B) there is no pending or,
to the best of Sun International's knowledge, threatened claim, action, investigation or
notice (written or oral) by any person or entity alleging potential liability for
investigatory, cleanup, or governmental responses costs, or natural resources or property
damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in
or release into the environment of any emissions, discharges or releases of toxic or
hazardous substances, materials or wastes or petroleum and petroleum products at any
location owned, leased or operated by Sun International or any of its subsidiaries, now or
in the past, or (y) circumstances forming the basis of any violation or alleged violation of
any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge
of Sun International, there are no past or present actions, activities, circumstances,
conditions, events or incidents that could form the basis of any Environmental Claim against
Sun International or any of its subsidiaries, now or in the past, or against any person or
entity whose liability for any Environmental Claim Sun International or any of its
subsidiaries has retained or assumed either contractually or by operation of law, in each of
clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum, (i) each of Sun
International, its subsidiaries, the persons listed as executive officers under the caption
"Management" in the Offering Memorandum, TCA and SIML has all certificates, consents,
exemptions, orders, permits, licenses, authorizations or other approvals or rights of and
from, and has made all declarations and filings with, all foreign, federal, state, local and
other governmental authorities, all self-regulatory organizations and all courts and other
tribunals, including, without limitation, all such authorizations with respect to engaging
in gaming, hotel and resort operations, as applicable, in The Bahamas, Connecticut, New
Jersey, Mauritius and the Maldives required to own, lease, license and use its properties
and assets and to conduct its current business in the manner described in the Offering
Memorandum (each, an "Authorization"), except to the extent that the failure to possess such
Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all
such Authorizations are valid and in full force and effect, except as could not reasonably
be expected to have a Material Adverse Effect; (iii) each of Sun International, its
subsidiaries, each of the persons listed as executive officers under the caption
"Management" in the Offering Memorandum, TCA and SIML is in compliance in all respects with
the terms and conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities and governing bodies having jurisdiction with respect thereto,
except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none
of Sun International, its subsidiaries, the persons listed as executive officers under the
caption "Management" in the Offering Memorandum, SIML nor TCA has received any notice of
proceedings relating to the revocation or modification of any such Authorization and no such
Authorization contains any restrictions except as could not reasonably be expected to have a
Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun
International, any of its subsidiaries, any of the persons listed as executive officers
under the caption "Management" in the Offering Memorandum, SIML nor TCA has any reason to
believe that (i) any Regulatory Authority (as defined below) is considering modifying,
limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun
International, any of its subsidiaries, any of the persons listed as executive officers
under the caption "Management" in the Offering Memorandum, SIML or TCA or (ii) that the
National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities
in The Bahamas, Connecticut, New Jersey, Mauritius or the Maldives (collectively the
"Regulatory Authorities"), or any other governmental agencies are investigating Sun
International, any of its subsidiaries, SIML or TCA or related parties (other than normal
overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino
activities of Sun International, its subsidiaries, any of the persons listed as executive
officers under the caption "Management" in the Offering Memorandum, SIML and TCA), which
investigation could reasonably be expected to have a Material Adverse Effect.
(m) Except as disclosed in the Offering Memorandum or as could not
reasonably be expected to have a Material Adverse Effect, Sun International and each of its
subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes
not yet due and payable and except for the pledges under the Existing Credit Agreements, to
all property and assets described in the Offering Memorandum as being owned by it and such
properties and assets are in the condition and suitable for use as so described. All leases
to which Sun International or any of its subsidiaries is a party are valid and binding and
no default has occurred or is continuing thereunder, which could reasonably be expected to
have a Material Adverse Effect.
(n) Sun International, SINA and each Guarantor maintain insurance at
least in such amounts and covering at least such risks as is adequate for the conduct of
their respective businesses and the value of their respective properties.
(o) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, that have certified the
applicable financial statements of Sun International and SINA, filed with the Commission,
are independent public accountants with respect to such corporations as applicable, as
required by the Act.
(p) The financial statements, together with the related schedules and
notes included in the Offering Memorandum, comply as to form in all material respects with
the requirements of the Act and present fairly the consolidated financial position, results
of operations and changes in financial position of Sun International, SINA and their
subsidiaries at the respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance with generally
accepted accounting principles in the United States of America ("GAAP") consistently applied
throughout the periods involved, except as disclosed therein; and the other financial and
statistical information and data set forth in the Offering Memorandum are accurately
presented and prepared on a basis consistent with such financial statements and the books
and records of Sun International and SINA, as applicable. The pro forma financial
statements and other pro forma financial information included in the Offering Memorandum
present fairly in all material respects the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described therein, and, in
the opinion of Sun International, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to the
transactions or circumstances referred to therein, except that Regulation S-X of the Act
does not require, and does not provide rules and guidelines with respect to presentation of
the financial statements for the last twelve months ended June 30, 2001.
(q) Except as described in the Offering Memorandum, subsequent to the
respective dates as of which information is given in the Offering Memorandum and up to the
Closing Date (i) neither Sun International nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, which are material to Sun International
and its subsidiaries, singly or in the aggregate, nor entered into any material transaction
not in the ordinary course of business, (ii) there has been no decision or judgment in the
nature of litigation, administrative or regulatory proceedings or arbitration that could
reasonably be expected to have a Material Adverse Effect and (iii) there has not been any
material adverse change or any development which could involve, singly or in the aggregate,
a material adverse change, in the properties, results of operations, financial condition or
prospects of Sun International and its subsidiaries, taken as a whole (any of the items set
forth in clauses (i), (ii), or (iii) of this paragraph (q), a "Material Adverse Change").
(r) Neither Sun International nor any of its subsidiaries is (i) an
"investment company" or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended (the "1940 Act") or (ii) a "holding
company" or a "subsidiary company" of a holding company, or an "affiliate" thereof within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
(s) No authorization, approval, consent or order of, or filing with,
any court or governmental body, agency or official, including the Regulatory Authorities, is
necessary in connection with the transactions contemplated by this Agreement except such as
may be required by the state securities or Blue Sky laws or regulations and, with respect to
the Registration Rights Agreement, the Act and the regulations of the NASD; neither Sun
International nor any of its affiliates is presently doing business with the government of
Cuba or with any person or affiliate located in Cuba; each of this Agreement, the Offering
Memorandum, the Indenture and the Registration Rights Agreement has been presented to the
Regulatory Authorities to the extent required by law, and such documents and the
transactions contemplated hereby or thereby have been approved by or on behalf of the
Regulatory Authorities to the extent required by law, and such approvals have not been
revoked, modified or rescinded.
(t) Sun International and each of its subsidiaries maintains a system
of internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with GAAP and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any
differences.
