Exhibit 1.1
Sun International Hotels Limited
Sun International North America, Inc.
Debt Securities
Underwriting Agreement
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule II hereto
New York, New York
_______ , 20___
Ladies and Gentlemen:
Sun International Hotels Limited, an international business company
organized under the laws of the Commonwealth of The Bahamas ("Sun International"
or the "Company"), and Sun International North America, Inc., a Delaware
corporation and a wholly owned subsidiary of the Company ("SINA" and,
collectively with the Company, the "Issuers"), propose, subject to the terms and
conditions stated herein, to issue and sell to the several underwriters named in
Schedule II hereto (the "Underwriters"), for whom you (the "Representatives")
are acting as representatives, the principal amount of its securities identified
in Schedule I hereto (the "Securities"), to be issued under an indenture (the
"Indenture") dated as of ___________, 20__, among the Issuers[, the Guarantors
signatory thereto (the "Guarantors")] and ____________, as trustee (the
"Trustee"). [The Securities are to be guaranteed (the "Guarantees") by the
Guarantors. Unless the context requires otherwise, all references herein to the
Securities shall be deemed to include the Guarantees.] The use of the neuter in
this Agreement shall include the feminine and masculine wherever appropriate.
Certain terms used herein are defined in Section 17 hereof.
The Issuers have filed with the Commission a registration statement on Form
F-3 (No. 333-_______) for the registration of the Securities under the Act, and
the offering thereof from time to time in accordance with Rule 415 of the rules
and regulations of the Commission under the Act (the "Act Regulations"), and the
Issuers have filed such pre-effective amendments thereto as may be required.
Such registration statement (as so amended, if applicable) has been declared
effective by the Commission and the Indenture has been duly qualified under the
Trust Indenture Act. Such registration statement (as so amended, if applicable)
is referred to herein as the "Registration Statement"; and the final prospectus
dated ____________ and the final prospectus
supplement relating to the offering of the Securities, in the form first
furnished to the Underwriters by the Issuers for use in connection with the
offering of the Securities, are collectively referred to herein as the
"Prospectus"; provided, however, that all references to the "Registration
Statement" and the "Prospectus" shall also be deemed to include all documents
incorporated therein by reference pursuant to the Exchange Act. A "preliminary
prospectus" shall be deemed to refer to any prospectus contained in the
registration statement before it became effective, any prospectus used before
the registration statement became effective and any prospectus that omitted
information to be included upon pricing in a form of prospectus filed with the
Commission pursuant to Rule 424(b) of the Act Regulations that was used after
such effectiveness and prior to the Execution Time. For purposes of this
Underwriting Agreement, all references to the Registration Statement, Prospectus
or preliminary prospectus or to any amendment or supplement to any of the
foregoing shall be deemed to include any copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
All references in this Underwriting Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" (or
other references of like import) in the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include all such financial
statements and schedules and other information which is incorporated by
reference in the Registration Statement, Prospectus or preliminary prospectus,
as the case may be, and all references in this Underwriting Agreement to
amendments or supplements to the Registration Statement, Prospectus or
preliminary prospectus shall be deemed to mean and include the filing of any
document under the Exchange Act which is incorporated by reference in the
Registration Statement, Prospectus or preliminary prospectus, as the case may
be. All capitalized terms used and not defined herein shall have the meaning set
forth in the Registration Statement, Prospectus or preliminary prospectus as the
case may be.
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, each Underwriter that:
(a) The Issuers have reasonable grounds to believe that the Registration
Statement was filed on the proper form under the Act. The Registration Statement
has become effective under the Act and no stop order suspending the
effectiveness of the Registration Statement has been issued under the Act and no
proceedings for that purpose have been instituted or are pending or, to the
knowledge of the Issuers, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been complied with. In
addition, the Indenture has been duly qualified under the Trust Indenture Act.
