Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and Guarantors, jointly and severally, represents and warrants to, and agrees with, you that: (a) As of their respective dates, the Offering Memorandum and the Preliminary Offering Memorandum do not, and at the Closing Date (as defined herein) the Offering Memorandum will not, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment to them) made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ expressly for use in the Preliminary Offering Memorandum or the Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers. (b) Each Issuer and Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect"). (c) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum. (d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum. (e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum. (f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect. (g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect. (h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement. (i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated. (j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect. (k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect. (l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect. (m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Sources: Purchase Agreement (Sun International North America Inc)
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Citigroup Global Markets Inc., J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Citigroup Global Markets Inc., J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Citigroup Global Markets Inc., J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearCitigroup Global Markets Inc., J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment 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.supplement thereto;
(bd) None of the Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated good and is validly existing valid title to all personal property owned by it or reflected as a corporation owned by it in good standing under the laws financial statements included in each of its jurisdiction the Registration Statement, the Time of incorporation Sale Information and has the corporate power Prospectus, in each case free and authority to carry on its business clear of all liens, encumbrances and defects except such as it is currently being conducted or is either (i) are described in each of the Registration Statement, the Time of Sale Information and the Prospectus, (ii) do not materially affect the value of such property and do not interfere with the use made and proposed to be conducted made of such property by the Issuers, the Guarantors and their respective subsidiaries, or (as discussed in the Offering Memorandumiii) and could not reasonably be expected 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 propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).; and any real property and buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Issuers, the Guarantors and their respective subsidiaries;
(cf) The capitalization Each of Sun International the Issuers, the Guarantors and their respective subsidiaries has been duly formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable; has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification; and is not subject to liability or disability by reason of the failure to be so qualified in any such jurisdiction, except such as would not, individually or in the aggregate, have a Material Adverse Effect;
(g) All the outstanding ownership interests of the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture as supplemented by the Twenty-Sixth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Twenty-Sixth Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Twenty-Sixth Supplemental Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) 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 assets of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuIssu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Citigroup Global Markets Inc., Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearCitigroup Global Markets Inc., ▇▇▇▇▇▇▇ & Co. Credit Suisse Securities (USA) LLC and Deutsche Bank Securities Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledgeequities or claims other than the liens securing the Credit Agreement;
(h) This Agreement has been duly authorized, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") executed and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges delivered by each of the shares Issuers and the Guarantors;
(i) Each of Sun International's subsidiaries the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its obligations hereunder;
(j) Each of the Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of the Securities and the Guarantees, as applicable, and the execution, delivery and performance of this Agreement and the Indenture;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of the Indenture and when delivered to, and paid for, by the Underwriters in accordance with the terms of this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture, as supplemented by the Fifteenth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees Trust Indenture Act; and the Indenture conform conforms or will conform, as applicable, in all material respects to the descriptions thereof contained in the Offering Memorandum.Time of Sale Information and the Prospectus;
(em) All The documents or sections of documents incorporated by reference into each of the outstanding shares Registration Statement, the Time of capital stock Sale Information and the Prospectus complied, as of Sun International the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and validly issued when the Notes have been duly executed, authenticated and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained delivered as provided in the Offering Memorandum; each Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the agreements described Guarantors in the Offering Memorandum to which Sun Internationalaccordance with their terms, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other partylaws of general applicability relating to or affecting creditors’ rights, except as disclosed in the Offering Memorandum.and to general equity principles;
(fo) Neither Sun International nor any None of its subsidiaries is the transactions contemplated by this Agreement (iincluding, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of its respective charter or by-laws, or (ii) in default in Section 7 of the performance of any obligation, bond, agreement, debenture, noteExchange Act, or any other evidence regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of indebtedness or any indenturethe Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, mortgagenone of the Issuers, deed of trust or other contract, lease or other instrument to which Sun International the Guarantors or any of its subsidiaries their respective affiliates has taken any action which is a party designed to or by which it has constituted or any of them is bound, which would have reasonably been expected to cause or to which any result in stabilization or manipulation of the property price of Sun International or any security of its subsidiaries is subject except, any such persons in connection with the case offering of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.the Securities;
(gq) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, The issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) 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 assets of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this AgreementIssuers, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries Guarantors or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is subject, nor will such action result in any violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International statute or any order, rule or regulation of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of ---------------------------------------------------------------- the Issuers and Guarantors, jointly and severally, represents and warrants to, and agrees with, you that:
(a) As of their respective dates, the Offering Memorandum and the Preliminary Offering Memorandum do not, and at the Closing Date (as defined herein) the Offering Memorandum will not, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the -------- ------- representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment to them) made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. in writing for use in the Preliminary Offering Memorandum or the Offering Memorandum ("Bear, ▇▇▇▇▇▇▇"or any supplement or amendment to them). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein)first, second and third paragraphs and the fifth and sixth penultimate sentence of the fourth sixth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ expressly for use in the Preliminary Offering Memorandum or the Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers.