(u) All material Tax (as defined below) returns required to be filed
by Sun International and each of its subsidiaries in any jurisdiction have been filed and
all such returns are true, complete and correct in all material respects. All material
Taxes that are due or claimed to be due from Sun International and its subsidiaries have
been paid other than those (i) currently payable without penalty or interest or (ii) being
contested in good faith and by adequate proceedings and, in either case, for which adequate
reserves have been established on the books and records of Sun International and its
consolidated subsidiaries in accordance with GAAP. Sun International and its subsidiaries
are not parties to any material pending action, proceeding, inquiry or investigation by any
governmental authority for the assessment or collection of Taxes, nor does Sun International
have any knowledge of any such proposed or threatened action, proceeding, inquiry, or
investigation. For purposes of this Agreement, the terms "Tax" and "Taxes" shall mean all
federal, state, local and foreign taxes, and other assessments of a similar nature (whether
imposed directly or through withholding), including any interest, additional to tax, or
penalties applicable thereto.
(v) None of the Issuers nor any agent acting on their behalf has taken
or will take any action that is reasonably likely to cause the issuance or sale of the
Securities to violate Regulation T, U or X of the Board of Governors of the Federal Reserve
System, in each case as in effect on the Closing Date.
(w) All of Sun International's subsidiaries that are not Guarantors
when considered together as if one subsidiary would not constitute a "significant
subsidiary" as such term is defined in or by Regulation S-X under the Act.
(x) The Securities and the Guarantees to be issued and sold hereunder
have been duly and validly authorized by the Issuers and the Guarantors, respectively, and
the Securities and the Guarantees, when they are authenticated by the Trustee and issued,
sold and delivered in accordance with this Agreement and the Indenture against payment
therefor as provided by this Agreement, will have been duly and validly executed,
authenticated, issued and delivered and will constitute valid and binding obligations of the
Issuers and the Guarantors, respectively, enforceable against the Issuers and the
Guarantors, respectively, in accordance with their terms and entitled to the benefits
provided by the Indenture, except to the extent that enforcement thereof may be limited by
(A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (B) general principles of
equity.
(y) The Indenture has been duly and validly authorized and, when
executed and delivered by the Issuers, the Guarantors and the Trustee, will constitute a
valid and binding obligation of the Issuers and the Guarantors, enforceable against each of
them in accordance with its terms, except to the extent that enforcement thereof may be
limited by (A) bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights generally and (B) general principles of
equity.
(z) Each of this Agreement and the Registration Rights Agreement has
been duly and validly authorized, executed and delivered by the Issuers and the Guarantors
and constitutes a valid and binding agreement of the Issuers and the Guarantors, enforceable
against each of them in accordance with its terms, except (i) to the extent that enforcement
thereof may be limited by (A) bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally and (B)
general principles of equity and (ii) as rights to indemnity and contribution hereunder may
be limited by applicable law.
(aa) When the Securities are issued and delivered pursuant to this
Agreement, such Securities will not be of the same class (within the meaning of Rule 144A)
as securities of Sun International or any of its subsidiaries which are listed on a national
securities exchange registered under Section 6 of the Exchange Act or quoted in a U.S.
automated inter-dealer quotation system.
(bb) None of Sun International, SINA, the Guarantors or any of their
subsidiaries or any affiliate of any of them (as defined in Rule 501(b) under the Act) has,
directly or through any agent, sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Act) which is or will be
integrated with the sale of the Securities in a manner that would require the registration
of the Securities under the Act; provided, however, that the Issuers and Guarantors make no
-------- -------
representations or warranties as to the activities of the Initial Purchasers.
(cc) None of Sun International, SINA, the Guarantors or any of their
subsidiaries or any person acting on their behalf has (i) engaged, in connection with the
offering of the Securities, in any form of general solicitation or general advertising (as
those terms are used within the meaning of Regulation D under the Act) or (ii) solicited
offers for, or offered or sold, such Securities by means of any form of general solicitation
or general advertising (as those terms are used in Regulation D under the Act) or in any
manner involving a public offering within the meaning of Section 4(2) of the Act; provided,
--------
however, that the Issuers and Guarantors make no representations or warranties as to the
-------
activities of the Initial Purchasers.
(dd) Each certificate signed by any officer of Sun International or
any of its subsidiaries and delivered to the Initial Purchasers or counsel for the Initial
Purchasers in connection herewith shall be deemed to be a representation and warranty by Sun
International or such subsidiary to each Initial Purchaser as to the matters covered
thereby.
2. Purchase, Sale and Delivery of the Securities. On the basis of the
---------------------------------------------
representations, warranties, covenants and agreements herein contained, but subject to the
terms and conditions herein set forth, (i) the Issuers hereby agree to issue and sell the
Securities to the several Initial Purchasers, and (ii) each Initial Purchaser hereby agrees,
severally and not jointly, to purchase from the Issuers, at a purchase price of 98.00% of
the principal amount thereof (the "Purchase Price"), the respective principal amount of
Securities set forth in Schedule I hereto opposite the name of such Initial Purchaser, plus
accrued interest, if any, from August 14, 2001 to the Closing Date.
Delivery of and payment of the Purchase Price for the Securities shall be made
in your offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other location
as may be mutually acceptable. Such delivery and payment shall be made at 10:00 a.m., New
York time, on August 14, 2001, or at such other time as shall be agreed upon by you and the
Issuers. The time and date of such delivery and payment are herein called the "Closing
Date." Delivery of the Securities shall be made to you for your account against payment of
the purchase price for the Securities by wire transfer of immediately available funds to an
account or accounts to be designated by the Issuers at least one business day prior to the
Closing Date.
The Securities shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full business days prior
to the Closing Date. The Issuers will permit you to examine and package such Securities for
delivery at least one full business day prior to the Closing Date.
The Initial Purchasers have advised the Issuers that the Initial Purchasers
propose to offer the Securities for resale upon the terms and conditions set forth in this
Agreement and in the Offering Memorandum. Each of the Initial Purchasers hereby, severally,
and not jointly, represents and warrants to, and agrees with, the Issuers that it (i) has
not and will not solicit offers for, or offer or sell, such Securities by means of any form
of general solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning of Section
4(2) of the Act, and has not engaged and will not engage in any directed selling efforts in
connection with the Securities and has complied and will comply with the offering
restrictions requirement of Regulation S, (ii) will solicit offers for such Securities
pursuant to Rule 144A, Regulation S or resales not involving a public offering, as
applicable, only from, and will offer, sell or deliver such Securities, as part of its
distribution thereof, only to, respectively, (A) in the case of offers inside the United
States, persons in the United States whom it reasonably believes to be qualified
institutional buyers within the meaning of Rule 144A ("Qualified Institutional Buyers") or,
if any such person is buying for one or more institutional accounts for which such person is
acting as fiduciary or agent, only when such person has represented to the Initial
Purchasers that each such account is a Qualified Institutional Buyer, to whom notice has
been given that such sale or delivery is being made in reliance on Rule 144A, and, in each
case, in transactions under Rule 144A and (B) in the case of offers outside the United
States, to persons other than U.S. persons ("non-U.S. purchasers," which term shall include
dealers or other professional fiduciaries in the United States acting on a discretionary
basis for non-U.S. beneficial owners (other than an estate or trust)); provided, however,
-------- -------
that, in the case of this clause (B), in purchasing such Notes such persons are deemed to
have represented and agreed as provided under the caption "Notice to Investors" contained in
the Offering Memorandum (or, if the Offering Memorandum is not in existence, in the
Preliminary Offering Memorandum).