(b) At the time the Registration Statement became effective and at the
Closing Date, the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the requirements
of the Act and the Act Regulations and the Trust Indenture Act and the rules and
regulations of the Commission under the Trust Indenture Act (the "Trust
Indenture Act Regulations") and did not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the date of the Prospectus and at the
Closing Date, did not and will not include an untrue statement of a material
fact or omit 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. Notwithstanding the foregoing, the representations and warranties in
this subsection (a) shall not apply to (i) statements in or omissions from the
Registration Statement or the Prospectus and any amendments and supplements
thereto, made in reliance upon and in conformity with information furnished to
the Issuers in writing by or on behalf of the Underwriters specifically for use
in the Registration Statement or the Prospectus and any amendments and
supplements thereto (the "Underwriter Information") and (ii) that part of the
Registration Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee.
Each preliminary prospectus and prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act Regulations and each preliminary prospectus and
the Prospectus delivered to the Underwriters for use in connection with the
offering of Securities will, at the time of such delivery, be identical to any
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(c) The documents incorporated or deemed to be incorporated by reference in
the Registration Statement and the Prospectus (the "Incorporated Documents"), at
the time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the Exchange Act and
the rules and regulations of the Commission thereunder (the "Exchange Act
Regulations") and, when read together with the other information in the
Prospectus, at the date of the Prospectus and at the Closing Date, did not and
will not include 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.
(d) No contract or document which is required to be described in the
Registration Statement, the Prospectus or an Incorporated Document or to be
filed as an exhibit to the Registration Statement or an Incorporated Document is
not described or filed as required.
(e) 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 Prospectus) 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 the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect").
(f) Each of the Issuers [and the Guarantors] has all requisite corporate
power and authority to execute, deliver and perform its respective obligations
under the Indenture.
(g) The capitalization of the Company is as set forth in the Prospectus
under the caption "Capitalization." All of the issued and outstanding shares of
capital stock of, or other ownership interests in, each of the subsidiaries of
the Company are duly authorized and validly issued and fully paid and
non-assessable, and owned by the Company, 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 the
Company's subsidiaries under the Fourth Amended and Restated Revolving Credit
Agreement dated as of November 9, 2001, as amended, among Sun International
Bahamas Limited, the Company, SINA, certain of the Company's subsidiaries,
certain financial institutions and Canadian Imperial Bank of Commerce, as
administrative agent (as such agreement may be amended, supplemented, restated
or replaced, 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, the Company [or any Guarantor], except as disclosed in
the Prospectus.
(h) The Securities[, the Guarantees] and the Indenture conform in all
material respects to the descriptions thereof contained in the Prospectus.
(i) All the outstanding shares of capital stock of the Company 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 Prospectus; each
of the agreements described in the Prospectus to which the Company, 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
Prospectus, and the Company believes that each such agreement is effective and
enforceable against the other party, except as disclosed in the Prospectus.
(j) Neither the Company 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 the Company 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 the
Company 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.
(k) 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 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 will not conflict with or constitute a
breach or violation of (i) any of the charters or by-laws of the Company 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 to which the Company 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 the
Company 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 the Company, 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.
(l) 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 Registration Statement or the Prospectus or suspends the sale of the
Securities in any jurisdiction referred to in Section 4(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 the
Company or any of its subsidiaries which would prevent or suspend the issuance
or sale of the Securities or the use of the Registration Statement or the
Prospectus in any jurisdiction referred to in Section 4(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 the Company, threatened against, the Company 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 or the Indenture.
(m) 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 the Company, affecting the Company 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
the Company, except as disclosed in the Registration Statement or the Prospectus
no such action, suit or proceeding is threatened or contemplated.
(n) Except as disclosed in the Registration Statement or the Prospectus (i)
neither the Company 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 the Company 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 the Company'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 the Company 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 the Company, there are no past or present actions,
activities, circumstances, conditions, events or incidents that could form the
basis of any Environmental Claim against the Company or any of its subsidiaries,
now or in the past, or against any person or entity whose liability for any
Environmental Claim the Company 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.
(o) Except as disclosed in the Prospectus (i) each of the Company, its
subsidiaries, [its directors and executive officers named in Item 10 in its
Annual Report on Form 20-F for its most recent fiscal year] [the persons listed
as executive officers under the caption "Management" in the Prospectus] (the
"executive officers") , 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
Prospectus (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 the Company, its subsidiaries, each of its executive
officers, 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 the Company, its subsidiaries, its executive officers,
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 Prospectus, none of the Company, any
of its subsidiaries, any of its executive officers, 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 the Company, any of its subsidiaries, any of its executive
officers, 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 the Company,
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 the Company, its subsidiaries, any of its executive
officers, SIML and TCA), which investigation could reasonably be expected to
have a
Material Adverse Effect.