(b) Each Issuer and Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) Each of the Issuers and the Guarantors has all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Registration Rights Agreement and the Indenture.
(d) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "HistoricalActual." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Third Amended and Restated Revolving Credit Agreement dated as of November 1, 19961999, as amended, among Sun BahamasInternational Bahamas Limited, Sun International, certain of the CompanySun International's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum. All of the subsidiaries of the Issuers are listed in Schedule 2(c) attached hereto.
(de) The Securities, the Guarantees Guarantees, the Indenture and the Indenture Registration Rights Agreement conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(ef) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management relinquishment agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts International Management Limited ("SRLSIML"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(fg) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, (ii) in breach or violation of any statute, judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, or (iiiii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause clauses (ii) and (iii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(gh) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") Agreement and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument (other than the necessary consent under the Existing Credit Agreement) to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(hi) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(ij) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(jk) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(kl) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL TCA and SPIC 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, Federalfederal, 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, France, Mauritius and the Comoros Maldives required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL TCA and SPIC SIML is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC SIML nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SIML nor TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC 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, France, Mauritius or the Comoros Maldives (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC SIML or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC SIML and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(lm) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valupar
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you the Underwriter that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any 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 the Underwriter furnished in writing to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Underwriter expressly for use in the Preliminary Offering Memorandum Prospectus, the Time of Sale Information or the Offering Memorandum Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriter in its capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Underwriter. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Initial Purchasers shall not be deemed to have provided any information (Issuers and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement the Guarantors make no representation and warranty with respect to any party other than statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to the Initial PurchasersUnderwriter furnished to the Issuers or the Guarantors in writing by the Underwriter expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to the Underwriter furnished to the Issuers by the Underwriter expressly for use in the Time of Sale Information.
(bc) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to the Underwriter furnished to the Issuers in writing by the Underwriter expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any real property and buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Issuers, the Guarantors and their respective subsidiaries;
(f) Each of the Issuers, the Guarantors and their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Officers’ Certificate;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriter in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture as supplemented by the Tenth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent) constitutes a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property or assets of Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is subject or (iii) subject, nor will such action result in any laws, administrative regulations or rulings or orders violation of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International statute or any order, rule or regulation of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or bodybody having jurisdiction over the Issuers, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International Guarantors or any of its their respective subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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 operationsthe Communications Act of 1934, as applicableamended, in The Bahamasthe Cable Communications Policy Act of 1984, Connecticutas amended, New Jerseythe Cable Television Consumer Protection and Competition Act of 1992, Franceas amended, Mauritius and the Comoros required to ownTelecommunications Act of 1996 (collectively, leasethe “Cable Acts”) or any order, license and use its properties and assets and to conduct its current business in rule or regulation of the manner described in Federal Communications Commission (the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"“FCC”), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuwhere su
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through Bear, Citigroup Global Markets Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledgeequities or claims other than the liens securing the Credit Agreement;
(h) This Agreement has been duly authorized, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") executed and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges delivered by each of the shares Issuers and the Guarantors;
(i) Each of Sun International's subsidiaries the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its obligations hereunder;
(j) Each of the Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of the Securities and the Guarantees, as applicable, and the execution, delivery and performance of this Agreement and the Indenture;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of the Indenture and when delivered to, and paid for, by the Underwriters in accordance with the terms of this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture as supplemented by the Tenth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees Trust Indenture Act; and the Indenture will conform in all material respects to the descriptions thereof contained in the Offering Memorandum.Time of Sale Information and the Prospectus;