Each Initial Purchaser severally agrees that, at or prior to confirmation of
sale of the Securities, other than a sale pursuant to Rule 144A, such Initial Purchaser will
have sent to each distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Securities from it during the restricted period a
confirmation or notice to substantially the following effect:
"The Securities covered hereby have not been registered under
the U.S. Securities Act of 1933 (the "Securities Act") and may
not to be offered or sold within the United States or to, or
for the account or benefit of, U.S. persons (i) as part of
their distribution at any time or (ii) otherwise until 40 days
after the later of the date of the commencement of the offering
and the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities
Act. Terms used above have the meanings given to them by
Regulation S."
3. Covenants of the Issuers. Each Issuer and Guarantor covenants and agrees
------------------------
with you as follows:
(a) Each Issuer and Guarantor will cooperate with the Initial
Purchasers in endeavoring to qualify the Securities for sale under the securities laws of
such jurisdictions as the Initial Purchasers may reasonably have designated in writing and
will make such applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided that no Issuer or Guarantor shall be required
--------
to qualify as a foreign corporation or to file a general consent to service of process in
any jurisdiction where it is not now so qualified or required to file such a consent. The
Issuers and Guarantors will, from time to time, prepare and file such statements, reports,
and other documents, as are or may be required to continue such qualifications in effect for
so long a period as the Initial Purchasers may reasonably request for distribution of the
Securities.
(b) At any time prior to the completion of the distribution of the
Securities by the Initial Purchasers to purchasers who are not affiliates thereof, the
Issuers will give the Initial Purchasers notice of their intention to prepare any supplement
or amendment to the Offering Memorandum, will furnish the Initial Purchasers with copies of
any such amendment, supplement or other document a reasonable amount of time prior to such
proposed filing or use, and will not use any such amendment or supplement to which the
Initial Purchasers or counsel for the Initial Purchasers shall reasonably object within five
days of being furnished a copy thereof.
(c) The Issuers have furnished or will furnish to the Initial
Purchasers such number of copies of the Offering Memorandum (as amended or supplemented) as
the Initial Purchasers may reasonably request.
(d) At any time prior to the completion of the distribution of the
Securities by the Initial Purchasers to purchasers who are not affiliates thereof, the
Issuers will advise you promptly and, if requested by you, confirm such advice in writing,
of the happening of any event that makes any statement of a material fact made in the
Offering Memorandum (as amended or supplemented from time to time) untrue or which requires
the making of any addition to or change in the Offering Memorandum (as amended or
supplemented from time to time) in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. If, during the period specified
in the first sentence of this paragraph, any event shall occur as a result of which it is
necessary, in the reasonable opinion of counsel for the Initial Purchasers, to amend or
supplement the Offering Memorandum in order to make the Offering Memorandum not misleading
in the light of the circumstances existing at the time it is delivered to a purchaser, the
Issuers will forthwith amend or supplement the Offering Memorandum (in form and substance
reasonably satisfactory to counsel for the Initial Purchasers) so that, as so amended or
supplemented, the Offering Memorandum will not include an untrue statement of material fact
or omit to state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to the purchaser, not
misleading, and the Issuers will furnish to the Initial Purchasers a reasonable number of
copies of such amendment or supplement.
(e) At any time prior to completion of the distribution of the
Securities by the Initial Purchasers to purchasers who are not affiliates thereof, Sun
International and each of its subsidiaries will, as required, file promptly all documents
required to be filed with the Commission pursuant to Section 13, 14, or 15(d) of the
Exchange Act.
(f) None of Sun International, SINA, the Guarantors or their
subsidiaries will solicit any offer to buy or offer or sell the Securities by means of any
form of general solicitation or general advertising.
(g) None of Sun International, SINA, the Guarantors or their
subsidiaries or any affiliate of any of them (as defined in Rule 501(b) of the Act) will
offer, sell or solicit offers to buy or otherwise negotiate in respect of any security (as
defined in the Act) which will be integrated with the sale of the Securities in a manner
that would require the registration of the Securities under the Act.
(h) During the period from the Closing Date to two years after the
Closing Date, none of Sun International, SINA, the Guarantors or their subsidiaries will
not, and will not permit any "affiliate" (as defined in Rule 144 under the Act) of any of
them to, resell any of the Securities that have been reacquired by them, except for
Securities purchased by Sun International or its subsidiaries or any of their affiliates and
resold in a transaction registered under the Act.
(i) Sun International and SINA will, so long as the Securities are
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3) under the
Act, either (i) file reports and other information with the Commission under Section 13 or
15(d) of the Exchange Act, or (ii) in the event it is not subject to Section 13 or 15(d) of
the Exchange Act, make available to holders of the Securities and prospective purchasers of
the Securities designated by such holders, upon request of such prospective purchasers, the
information required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit
compliance with Rule 144A in connection with resales of the Securities.
(j) The Issuers will, if requested by the Initial Purchasers, use
their best efforts in cooperation with the Initial Purchasers to permit the Securities to be
eligible for clearance and settlement through The Depository Trust Company.
(k) Each of the Securities will bear the legend contained in "Notice
to Investors" in the Offering Memorandum and upon the other terms stated therein, except
after such Securities are resold or exchanged pursuant to a registration statement effective
under the Act.
(l) Sun International will, for the shorter of the period the
Securities remain outstanding and five years from the Closing Date, deliver to the Initial
Purchasers copies of annual reports and copies of all other documents, reports and
information furnished by Sun International or any of its subsidiaries to their
securityholders or filed with any securities exchange pursuant to the requirements of such
exchange or with the Commission pursuant to the Act or the Exchange Act.
(m) The Issuers shall apply the net proceeds of their sale of the
Securities as set forth in the Offering Memorandum.
(n) The Issuers shall not invest, or otherwise use the proceeds
received by the Issuers from their sale of the Securities in such a manner as would require
Sun International or any of its subsidiaries to register as an investment company under the
1940 Act or the rules and regulations thereunder.
(o) For a period of 90 days after the date of this Agreement, except
as described in or contemplated by the Offering Memorandum, the Issuers will not, without
your prior written consent (which consent will not be unreasonably or untimely withheld),
issue, sell, offer or agree to sell, or otherwise dispose of, directly or indirectly, any
debt securities of the Issuers or their subsidiaries (other than the Securities or the New
Notes) (it being understood that debt incurred under the Existing Credit Agreement, as
amended, or any replacement thereof, is not a debt security).