(p) Except as disclosed in the Prospectus or as could not reasonably be
expected to have a Material Adverse Effect, the Company 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 Agreement, to all property and assets described in the Prospectus 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 the Company 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.
(q) The Company[,][and] 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.
(r) The accountants, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or other accountants of national
standing selected by the Company), that have certified the applicable financial
statements of the Company and SINA, filed with the Commission, are independent
public accountants with respect to such corporations as applicable, as required
by the Act.
(s) The financial statements, together with the related schedules and notes
included in the Prospectus, 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 the Company, 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 Prospectus are accurately presented and
prepared on a basis consistent with such financial statements and the books and
records of the Company and SINA, as applicable. [The pro forma financial
statements and other pro forma financial information included in the Prospectus
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 the Company, 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 ------------.]
(t) Except as described in the Prospectus, subsequent to the respective
dates as of which information is given in the Prospectus and up to the Closing
Date (i) neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, which are material to the
Company 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 the Company and its subsidiaries, taken as a
whole (any of the items set forth in clauses (i), (ii) or (iii) of this
paragraph (r), a "Material Adverse Change").
(u) Neither the Company 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.
(v) 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; neither the Company 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 Registration Statement,
the Prospectus and the Indenture 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.
(w) The Company 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.
(x) All material Tax (as defined below) returns required to be filed by the
Company 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 the Company 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 the Company and its consolidated
subsidiaries in accordance with GAAP. The Company 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
the Company 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.
(y) 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 G, T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect on the Closing Date.
[(z) All of the Company'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.]
(aa) 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 (i) bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity.
(bb) 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 (i) bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity.
(cc) This 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.
(dd) Each certificate signed by any officer of the Company or any of
its subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection herewith shall be deemed to be a representation and
warranty by the Company or such subsidiary to the Underwriters 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 Underwriters and (ii) each
Underwriter hereby agrees, severally and not jointly, to purchase from the
Issuers, at the purchase price set forth in Schedule I hereto, the principal
amount of the Securities set forth opposite the name of such Underwriter's name
in Schedule II hereto.
Delivery of and payment for the Securities shall be made on the date and
the time specified in Schedule I hereto or at such time or such later date not
more than three Business Days after the foregoing date as the Underwriters shall
designate, which date and time may be postponed by agreement between the
Representatives and the Issuers or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the purchase price thereof
to or upon the order of the Company 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 the Representatives may request in writing at least
two full business days prior to the Closing Date. The Issuers will permit the
Representatives to examine and package such Securities for delivery at least one
full business day prior to the Closing Date.
Each of the Underwriters hereby, severally and not jointly, represents and
warrants to, and agrees with, the Issuers that it will, during its initial
distribution of the Securities, furnish to each person to whom it sells any
Securities a copy of the Prospectus.
3. OFFERING BY UNDERWRITERS. It is understood that the several Underwriters
propose to offer the Securities for sale to the public as set forth in the
Prospectus.
4. COVENANTS OF THE ISSUERS. Each Issuer [and Guarantor] covenants and
agrees with the Underwriters as follows:
(a) Each Issuer [and Guarantor] will cooperate with the Underwriters in
endeavoring to qualify the Securities for sale under the securities laws of such
jurisdictions as the Representatives 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 Representatives may reasonably request for
distribution of the Securities.
(b) At any time during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Issuers will give the
Representatives notice of their intention to prepare any supplement to the
Prospectus or amendment to the Registration Statement, will furnish the
Representatives 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 Representatives or counsel for
the Underwriters shall
reasonably object within five days of being furnished a copy thereof. Subject to
the foregoing sentence, if filing of the Prospectus is required under Rule
424(b), the Issuers will cause the Prospectus including any supplement thereto
to be filed with the Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide evidence satisfactory
to the Representatives of such timely filing. The Issuers will promptly advise
the Representatives when the Prospectus, and any supplement thereto, shall have
been filed (if required) with the Commission pursuant to Rule 424(b), when,
prior to termination of the offering of the Securities, any amendment to the
Registration Statement shall have been filed or become effective, of any request
by the Commission for any amendment to the Registration Statement or amendment
or supplement to the Prospectus or for any additional information, of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for
that purpose and of the receipt by the Issuers of any notification with respect
to the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. Each of the Issuers will make every reasonable effort to prevent the
issuance of any such stop order and, if issued, to obtain, as soon as possible,
the withdrawal thereof.