(em) All The documents or sections of documents incorporated by reference into each of the outstanding shares Registration Statement, the Time of capital stock Sale Information and the Prospectus complied, as of Sun International the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and validly issued when the Notes have been duly executed, authenticated and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained delivered as provided in the Offering Memorandum; each Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the agreements described Guarantors in the Offering Memorandum to which Sun Internationalaccordance with their terms, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other partylaws of general applicability relating to or affecting creditors’ rights, except as disclosed in the Offering Memorandum.to general equity principles;
(fo) Neither Sun International nor any None of its subsidiaries is the transactions contemplated by this Agreement (iincluding, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of its respective charter or by-laws, or (ii) in default in Section 7 of the performance of any obligation, bond, agreement, debenture, noteExchange Act, or any other evidence regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of indebtedness or any indenturethe Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, mortgagenone of the Issuers, deed of trust or other contract, lease or other instrument to which Sun International the Guarantors or any of its subsidiaries their respective affiliates has taken any action which is a party designed to or by which it has constituted or any of them is bound, which would have reasonably been expected to cause or to which any result in stabilization or manipulation of the property price of Sun International or any security of its subsidiaries is subject except, any such persons in connection with the case offering of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.the Securities;
(gq) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, The issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property or assets of Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is subject or (iii) subject, nor will such action result in any laws, administrative regulations or rulings or orders violation of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International statute or any order, rule or regulation of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or bodybody having jurisdiction over the Issuers, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International Guarantors or any of its their respective subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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 gamingthe Communications Act of 1934, hotel and resort operations, as applicable, in The Bahamas, Connecticut, New Jersey, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valua
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Deutsche Bank Securities Inc., M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC and Mizuho Securities USA LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Deutsche Bank Securities Inc., M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC and Mizuho Securities USA LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Deutsche Bank Securities Inc., M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC and Mizuho Securities USA LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearDeutsche Bank Securities Inc., M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers LLC and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Mizuho Securities USA LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture and the Fifteenth Supplemental Indenture have each been duly authorized, executed and delivered by the Issuers and the Guarantors, and (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent) the Base Indenture as supplemented by the Fifteenth Supplemental Indenture constitutes a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) 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 assets of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this AgreementIssuers, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries Guarantors or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is subject, nor will such action result in any violation of any federalstatute or any order, state, local rule or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment regulation of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valucour
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of ---------------------------------------------------------------- the Issuers and Guarantors, jointly and severally, represents and warrants to, and agrees with, you that:
(a) As of their respective dates, the Offering Memorandum its date and the Preliminary Offering Memorandum do not, and at as of the Closing Date (as defined herein) ), the Offering Memorandum will not, 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 themthereto) made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. in writing for use in the Offering Memorandum (or any supplement or amendment thereto) and set forth in a letter between the Issuers and the Initial Purchasers dated as of the date of the Offering Memorandum (the "Bear, ▇▇▇▇▇▇▇Initial Purchasers' Information"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum Initial Purchasers' Information is or will constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ expressly for use in the Preliminary Offering Memorandum or the Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers.
(b) Each Issuer and Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as will be discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) Each of the Issuers has, and each of the Guarantors will have prior to the Closing Date, all requisite corporate power and authority to execute, deliver and perform its respective obligations under the Registration Rights Agreement and the Indenture.
(d) The capitalization of Sun International is or will be as set forth in the Offering Memorandum under the caption "Capitalization" in the column "HistoricalActual." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Fourth Amended and Restated Revolving Credit Agreement Facility dated as of November 19, 19962001, as amended, among Sun BahamasInternational Bahamas Limited, Sun International, SINA, certain of the CompanySun International's subsidiaries and subsidiaries, certain financial institutions and The Canadian Imperial Bank of Nova ScotiaCommerce, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as are or may be disclosed in the Offering Memorandum. All of the subsidiaries of the Issuers are listed in Schedule 2(c) attached hereto.
(de) The Offered Securities, the Guarantees Guarantees, the Indenture and the Indenture Registration Rights Agreement conform or will conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(ef) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management relinquishment agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms conform or will conform in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts International Management Limited ("SRLSIML"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms or will conform in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as is or may be disclosed in the Offering Memorandum.