(p) The Issuers and the Guarantors will not claim the benefit of any
usury laws against any holders of Securities or Guarantees, respectively.
(q) Each Issuer will use its reasonable best efforts to do and perform
all things required or necessary to be done and performed under this Agreement by such
Issuer prior to the Closing Date and to satisfy all conditions precedent to the delivery of
the Securities.
4. Payment of Expenses. The Issuers agree with you, jointly and severally,
-------------------
that, whether or not the transactions contemplated hereby are consummated or this Agreement
is terminated, they will pay and be responsible for all costs, charges, liabilities,
expenses, fees and taxes incurred in connection with or incident to (i) the preparation,
printing (including word processing), distribution and delivery of the Offering Memorandum
(including financial statements and exhibits), each preliminary offering memorandum, and all
amendments and supplements to any of them, (ii) the preparation, printing (including word
processing), execution, distribution and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, the certificates representing the Securities, the preliminary
and final Blue Sky memoranda and all other agreements, memoranda, correspondence and other
documents printed, distributed and delivered in connection with the offering of the
Securities (excluding in each case any fees and disbursements of counsel for the Initial
Purchasers, other than such fees and disbursements relating to the printing and delivery of
the preliminary and final Blue Sky Memoranda specified in clause (iii) below), (iii) the
qualification of the Securities for offer and sale under the securities or Blue Sky laws of
the jurisdictions referred to in paragraph 3(a) (including in each case the reasonable fees
and disbursements of counsel for the Initial Purchasers relating to such qualification and
any memoranda relating thereto and any filing fees in connection therewith), (iv) furnishing
such copies of the Offering Memorandum, the Preliminary Offering Memorandum and all
amendments and supplements thereto as may be reasonably requested for use in connection with
the offering or sale of the Securities by the Initial Purchasers or by dealers to whom
Securities may be sold, (v) the rating of the Securities by one or more rating agencies,
(vi) the fees and expenses of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the Indenture and the
Securities, (vii) all expenses and listing fees incurred in connection with the application
for quotation of the Securities on the PORTAL Market, and (viii) the performance by the
Issuers of their other obligations under this Agreement, including (without limitation) all
expenses and taxes incident to the sale and delivery of the Securities to you. The Issuers
hereby agree and acknowledge that the Initial Purchasers shall not be responsible for any
fees or expenses of the Issuers in connection with the performance by either of them of
their obligations under this Agreement.
5. Conditions of Initial Purchasers' Obligations. The several obligations of
---------------------------------------------
the Initial Purchasers to purchase the Securities under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) All the representations and warranties of the Issuers and the
Guarantors contained in this Agreement shall be true and correct on the Closing Date with
the same force and effect as if made on and as of the Closing Date. Each Issuer and
Guarantor shall have performed or complied with all of its obligations and agreements herein
contained and required to be performed or complied with by it prior to the Closing Date.
(b) (i) Since the date of the latest balance sheet of Sun
International included in the Offering Memorandum there shall not have been any Material
Adverse Change, or any development involving a prospective Material Adverse Change, (ii)
since the date of the latest balance sheet of Sun International included in the Offering
Memorandum there shall not have been any material adverse change, or any development
involving a prospective material adverse change, in the capital stock or debt of Sun
International or its subsidiaries, (iii) Sun International and its subsidiaries shall have
no liability or obligation, direct or contingent, which is material to Sun International and
its subsidiaries, taken as a whole, other than those reflected in the Offering Memorandum
and (iv) on the Closing Date you shall have received a certificate of Sun International and
the Guarantors, dated the Closing Date, signed by the Chief Financial Officer and Executive
Vice President-Corporate Development of Sun International, in their capacities as officers
of Sun International and the Guarantors, confirming the matters set forth in paragraphs (a)
and (b) of this Section 5.
(c) You shall have received on the Closing Date an opinion (reasonably
satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General Counsel of Sun International, to the effect that:
(i) (A) all Authorizations of Sun International and its
subsidiaries are valid and in full force and effect; and (B) to the best of such
counsel's knowledge, each of Sun International, its subsidiaries and TCA is in
compliance in all material respects with the terms and conditions of all such
Authorizations and with the rules and regulations of the regulatory authorities and
governing bodies having jurisdiction with respect thereto, except where the failure
to have such Authorizations or to be in compliance could not reasonably be expected
to have a Material Adverse Effect;
(ii) the descriptions in the Offering Memorandum of contracts to
which any of Sun International, any of its subsidiaries, SIML or TCA is a party have
been reviewed by such counsel and are accurate summaries thereof in all material
respects (except for financial data included therein or omitted therefrom, as to
which counsel need express no opinion);
(iii) Sun International and each of its subsidiaries is duly
qualified and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership or leasing
of property requires such qualification, except where the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect;
(iv) neither (i) Sun International nor any of the Guarantors
is in violation of its respective charter or by-laws and (ii) Sun International nor
any of its subsidiaries is in default in the performance of any obligation, bond,
agreement or condition contained in any bond, note, debenture, indenture or other
evidence of indebtedness or any indenture, mortgage, deed of trust or other contract,
lease or other instrument to which Sun International or any of its subsidiaries is a
party or by which it or any of its subsidiaries or their respective property is
bound, except, in each case, for defaults which could not reasonably be expected to
have a Material Adverse Effect;
(v) there are no legal or governmental proceedings pending or,
except as disclosed in the Offering Memorandum, to such counsel's knowledge,
threatened to which Sun International, SINA or any Guarantor is a party or to which
any of their respective property is subject which, if determined adversely, would
reasonably be expected to have a Material Adverse Effect or adversely affect the
performance by either Issuer or any Guarantor of its obligations pursuant to this
Agreement; and
(vi) the execution, delivery and performance of this
Agreement, the Indenture and the Registration Rights Agreement by the Issuers, the
issuance and sale of the Securities and the Guarantees, compliance by the Issuers
with all the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a breach or
violation of (A) any of the charters or by-laws of Sun International or any of its
subsidiaries, (B) any of the terms or provisions of, or constitute a default under,
or cause an acceleration of, any obligation, bond, agreement, or condition contained
in any bond, note, debenture, or other evidence of indebtedness or any indenture,
mortgage, deed of trust or other contract, lease or other instrument to which Sun
International or any of its subsidiaries is a party or by which Sun International or
any of its subsidiaries or their respective properties are subject or (C) to such
counsel's knowledge, any laws, administrative regulations or rulings or orders of any
court or governmental agency, body or official having jurisdiction over Sun
International, any of its subsidiaries or their respective properties except in the
case of clauses (B) and (C) for such conflicts, breaches or violations that could not
reasonably be expected to have a Material Adverse Effect.
In addition, such counsel shall state that no facts have come to such
counsel's attention that caused such counsel to believe that the Offering Memorandum, as
amended or supplemented, as of its date and the Closing Date 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. Without limiting the foregoing, such counsel may further state that it assumes
no responsibility for, and has not independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules and other financial, accounting
and statistical data included in the Offering Memorandum.