(c) The Issuers have furnished or will furnish to the Representatives such
number of copies of the Prospectus as the Representatives may reasonably
request, and the Issuers hereby consent to the use of such copies for purposes
permitted by the Act. The Issuers will furnish to the Representatives, without
charge, during the period when the Prospectus is required to be delivered under
the Act or the Exchange Act, such number of copies of the Prospectus (as amended
or supplemented) as the Representatives may reasonably request. The Prospectus
and any amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed via ▇▇▇▇▇,
except to the extent permitted by Regulation S-T.
(d) The Issuers will comply with the Act, the Exchange Act, the Act
Regulations, and the regulations promulgated under the Exchange Act so as to
permit the completion of the distribution of the Securities as contemplated in
this Agreement and in the Prospectus. If at any time when the Prospectus is
required by the Act or the Exchange Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters
or for the Issuers, to amend the Registration Statement in order that the
Registration Statement will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or to amend or supplement the
Prospectus in order that the Prospectus will not include an untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein not misleading in the light of the circumstances existing at
the time it is delivered to a purchaser, or if it shall be necessary, in the
reasonable opinion of such counsel, at any such time to amend the Registration
Statement or amend or supplement the Prospectus in order to comply with the
requirements of the Act or the Act Regulations, the Issuers will promptly
prepare and file with the Commission, subject to Section 4(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Issuers will furnish to the Representatives, without charge, such number of
copies of such amendment or supplement as the Representatives may reasonably
request.
(e) At any time during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, the Company 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) The Issuers will, if requested by the Underwriters, use their best
efforts in cooperation with the Underwriters to permit the Securities to be
eligible for clearance and settlement through The Depository Trust Company.
(g) The Company will, for the shorter of the period the Securities remain
outstanding and five years from the Closing Date, deliver to the Representatives
copies of annual reports and copies of all other documents, reports and
information furnished by the Company 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.
(h) The Issuers shall apply the net proceeds of their sale of the
Securities as set forth in the Prospectus.
(i) 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
the Company or any of its subsidiaries to register as an investment company
under the 1940 Act or the rules and regulations thereunder.
(j) Except as described in or contemplated by the Prospectus, the Issuers
will not, without the prior written consent of the Representatives (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) (it
being understood that debt incurred under the Existing Credit Agreement is not a
debt security) until the Business Day set forth on Schedule I hereto.
(k) The Issuers [and the Guarantors] will not claim the benefit of any
usury laws against any holders of Securities [or Guarantees, respectively].
(l) The Issuers will timely file such reports pursuant to the Exchange Act
as are necessary in order to make generally available to its securityholders as
soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the Act.
(m) 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.
5. PAYMENT OF EXPENSES. The Issuers agree, jointly and severally, that
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, they will pay the Underwriters severally through the
Representatives on demand 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 Registration
Statement (including financial statements and exhibits), as originally filed and
all amendments and supplements thereto, (ii) the preparation, printing
(including word processing), execution, distribution and delivery of this
Agreement, the Indenture, 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 Underwriters, 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 Underwriters relating to
such qualification and any memoranda relating thereto and any filing fees in
connection therewith), (iv) furnishing such copies of the Registration
Statement, the Prospectus 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 Underwriters 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 and (vii) 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 the
Underwriters. The Issuers hereby agree and acknowledge that the Underwriters
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.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters to purchase the Securities under this Agreement are subject to the
satisfaction of each of the following conditions:
(a) The Registration Statement has become effective under the Act and no
stop order suspending the effectiveness of the Registration Statement shall have
been issued under the Act and no proceedings for that purpose shall have been
initiated or be pending or threatened by the Commission, and any request on the
part of the Commission for additional information shall have been complied with
to the reasonable satisfaction of counsel to the Underwriters. A prospectus
containing information relating to the description of the Securities, the
specific method of distribution and similar matters shall have been filed with
the Commission in accordance with Rule 424(b)(1), (2), (3), (4) or (5), as
applicable.
