Offering Memorandum in connection with the offering and resale of the Securities.  All capitalized terms used and not defined herein shall have the meaning set forth in the Offering Memorandum.

 

The Company understands that you propose to make an offering of the Securities on the terms set forth in the Offering Memorandum as soon as you deem advisable after this Agreement has been executed as delivered, (i) to persons in the United States whom you reasonably believe to be qualified institutional buyers (Qualified Institutional Buyers) as defined in Rule 144A promulgated by the Securities and Exchange Commission (the Commission) under the Act, as such rule may be amended from time to time (Rule 144A), in a transaction under Rule 144A, and (ii) to non-U.S. persons (as defined in Regulation S under the Act), provided that such offers and sales are made in the manner contemplated by Section 3.

 

The Initial Purchasers and their direct and indirect transferees of the Securities will be entitled to the benefits of the Registration Rights Agreement, substantially in the form attached hereto as Exhibit A (the Registration Rights Agreement), pursuant to which the Company and the Guarantors have agreed, among other things, to file a registration statement (the Registration Statement) with the Commission registering the resale of Registrable Securities (as defined in the Registration Rights Agreement) under the Act.

 

1.             Representations And Warranties.  The Company represents and warrants to, and agrees with you that:

 

(a)           As of their respective dates, the Offering Memorandum and the Preliminary Offering Memorandum do not, and at the Closing Date (as defined herein) the Offering Memorandum will not, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment to them) made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Company by or on behalf of such Initial Purchaser through Deutsche Bank Securities Inc., and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 7 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the second sentence in the fifth paragraph, the third sentence in the eighth paragraph, the ninth and tenth paragraphs of the section entitled Plan of Distribution in the Offering Memorandum constitute the only information (the Initial Purchasers Information) furnished to the Company by or on behalf of any Initial Purchaser by Deutsche Bank Securities Inc., expressly for use in the Preliminary Offering Memorandum or the Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers.

 

(b)           Each of the Company and its subsidiaries has been duly incorporated and is validly existing as a corporation in good standing under the laws of its

 

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jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of the Company and its subsidiaries, taken as a whole (a Material Adverse Effect).

 

The capitalization of the Company as of June 30, 2005 is as set forth in the Offering Memorandum under the caption Capitalization in the column Actual.  All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the subsidiaries of the Company have been duly authorized and validly issued and fully paid and non-assessable, and are 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 Companys subsidiaries under the Fifth Amended and Restated Credit Agreement dated as of July 7, 2004, as amended, among the Company, Kerzner International North America, Inc. (KINA), Kerzner International Bahamas Limited, certain of the Companys subsidiaries, certain financial institutions, and JPMorgan Chase Bank, N.A., 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 Offering Memorandum.

 

(c)           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 Offering Memorandum; each of the agreements described in the Offering Memorandum to which the Company, any of its subsidiaries, Kerzner International Management Limited (KIML) or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and the Company believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.

 

(d)           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

 

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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.

 

(e)           The Company has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement, the Registration Rights Agreement and the Indenture and issue and sell the Securities being sold by this Agreement, and each of the Guarantors will have, as of the Closing Date, all the requisite corporate power to execute, deliver and perform its obligations under the Registration Rights Agreement and the Indenture and issue the Guarantees.  The execution, delivery and performance of this Agreement and the Indenture, the issuance and sale of the Securities, compliance by each of the Company and the Guarantors with all the provisions hereof and thereof, as applicable, and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the NASD)) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of 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.

 

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