(d) You shall have received on the Closing Date an opinion (reasonably
satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of
Cravath, Swaine & ▇▇▇▇▇, United States counsel for Sun International, to the effect that:
(i) based solely on certificates from the Secretary of State of
Delaware, each of SINA and GGRI, Inc. (collectively, the "Delaware Obligors") has
been duly incorporated and is a corporation validly existing and in good standing
under the laws of the State of Delaware, with full corporate power and authority to
own, lease and operate its properties and conduct its business as described in the
Offering Memorandum;
(ii) to our knowledge, no authorization, approval or other action
by, and no notice to, consent of, order of, or filing with, any United States federal
or New York governmental or regulatory body is required for the consummation of the
transactions contemplated by the Purchase Agreement or the Registration Rights
Agreement, except such as may be required under the blue sky laws of any jurisdiction
or, with respect to the Registration Rights Agreement, the Act, the Trust Indenture
Act and the regulations of the NASD;
(iii) the Securities (including the Guarantees) and Indenture
conform in all material respects as to legal matters to the descriptions thereof
contained in the Offering Memorandum;
(iv) the Indenture has been duly authorized, executed and
delivered by each Delaware Obligor and constitutes a legal, valid and binding
obligation of each Issuer and each Guarantor enforceable against each Issuer and each
Guarantor in accordance with its terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws affecting
creditors' rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, regardless of whether considered in a proceeding in equity or
at law);
(v) the Securities (including the Guarantees) have been duly
authorized and, when executed and authenticated in accordance with the Indenture and
delivered to and paid for by the Initial Purchasers pursuant to the Purchase
Agreement, will constitute legal, valid and binding obligations of each Issuer and
Guarantor entitled to the benefits of the Indenture and enforceable against each
Issuer and Guarantor in accordance with their terms (subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other
similar laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, regardless of whether in a proceeding in
equity or at law);
(vi) assuming (A) the accuracy of, and compliance with, the
representations, warranties and covenants of the Issuers and the Guarantors in
Section 1 and Section 3 of the Purchase Agreement, (B) the accuracy of, and
compliance with, the representations, warranties and covenants of the Initial
Purchasers in Section 2 of the Purchase Agreement, (C) the accuracy of the
representations and warranties of each of the purchasers to whom the Initial
Purchasers initially resell the Securities as specified in Section 2 of the Purchase
Agreement, (D) the compliance by the Initial Purchasers with the offering and
transfer procedures and restrictions described in the Offering Memorandum and (E)
receipt by each of the purchasers to whom the Initial Purchasers initially resell the
Securities of a copy of the Offering Memorandum prior to such sale, it is not
necessary in connection with the offer, sale and delivery of the Securities or in
connection with the initial resale of such Securities in the manner contemplated by
the Purchase Agreement and the Offering Memorandum to register the Securities under
the Act, it being understood that no opinion is expressed as to any subsequent resale
of any Securities;
(vii) each of the Purchase Agreement and the Registration Rights
Agreement has been duly authorized, executed and delivered by the Delaware Obligors;
(viii) the statements made in the Offering Memorandum under the
heading "Tax Consequences - Certain United States Tax Consequences to Non-U.S.
Holders" as they purport to describe the material United States federal tax
consequences of an investment in the Securities by a Non-U.S. Holder (as defined in
the Offering Memorandum), fairly summarize the matters therein described; and
(ix) neither Sun International nor any of its subsidiaries is an
"investment company" within the meaning of, or is registered or otherwise required to
be registered under, the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that it has participated in conferences
with certain officers of, and with the accountants for, Sun International concerning the
preparation of the Offering Memorandum. Such counsel shall also advise you that, although
it has made certain inquiries and investigations in connection with the preparation of the
Offering Memorandum, the limitations inherent in the role of outside counsel are such that
it cannot and does not assume responsibility for the accuracy or completeness of the
statements made in the Offering Memorandum and that, subject to the foregoing, such
counsel's work in connection with this matter did not disclose any information that gave
such counsel reason to believe that the Offering Memorandum as of its date and the Closing
Date, included or includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Without limiting the foregoing, such counsel may further state that it assumes
no responsibility for, expresses no view as to, and has not independently verified, the
accuracy, completeness or fairness of the financial statements, notes and schedules and
other financial, accounting and statistical data included in the Offering Memorandum. Such
counsel may also state that it has assumed in its examination of all relevant documents the
genuineness of all signatures, has relied as to factual matters upon the statements of
officers and other representatives of Sun International and as to matters relating to the
laws of other jurisdictions, on the opinions of local counsel for Sun International in such
jurisdictions, as to which laws such counsel need express no opinion.
(e) You shall have received on the Closing Date an opinion (reasonably
satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Associate General Counsel of Sun International, to the effect that:
(i) Sun International and each of the Bahamian Guarantors has been
duly incorporated, is validly existing as a corporation in good standing under the
laws of the Commonwealth of The Bahamas and has the corporate power and authority
required to carry on its business as it is currently being conducted or is proposed
to be conducted (as discussed in the Offering Memorandum) and to own, lease and
operate its properties;
(ii) Sun International and the Bahamian Guarantors have all the
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement, the Indenture and the Registration Rights Agreement
and to authorize, issue and sell the Securities and Guarantees as contemplated by
this Agreement;
(iii) the Securities have been duly and validly authorized,
executed and delivered by Sun International and the Guarantees have been duly and
validly authorized, executed and delivered by the Bahamian Guarantors;
(iv) all of the outstanding shares of capital stock of, or other
ownership interests in, each of Sun International's subsidiaries have been duly and
validly authorized and issued and are fully paid and non-assessable (to the extent
governed by Bahamas law), and are owned by Sun International, free and clear of any
Lien except for the pledges by Sun International under the Existing Credit Agreement;
(v) all the outstanding shares of capital stock of Sun
International have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights;
(vi) each of this Agreement, the Indenture and the Registration
Rights Agreement has been duly and validly authorized, executed and delivered by Sun
International and each of the Bahamian Guarantors;
(vii) the capitalization of Sun International is as set forth in
the Offering Memorandum under the caption "Capitalization" in the column "Actual;"
the statements in the Offering Memorandum under the captions "Risk Factors -- You may
have difficulty enforcing judgments against us or our directors or management outside
the United States," "Risk Factors -- We are subject to extensive governmental gaming
regulation, which may harm our business," "Risk Factors -- Our gaming operations are
subject to significant taxation and fees that increase our costs," "Business --
Certain Matters Affecting Our Bahamian Operations" and "Tax Consequences -- Certain
Bahamian Tax Considerations," insofar as such statements constitute summaries of
Bahamian statutes, regulations, legal and governmental proceedings and contracts to
which Sun International or any of its subsidiaries is a party, have been reviewed by
such counsel and are accurate summaries thereof in all material respects;