(b) 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.
(c) (i) Since the date of the latest balance sheet of the Company included
in the Registration Statement or the Prospectus 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 the Company included in the Registration
Statement or the Prospectus 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 the Company or its subsidiaries, (iii) the Company
and its subsidiaries shall have no liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries, taken as a
whole, other than those as may be reflected in the Registration Statement or the
Prospectus and (iv) on the Closing Date the Representatives shall have received
a certificate of the Company, dated the Closing Date, signed by each of the
Chief Financial Officer and Executive Vice President-Corporate Development of
the Company, in their capacities as officers of the Company, confirming the
matters set forth in paragraphs (b) and (c) of this Section 6.
(d) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., General
Counsel of the Company, to the effect that:
(i) (A) all Authorizations of the Company and its subsidiaries are
valid and in full force and effect; and (B) to the best of such counsel's
knowledge, each of the Company, 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 Registration Statement or the Prospectus
of contracts to which any of the Company, 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); to the best of such counsel's knowledge, there are no contracts
required to be described or referred to in the Registration Statement or
required to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits
thereto;
(iii) the Company 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 (A) the Company[,][nor] SINA [nor any of the Guarantors]
is in violation of its respective charter or by-laws and (B) the Company
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 the Company 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 may be disclosed in the Prospectus, to such counsel's knowledge,
threatened to which the Company[,][or] 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;
(vi) the Incorporated Documents (in each case except for the financial
statements and other information of a statistical, accounting or financial
nature, as to which such counsel does not express any view), at the time
they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of
the Exchange Act and the Exchange Act Regulations; and
(vii) the execution, delivery and performance of this Agreement and
the Indenture 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 the Company 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 the Company or any of its
subsidiaries is a party or by which the Company 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 the
Company, 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 Registration
Statement as of the time such Registration Statement became effective contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus, 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 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 Prospectus.
(e) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Associate General
Counsel of the Company, to the effect that:
(i) the Company [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 Prospectus)
and to own, lease and operate its properties;
(ii) the Company [and the Bahamian Guarantors] [has][have] all the
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement and the Indenture 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 the Company [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 the Company'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 the Company, free and
clear of any Lien except for the pledges by the Company under the Existing
Credit Agreement;
(v) all the outstanding shares of capital stock of the Company 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 and the Indenture has been duly and
validly authorized, executed and delivered by the Company [and each of the
Bahamian Guarantors];
(vii) the statements in the Prospectus under the caption "Tax
Consequences--Certain Bahamian Tax Considerations," (or, if any such
caption is not used in the Prospectus, any statements under a caption
substantially similar thereto reasonably identified by counsel to the
Representatives) insofar as such statements constitute summaries of
Bahamian statutes, regulations, legal and governmental proceedings and
contracts to which the Company 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 and
the Indenture by the Company [and each of the Bahamian Guarantors], the
issuance and sale of the Securities [and the Guarantees], compliance by the
Company [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 (A) any Bahamian laws or administrative regulations,
(B) rulings or orders of any Bahamian court or governmental agency, body or
official having jurisdiction over the Company, any of its Bahamian
subsidiaries or
their respective properties or (C) the respective Memorandum or Articles of
Association of the Company 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 the Company 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) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of Cravath, Swaine & ▇▇▇▇▇, United States
counsel for the Company, to the effect that:
(i) based solely on certificates from the Secretary of State of
Delaware, each of SINA [and [ ]] ([collectively, ]the "Delaware
Obligor[s]") 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 Prospectus;
[(ii) based solely on certificates from the Secretary of State of
Delaware, Sun International New York, Inc. (the "New York Obligor") has
been duly incorporated and is a corporation validly existing and in good
standing under the laws of the State of New York, with full corporate power