(viii) the execution, delivery and performance of this Agreement,
the Indenture and the Registration Rights Agreement by Sun International and each of
the Bahamian Guarantors, the issuance and sale of the Securities and the Guarantees,
compliance by Sun International and each of the Bahamian Guarantors, as applicable,
with all the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not conflict with or constitute a breach or
violation of (i) any Bahamian laws or administrative regulations, (ii) rulings or
orders of any Bahamian court or governmental agency, body or official having
jurisdiction over Sun International, any of its Bahamian subsidiaries or their
respective properties or (iii) the respective Memorandum or Articles of Association
of Sun International or any of its Bahamian Subsidiaries;
(ix) no authorization, approval, consent or order of any
governmental or regulatory agency, body or official or any court of the Commonwealth
of The Bahamas is required to be obtained in connection with the issuance and sale of
the Securities or the consummation of the transactions contemplated by this Agreement;
(x) there is no requirement under any Bahamas statute, rule or
regulation with respect to gaming which requires that any holder of the Securities,
solely in its capacity as a holder of the Securities, to apply for or receive any
individual license, any individual certificate or any other authorization from any
Bahamas authority to acquire or hold Securities under the Indenture; and
(xi) to the best of such counsel's knowledge, after due inquiry,
neither Sun International nor any of its Bahamian subsidiaries is in default or
violation of any Bahamian laws, administrative regulations or order of any court or
governmental agency, body, department, authority, board or official or other
regulatory body.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and Rome ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ P.C., special counsel to the Issuers, to the
effect that:
(i) Sun Cove has been duly incorporated is a corporation validly
existing and in good standing under the laws of the State of Connecticut, with full
corporate power and authority to own, lease and operate its properties and conduct
its businesses as described in the Offering Memorandum;
(ii) the Indenture, the Purchase Agreement and the Registration
Rights Agreement have been duly authorized and executed and delivered by Sun Cove;
(iii) the Guarantee has been duly authorized, executed and
delivered by Sun Cove;
(iv) the execution, delivery and performance of this Agreement,
the Indenture and the Registration Rights Agreement by Sun Cove, the issuance and
sale of the Guarantee, compliance by Sun Cove with all the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and thereby will
not conflict with or constitute a breach or violation of (i) any Connecticut laws or
administrative regulations applicable to Sun Cove, (ii) any rulings or orders of any
Connecticut court or governmental agency, body or official having jurisdiction over
Sun Cove or its properties or (iii) the charter and by-laws of Sun Cove;
(v) none of the issuance and sale of the Securities or the
performance of the Issuers' obligations pursuant to this Agreement, the Registration
Rights Agreement or the Indenture or the receipt of payments by TCA under the Mohegan
Sun Casino relinquishment agreement will violate any federal, tribal or Connecticut
statute, rule or regulation with respect to gaming to which any of the Issuers, their
subsidiaries or TCA is subject or by which any of them is bound or to which any of
their properties are subject;
(vi) no authorization, approval, consent or order of any federal,
tribal or Connecticut authority with jurisdiction over gaming is required to be
obtained in connection with the issuance and sale of the Securities and the
transactions contemplated by this Agreement and the Registration Rights Agreement;
(vii) there is no requirement under any federal, tribal or
Connecticut statute, rule or regulation with respect to gaming which requires any
holder of the Securities, solely in its capacity as a holder of the Securities, to
apply for or receive any individual license, any individual certificate or any other
authorization from any federal, tribal or Connecticut authority to acquire or hold
Securities under the Indenture;
(viii) each of the Issuers, their subsidiaries, TCA and their
employees has such permits from all regulatory or governmental officials, bodies and
tribunals, federal, tribal or Connecticut, with respect to gaming laws, as are
necessary to conduct its business in the manner described in the Offering Memorandum;
and
(ix) the TCA partnership agreement is a valid and binding
agreement of Sun Cove, enforceable against Sun Cove in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws now or hereafter in effect relating to creditors' rights
generally and to general principles of equity (regardless of whether enforceability
is considered in a proceeding at law or in equity).
(g) You shall have received on the Closing Date an opinion (reasonably
satisfactory to you and counsel for the Initial Purchasers), dated the Closing Date, of
▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, British Virgin Islands counsel to Sun International, to the effect
that:
(i) Sun International Management Limited ("SIML") is a corporation
duly organized, validly existing and in good standing under the laws of the British
Virgin Islands;
(ii) the Indenture, the Purchase Agreement and the Registration
Rights Agreement have been duly authorized, executed and delivered by ▇▇▇▇;
(iii) the Guarantee has been duly authorized, executed and
delivered by ▇▇▇▇;
(iv) the execution, delivery and performance of this Agreement,
the Indenture and the Registration Rights Agreement by SIML, the issuance and sale of
the Guarantee, compliance by SIML with all the provisions hereof and thereof and the
consummation of the transactions contemplated hereby and thereby will not conflict
with or constitute a breach or violation of (i) any British Virgin Islands laws or
administrative regulations, (ii) rulings or orders of any British Virgin Islands
court or governmental agency, body or official having jurisdiction over SIML or its
properties or (iii) the charter and by-laws of SIML; and
(v) to the best knowledge of such counsel, after due inquiry, ▇▇▇▇
is not in material default under, or in material violation of, any material laws or
regulations or any order of any court or governmental agency, authority, department,
board or other regulatory body.
The opinions of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Rome ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ P.C. and ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ described in paragraphs (d), (e),
(f) and (g) above shall be rendered to you at the request of Sun International and shall so
state therein.
(h) You shall have received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, counsel for the Initial Purchasers, an opinion dated the Closing Date as to such
matters as the Initial Purchasers may reasonably require.
(i) You shall have received at or prior to the Closing Date from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP a memorandum or summary, in form and substance
satisfactory to the Initial Purchasers, with respect to the qualification for offering and
sale by the Initial Purchasers of the Securities under the state securities or Blue Sky laws
of such jurisdictions as the Initial Purchasers may reasonably have designated to Sun
International.
(j) You shall have received on each of the date hereof and the Closing
Date a letter, dated the date hereof and the Closing Date, respectively, in form and
substance satisfactory to you, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating that in their opinion the financial statements and
schedules examined by them comply in form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and Regulations, and
containing such other statements and information as is ordinarily included in accountants'
"comfort letters" to Initial Purchasers with respect to the financial statements and certain
financial and statistical information contained in the Offering Memorandum.
(k) The Initial Purchasers were notified by the Nasdaq Stock Market,
Inc. that it had designated the Securities as PORTAL eligible.
(l) The Registration Rights Agreement shall have been executed and
delivered by the Issuers and the Guarantors.
(m) Prior to the Closing Date, Sun International and its subsidiaries
party thereto shall have obtained the necessary consent to the Existing Credit Agreement
relating to the issuance of the Securities and the terms of the Indenture satisfactory to
the Initial Purchasers, in their sole discretion.
The opinions and certificates mentioned in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in all material respects
satisfactory to the Initial Purchasers and to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP,
counsel for the Initial Purchasers.
If any of the conditions specified in this Section 5 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates, opinions,
written statements or letters furnished to you or to counsel for the Initial Purchasers
pursuant to this Section 5 shall not be in all material respects reasonably satisfactory in
form and substance to you and such counsel, all your obligations hereunder may be cancelled
by you at, or at any time prior to, the Closing Date. Notice of such cancellation shall be
given to Sun International in writing, or by telephone, telex or telegraph, confirmed in
writing.
6. Indemnification.
---------------
(a) The Issuers and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Initial Purchaser, (ii) each person, if any, who
controls any Initial Purchaser within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and (iii) the respective officers, directors, partners, employees,
representatives and agents of any Initial Purchaser or any controlling person, against any
and all losses, liabilities, claims, damages and out-of-pocket expenses whatsoever
(including but not limited to reasonable attorneys' fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any litigation,
investigation or proceeding, commenced or threatened, or any claim whatsoever, and any and
all amounts paid in settlement of any claim or litigation), joint or several, to which you
or any such person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Preliminary Offering Memorandum or the Offering Memorandum,
or in any supplement thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading; provided, however, that the Issuers and the Guarantors will not be liable in any
-------- -------
such case to the extent, but only to the extent, that any such loss, liability, claim,
damage or expense are caused by an untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with the Initial Purchasers'
Information, furnished in writing to the Issuers by such Initial Purchaser expressly for use
in the Offering Memorandum or the Preliminary Offering Memorandum (or any amendment or
supplement thereto); provided, further, that the Issuers and the Guarantors shall not be
-------- -------
liable to any Initial Purchaser with respect to any untrue statement or alleged untrue
statement or omission or alleged omission in any preliminary offering memorandum to the
extent that any such liabilities of an Initial Purchaser result from the fact that such
Initial Purchaser sold Securities to a person as to whom it shall be established by a court
of competent jurisdiction in a final judgment not subject to appeal or review that there was
not sent or given, at or prior to the written confirmation of such sale, a copy of the
Offering Memorandum or of the Offering Memorandum as then amended or supplemented if the
Issuers have previously furnished copies thereof to such Initial Purchaser and the
liabilities of such Initial Purchaser result from an untrue statement or omission of a
material fact contained in the preliminary offering memorandum which was corrected in the
Offering Memorandum or in the Offering Memorandum as then amended or supplemented. This
indemnity agreement will be in addition to any liability which the Issuers and the
Guarantors may otherwise have, including under this Agreement.
(b) Each Initial Purchaser, severally and not jointly, agrees to
indemnify and hold harmless (i) the Issuers and the Guarantors, (ii) each person, if any,
who controls any Issuer or any Guarantor within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and (iii) the respective officers, directors, partners,
employees, representatives and agents of the Issuers, the Guarantors and any controlling
person, against any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to attorneys' fees and any and all expenses whatsoever incurred
in investigating, preparing or defending against any litigation, commenced or threatened, or
any claim whatsoever and any and all amounts paid in settlement of any claim or litigation),
joint or several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Preliminary Offering Memorandum
or the Offering Memorandum, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with the Initial Purchasers' Information. This indemnity
agreement will be in addition to any liability which the Initial Purchasers may otherwise
have, including under this Agreement.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified party shall,
if a claim in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in writing of the
commencement thereof (but the failure so to notify an indemnifying party shall not relieve
it from any liability which it may have under this Section 6 except to the extent such
indemnifying party has been materially prejudiced by such failure as determined by a court
of competent jurisdiction in a final judgment not subject to appeal or review). In case any
such action is brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to participate therein,
and to the extent it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless (i) the employment of such counsel shall have
been authorized in writing by one of the indemnifying parties in connection with the defense
of such action, (ii) the indemnifying parties shall not have employed counsel to have charge
of the defense of such action within a reasonable time after notice of commencement of the
action, or (iii) such indemnified party or parties shall have reasonably concluded that
there may be defenses available to it or them which are different from or additional to
those available to one or all of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses shall be borne
by the indemnifying parties, it being understood, however, that the indemnifying parties
shall not, in connection with any one such action or separate but substantially similar
related actions arising out of the same general allegations or circumstances, be liable for
fees and expenses of more than one separate firm of attorneys (in addition to any
appropriate local counsel) at any time for the indemnified parties. Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent; provided,
--------
however, that such consent was not unreasonably withheld.
-------
7. Contribution. In order to provide for contribution in circumstances in
------------
which the indemnification provided for in Section 6 hereof is for any reason held to be
unavailable from any indemnifying party or is insufficient to hold harmless a party
indemnified thereunder, then each indemnifying party shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or proceeding or any
claims asserted, but after deducting in the case of losses, claims, damages, liabilities and
expenses suffered by any Issuer or Guarantor, any contribution received by any Issuer or
Guarantor from persons, other than you, who may also be liable for contribution, including
persons who control any Issuer or Guarantor within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and directors of any Issuer or Guarantor) to which any
indemnifying person may be subject, in such proportions as is appropriate to reflect the
relative benefits received by the Issuers and the Guarantors, on one hand and the Initial
Purchasers, on the other hand, from the offering of the Securities or, if such allocation is
not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to above but also the relative fault of the Issuers and the
Guarantors, on one hand and the Initial Purchasers, on the other hand, in connection with
the statements or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative benefits
received by the Issuers and the Guarantors, on the one hand and the Initial Purchasers on
the other shall be deemed to be in the same proportion as, in the case of the Issuers and
the Guarantors, the total proceeds from the offering (net of initial purchaser discounts and
commissions but before deducting expenses) received by the Issuers and the Guarantors, and
in the case of the Initial Purchasers, the initial purchaser shall bear to the total
discounts and commissions received by the Initial Purchasers, respectively, pursuant to
Section 2 of this Agreement. The relative fault of the Issuers and the Guarantors, on the
one hand, and the Initial Purchasers, on the other hand, shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to information supplied by
the Issuers and the Guarantors, on the one hand, or the Initial Purchasers, on the other
hand, and the parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Issuers, the Guarantors and the Initial
Purchasers agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 7, (i) in no case shall any Initial Purchaser be liable or
responsible for any amount in excess of the initial purchaser discount applicable to the
Securities purchased by such Initial Purchaser hereunder, and (ii) no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Initial Purchaser, and each
person, if any, who controls any Issuer or Guarantor within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and each director of any Issuer or Guarantor shall
have the same rights to contribution as any Issuer or Guarantor, subject in each case to
clauses (i) and (ii) of this Section 7. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 7 or otherwise. No
party shall be liable for contribution with respect to any action or claim settled without
its consent; provided, however, that such consent was not unreasonably withheld.