and authority to own, lease and operate its properties and conduct its
business as described in the Prospectus;]
(iii) 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 Underwriting
Agreement, except such as have been obtained under the Act or the Trust
Indenture Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters;
(iv) the Securities [(including the Guarantees)] and Indenture conform
in all material respects as to legal matters to the descriptions thereof
contained in the Prospectus;
(v) the Indenture has been duly authorized, executed and delivered by
the Delaware Obligor[s] [and the New York Obligor];
(vi) assuming the due authorization, execution and delivery of the
Indenture [and the Guarantees] by the parties thereto other than the
Delaware Obligors (the "Non-Delaware Obligors"), the Indenture 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);
(vii) the Securities have been duly authorized by the Delaware
Obligor[s] [and the New York Obligor and the Guarantee to be endorsed on
the Securities by the Delaware Obligors (other than SINA) and the New York
Obligor have been duly authorized by such Delaware Obligors and the New
York Obligor];
(viii) assuming the due authorization of the issuance and sale of the
Securities by the Company, the Securities, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to the Underwriting Agreement, the
Securities will constitute legal, valid and binding obligations of each
Issuer entitled to the benefits of the Indenture and enforceable against
each Issuer 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);
[(ix) assuming the due authorization of the Guarantee to be endorsed
on the Securities by each Non-Delaware Obligor, when the Securities have
been executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, the Guarantee of each Guarantor endorsed thereon
will constitute a legal, valid and binding obligation of such Guarantor
enforceable against such 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 in a proceeding in equity or at law);]
(x) the Underwriting Agreement has been duly authorized, executed and
delivered by the Delaware Obligors;
(xi) the statements made in the Prospectus under the heading "Tax
Consequences--Certain United States Tax Consequences to Non-U.S. Holders,"
(or, if such heading is not used in the Prospectus, any statements under a
heading substantially similar thereto reasonably identified by counsel to
the Representatives) insofar as they purport to describe the material U.S.
Federal tax consequences of an investment in the Securities by a Non-U.S.
Holder (as defined in the Prospectus), fairly summarize the matters therein
described.
(xii) neither the Company 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; and
(xiii) the Registration Statement became effective under the Act on
________, 20__ and thereupon the offering of the Securities as contemplated
by the Prospectus became registered under the Act and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
pending or contemplated under the Act. The required filing of the
Prospectus under Rule 424(b) has been made in the manner and within the
time frame required by Rule 424(b).
In addition, such counsel shall state that it has participated in
conferences with certain officers of, and with the accountants for, the Company
concerning the preparation of the Registration Statement and the Prospectus.
Such counsel shall also advise you that, although it has made certain inquiries
and investigations in connection with the preparation of the Registration
Statement and the Prospectus, 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 Registration Statement
and Prospectus, except insofar as such statements relate to such counsel. Such
counsel shall also state 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: (i) the Registration Statement, at the time the
Registration Statement became effective, or the Prospectus, as of its date and
the Closing Date (in each case except for the financial statements and other
information of a statistical, accounting or financial nature included therein,
and the Statement of Eligibility (Form T-1) included as an exhibit to the
Registration Statement, as to which such counsel does not express any view), was
not appropriately responsive in all material respects to the requirements of the
Act and the applicable rules and regulations of the Commission thereunder; or
(ii) the Registration Statement, at the time the Registration Statement became
effective, contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, 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 Prospectus. 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 the Company and as to matters relating to the laws of
other jurisdictions, on the opinions of local counsel for the Company in such
jurisdictions, as to which laws such counsel need express no opinion.
(g) The Representatives shall have received on the Closing Date an opinion
(satisfactory to the Representatives and counsel for the Underwriters), 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 and 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 Prospectus;
[(ii) the Indenture and the Underwriting 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 and
the Indenture 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 (A) any Connecticut
laws or administrative regulations applicable to Sun Cove, (B) rulings or
orders of any Connecticut court or governmental agency, body or official
having jurisdiction over Sun Cove or its properties or (C) 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 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;
(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;
and
(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 Prospectus; 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).
(h) The Representatives shall have received on the Closing Date an opinion
(reasonably satisfactory to the Representatives and counsel for the
Underwriters), dated the Closing Date, of ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇, British
Virgin Islands counsel to the Company, to the effect that:
(i) SIML is a corporation duly organized, validly existing and in good
standing under the laws of the British Virgin Islands;
[(ii) the Indenture and the Underwriting Agreement have been duly
authorized, executed and delivered by SIML;]
[(iii) the Guarantee has been duly authorized, executed and delivered
by SIML;]
[(iv) the execution, delivery and performance of this Agreement and
the Indenture 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 (A) any British Virgin Islands laws or
administrative regulations, (B) rulings or orders of any British Virgin
Islands court or governmental agency, body or official having jurisdiction
over SIML or its properties or (C) the charter and by-laws of SIML]; and
(v) to the best knowledge of such counsel, after due inquiry, SIML 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Cravath, Swaine &
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Rome ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ P.C. and ▇▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇
described in paragraphs (d), (e), (f), (g) and (h) above shall be rendered to
the Representatives at the request of the Company and shall so state therein.
(i) The Representatives shall have received from Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special counsel for the Underwriters, an opinion dated the
Closing Date as to such matters as the Representatives may reasonably require.
(j) The Representatives 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 Representatives, with respect to the
qualification for offering and sale by the Underwriters of the Securities under
the state securities or Blue Sky laws of such jurisdictions as the Underwriters
may reasonably have designated to the Company.
(k) The Representatives shall have received at the Execution Time and on
the Closing Date a letter, dated as of the Execution Time and the Closing Date,
respectively, in form and substance satisfactory to the Representatives, of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or other accountants of national standing selected by the
Company) 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 an Underwriter with
respect to the financial statements and certain financial and statistical
information contained in the Prospectus.
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 Underwriters and to Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, special counsel for the Underwriters.
If any of the conditions specified in this Section 6 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 the Representatives or to
counsel for the Underwriters pursuant to this Section 6 shall not be in all
material respects reasonably satisfactory in form and substance to the
Representatives and special counsel for the Underwriters, all of the
Underwriters' obligations hereunder may be cancelled by the Representatives at,
or at any time prior to, the Closing Date. Notice of such cancellation shall be
given to the Company in writing, or by telephone, telex or telegraph, confirmed
in writing.
7. INDEMNIFICATION.
(a) The Issuers [and the Guarantors], jointly and severally, agree to
indemnify and hold harmless (i) each Underwriter, (ii) each person, if any, who
controls any Underwriter 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 Underwriter 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 they 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 Registration Statement, or in any amendment thereof, or arise out of or
are based upon the omission or alleged omission therefrom of a material fact
necessary to make the statements therein not misleading or arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus, or in any supplement
thereto, or arise out of or are based upon the omission or alleged omission
therefrom of 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 Underwriter Information; provided, further, that the Issuers [and the
Guarantors] shall not be liable to any Underwriter or any person set forth in
clauses (ii) and (iii) above with respect to any untrue statement or alleged
untrue statement or omission or alleged omission in any preliminary prospectus
to the extent that any such liabilities of an Underwriter result from the fact
that such Underwriter 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 Prospectus or of the Prospectus as then
amended or supplemented if the Issuers have previously furnished copies thereof
to such Underwriter (directly or through the Representatives) and the
liabilities of such Underwriter result from an untrue statement or omission of a
material fact contained in the preliminary prospectus which was corrected in the
Prospectus or in the Prospectus 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 Underwriter, 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 Registration Statement, or in any 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 not
misleading or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus, or in any supplement thereto, or arise out of or are based upon
the omission therefrom of a material fact necessary to make the statements
therein, in 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 Underwriter
Information. This indemnity agreement will be in addition to any liability which
the Underwriters may
otherwise have, including under this Agreement. The Company acknowledges that
the statements described in Schedule I to this Agreement constitute the only
Underwriter Information.
(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 7 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.
8. CONTRIBUTION. In order to provide for contribution in circumstances in
which the indemnification provided for in Section 7 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 the Underwriters,
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 Underwriters, 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 Underwriters, 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 one hand and the
Underwriters, on the other hand, shall be deemed to be, (x) in the case of the
Issuers [and the Guarantors], the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Issuers [and the Guarantors] and (y) in the case of the Underwriters, the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Issuers [and the Guarantors], on the one
hand, and the Underwriters, 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 Underwriters, 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 Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
8 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 8, (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Securities purchased by such Underwriter
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 8, each person, if any, who controls any Underwriter 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 Underwriter, 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 8. 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 8 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.
9. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter shall default in its obligation to purchase the
Securities hereunder,
any other Underwriter 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 the Representatives do not arrange for the purchase of the
Securities to which such default relates as provided in this Section 9, this
Agreement shall thereupon terminate, without liability on the part of the
Issuers with respect thereto (except in each case as provided in Section 5, 7(a)
and 8 hereof) or the non-defaulting Underwriter, but nothing in this Agreement
shall relieve a defaulting Underwriter of its liability, if any, to the other
Underwriters 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 Underwriter, or are to be purchased by another
party or parties as aforesaid, the Representatives 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 Prospectus or in any other documents and arrangements. The term
"Underwriter" as used in this Agreement shall include any party substituted
under this Section 9 with like effect as if it had originally been a party to
this Agreement with respect to such Securities.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters and the Issuers
contained in this Agreement, including the agreements contained in Section 5,
the indemnity agreements contained in Section 7 and the contribution agreements
contained in Section 8, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Underwriters 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
the Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8 and 11(c) hereof shall survive the termination of
this Agreement including pursuant to Section 11 hereof.
11. TERMINATION.
(a) The Representatives shall have the right to terminate this Agreement at
any time prior to the Closing Date if (i) any domestic or international event or
act or occurrence has materially disrupted, or in the opinion of the
Representatives will in the immediate future materially disrupt, the market for
the Company's securities or securities in general; or (ii) 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 (iii) 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 (iv)(A) 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 (B) 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 Prospectus; or (v) there shall have been any material adverse change on the
properties, results of operations, financial condition or prospects of the
Company and its subsidiaries, taken as a whole, except in each case as described
in or contemplated by the Prospectus.
(b) Any notice of termination pursuant to this Section 11 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 the Representatives as
provided in Section 11(a) hereof or (ii) Section 9(a) hereof), or if the sale of
the Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters 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 the
Underwriters, reimburse the Underwriters through the Representatives for all
out-of-pocket expenses (including the fees and expenses of counsel for the
Underwriters), incurred by the Underwriters in connection herewith.
12. NOTICE. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and effective only on receipt,
and, if sent to any Issuer, will be mailed or delivered to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq., Sun International Hotels Limited, Coral Towers, Paradise Island, The
Bahamas, with a copy to Cravath, Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq or if sent to any
Underwriter, will be mailed, faxed or delivered as set forth in Schedule I 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.
13. PARTIES. This Agreement shall inure solely to the benefit of, and shall
be binding upon the Underwriters and the Issuers [and Guarantors] and the
controlling persons, directors, officers, employees and agents referred to in
Sections 7 and 8, 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 an Underwriter.
14. 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.
15. COUNTERPARTS. 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.
16. HEADINGS. The section headings used herein are for convenience and
shall not affect the construction hereof.
17. DEFINITIONS. The terms which follow, when used in this Agreement, shall
have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended and the rules and
regulations of the Commission promulgated thereunder.
"Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in New York, New York or
the New York Stock Exchange are authorized or obligated by law or executive
order to close.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended and the rules and regulations of the Commission promulgated thereunder.
If the foregoing correctly sets forth the understanding between the
Underwriters 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:
[GUARANTORS]
By: __________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[REPRESENTATIVES]
By: ________________________
Name:
Title:
For each of themselves and the other
several Underwriters named in
Schedule II to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Indenture dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Purchase price (include accrued interest or amortization, if any):
Interest:
Maturity:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location: , 20___ at 10:00 a.m. at
the offices of Cravath, Swaine & ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Type of Offering: [Non-delayed] [Delayed]
Date referred to in Section 4(j) after which the Issuers may offer or sell debt
securities of the Issuers or their subsidiaries without the consent of the
Representative(s):
Underwriter Information furnished to the Issuers through the Representative(s)
for purposes of Section 7(b):
Contact information for notices to Underwriters pursuant to Section 12:
SCHEDULE II
PRINCIPAL AMOUNT OF
DESIGNATED
UNDERWRITER SECURITIES TO BE PURCHASED
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Total: $
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