-------- -------
8. Default by an Initial Purchaser.
-------------------------------
(a) If any Initial Purchaser shall default in its obligation to
purchase the Securities hereunder, any other Initial Purchaser may in its discretion arrange
for itself or for another party or parties to purchase such Securities to which such default
relates on the terms contained herein. In the event that within five (5) calendar days
after such a default you do not arrange for the purchase of the Securities to which such
default relates as provided in this Section 8, this Agreement shall thereupon terminate,
without liability on the part of the Issuers with respect thereto (except in each case as
provided in Section 4, 6(a) and 7 hereof) or the non-defaulting Initial Purchasers, but
nothing in this Agreement shall relieve a defaulting Initial Purchaser of its liability, if
any, to the other Initial Purchasers and the Issuers for damages occasioned by its or their
default hereunder.
(b) In the event that the Securities to which the default relates are
to be purchased by any non-defaulting Initial Purchaser, or are to be purchased by another
party or parties as aforesaid, you or the Issuers shall have the right to postpone the
Closing Date for a period, not exceeding seven (7) business days, in order to effect
whatever changes may thereby be made necessary in the Offering Memorandum or in any other
documents and arrangements. The term "Initial Purchaser" as used in this Agreement shall
include any party substituted under this Section 8 with like effect as if it had originally
been a party to this Agreement with respect to such Securities.
9. Survival of Representations and Agreements. All representations and
------------------------------------------
warranties, covenants and agreements of you and the Issuers contained in this Agreement,
including the representations and agreements contained in the last paragraph of Section 2,
the agreements contained in Section 4, the indemnity agreements contained in Section 6 and
the contribution agreements contained in Section 7, shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of you or any controlling
person thereof or by or on behalf of the Issuers and Guarantors, any of their respective
officers and directors or any controlling person thereof, and shall survive delivery of any
payment for the Securities to and by you. The representations contained in Section 1 and
the agreements contained in Sections 4, 6, 7 and 10(c) hereof shall survive the termination
of this Agreement including pursuant to Section 10 hereof.
10. Termination.
-----------
(a) You shall have the right to terminate this Agreement at any time
prior to the Closing Date if (A) any domestic or international event or act or occurrence
has materially disrupted, or in your opinion will in the immediate future materially
disrupt, the market for Sun International's securities or securities in general; or (B)
trading generally on the New York or American Stock Exchanges shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the New York or American Stock Exchanges by the
New York or American Stock Exchanges or by order of the Commission or any other governmental
authority having jurisdiction; or (C) a general banking moratorium has been declared by New
York State, federal or Bahamian authorities or if any new restriction materially adversely
affecting the distribution of the Securities shall have become effective; or (D)(i) the
United States becomes engaged in hostilities or there is an escalation of hostilities
involving the United States or there is a declaration of a national emergency or war by the
United States or (ii) there shall have been a change in political, financial or economic
conditions if the effect of any such event in (i) or (ii) is such as in your judgment makes
it impracticable or inadvisable to proceed with the offering, sale and delivery of the
Securities on the terms contemplated by the Offering Memorandum; or (E) there shall have
been any material adverse change on the properties, results of operations, financial
condition or prospects of Sun International and its subsidiaries, taken as a whole, except
in each case as described in or contemplated by the Offering Memorandum (exclusive of any
amendment or supplement thereto).
(b) Any notice of termination pursuant to this Section 10 shall be by
telephone, telex, or telegraph, confirmed in writing by letter.
(c) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as provided in Section
10(a) hereof or (ii) Section 8(a) hereof), or if the sale of the Securities provided for
herein is not consummated because any condition to your obligations set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the Issuers or
Guarantors to perform any agreement herein or comply with any provision hereof, the Issuers
and Guarantors will, jointly and severally, subject to demand by you, reimburse you for all
out-of-pocket expenses (including the fees and expenses of your counsel), incurred by you in
connection herewith.
11. Notice. All communications hereunder, except as may be otherwise
------
specifically provided herein, shall be in writing and (a) if to any Issuer, to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Esq., Sun International Hotels Limited, Coral Towers, Paradise Island, The Bahamas,
with a copy to Cravath, Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇, Esq. and (b) if to any Initial Purchaser, to Deutsche Banc ▇▇▇▇.
▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance
Department, with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., or in any
case to such other address as the person to be notified may have requested in writing.
12. Parties. This Agreement shall inure solely to the benefit of, and shall
-------
be binding upon you and the Issuers and Guarantors and the controlling persons, directors,
officers, employees and agents referred to in Sections 6 and 7, and their respective
successors and assigns, and no other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by virtue of this Agreement or
any provision herein contained. The term "successors and assigns" shall not include a
purchaser, in its capacity as such, of Securities from you.
13. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK
STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT TO ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which together shall constitute one and the same
instrument.
If the foregoing correctly sets forth the understanding between you and the
Issuers and Guarantors, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
SUN INTERNATIONAL HOTELS LIMITED
By:___________________________
Name:
Title:
SUN INTERNATIONAL NORTH AMERICA, INC.
By:___________________________
Name:
Title:
SUN INTERNATIONAL BAHAMAS LIMITED
By:___________________________
Name:
Title:
PARADISE ISLAND LIMITED
By:___________________________
Name:
Title:
ISLAND HOTEL COMPANY LIMITED
By:___________________________
Name:
Title:
PARADISE BEACH INN LIMITED
By:___________________________
Name:
Title:
PARADISE ENTERPRISES LIMITED
By:___________________________
Name:
Title:
PARADISE ACQUISITIONS LIMITED
By:___________________________
Name:
Title:
SUN INTERNATIONAL MANAGEMENT LIMITED
By:___________________________
Name:
Title:
SUN COVE, LTD.
By:___________________________
Name:
Title:
GGRI, INC.
By:___________________________
Name:
Title:
Accepted, as of the date first above written.
DEUTSCHE BANC ALEX. BROWN INC.
By:___________________________
Name:
Title:
By: ___________________________
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: ___________________________
Name:
Title:
CIBC WORLD MARKETS CORP.
By: ___________________________
Name:
Title:
BANC OF AMERICA SECURITIES LLC
By: ___________________________
Name:
Title:
▇▇▇▇▇ FARGO BROKERAGE SERVICES, LLC
By: ___________________________
Name:
Title:
FLEET SECURITIES, INC.
By: ___________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC
By: ___________________________
Name:
Title:
SCHEDULE I
----------
Principal Amount of Securities
Initial Purchasers to be Purchased
------------------ ---------------------------------------
Deutsche Banc ▇▇▇▇. ▇▇▇▇▇ Inc. $ 60,000,000
Bear, ▇▇▇▇▇▇▇ & Co. Inc. 60,000,000
CIBC World Markets Corp. 30,000,000
Banc of America Securities LLC 15,000,000
▇▇▇▇▇ Fargo Brokerage Services, LLC 15,000,000
Fleet Securities, Inc. 10,000,000
The Royal Bank of Scotland plc 10,000,000
-------------
TOTAL $200,000,000