(fg) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, (ii) in breach or violation of any statute, judgment, decree, order, rule or regulation applicable to any of them or any of their respective properties or assets, or (iiiii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause clauses (ii) and (iii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(gh) 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 Offered Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") Agreement and the Second Supplemental Indenture, the issuance and sale of the Offered Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument (other than the consent previously obtained under the Existing Credit Agreement) to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(hi) 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 Offered Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Offered Securities in any jurisdiction referred to in Section 3(a3(b) hereof; no injunction, restraining order or order of any nature by any foreign, Federal federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a3(b) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Offered Securities or in any manner draw into question the validity of this Agreement, the Offered Securities, the Indenture or the Registration Rights Agreement.
(ij) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as is or may be disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(jk) Except as is or may be disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(kl) Except as is or may be disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed Solomon Kerzner, Howard B. Kerzner, Charles D. Adamo and John R. Allison (col▇▇▇▇▇▇▇▇▇, ▇▇▇ "E▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇"), ▇▇▇ ▇▇▇ ▇▇▇▇ ▇as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC has all certificatesal▇ ▇▇▇▇▇▇▇▇▇▇▇▇, consents, exemptions, orders, permits, licenses, authorizations or other approvals or rights of and from, and has made all declarations and filings with, all foreign, Federalfederal, 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, France, Mauritius and the Comoros Maldives required to own, lease, license and use its properties and assets and to conduct its current business in the manner described or to be described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering MemorandumExecutive Officers, TCA, SRL TCA and SPIC SIML is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering MemorandumExecutive Officers, SRL, SPIC 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 is or may be disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering MemorandumExecutive Officers, SRL, SIML nor TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering MemorandumExecutive Officers, SRL, SPIC 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, France, Mauritius or the Comoros Maldives (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC SIML or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering MemorandumExecutive Officers, SRL, SPIC SIML and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(lm) Except as is or may be disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit AgreementsAgreement, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so describeddescribed or to be described therein. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(mn) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuvalue of their respective properties.
(o) The accounta
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the The Issuers and Guarantorseach Guarantor, jointly and severally, represents represent and warrants warrant to, and agrees agree with, you the Initial Purchasers that:
(a) As A preliminary offering memorandum (the “Preliminary Offering Memorandum”) relating to the Notes and a final offering memorandum (the “Final Offering Memorandum”) disclosing the offering price and other final terms of their respective dates, the Offering Memorandum Notes and that is dated as of the date of this Agreement (even if finalized and issued subsequent to the date of this Agreement) have been or will be prepared by the Issuers. “General Disclosure Package” means the Preliminary Offering Memorandum do notMemorandum, together with any Issuer Free Writing Communication (as hereinafter defined) existing at or prior to the time when sales of the Notes were first made (the “Applicable Time”) and at the information that is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule B to this Agreement (including the form of the term sheet listing the final terms of the Notes and their offering included in Schedule C to this Agreement). The Final Offering Memorandum, in the form first used by the Initial Purchasers to confirm sales of the Notes and as of the Closing Date (as defined hereinafter giving effect to any supplement thereto) the Offering Memorandum will not, contain an not include any untrue statement of a material fact or omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided. At the Applicable Time, howeverneither (i) the General Disclosure Package, that nor (ii) any individual Supplemental Marketing Material (as hereinafter defined), when considered together with the representations and warranties contained General Disclosure Package, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact necessary in this paragraph (a) shall order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The preceding two sentences do not apply to statements in or omissions from the Preliminary Final Offering Memorandum or Memorandum, the Offering Memorandum (General Disclosure Package or any supplement or amendment to them) made in reliance Supplemental Marketing Material based upon and in conformity with written information relating to any Initial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ expressly Representative specifically for use in the Preliminary Offering Memorandum or the Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers.
(b) Each Issuer and Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to owntherein, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent and agreed that the failure to possess only such Authorizations could not reasonably be expected to have a Material Adverse Effect; (iiinformation is that described as such in Section 7(b) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effecthereof.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and Guarantors, jointly and severally, represents and warrants to, and agrees with, you that:: 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 ▇▇▇▇ ▇▇▇.
(a) As of their respective dates, At the Offering Memorandum and time the Preliminary Offering Memorandum do not, Registration Statement became effective and at the Closing Date 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 1939 Act and the rules and regulations of the Commission under the 1939 Act (the "1939 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 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 relating to the Underwriters furnished to the Issuers in writing by Bear, ▇▇▇▇▇▇▇ & Co. Inc. expressly for use in the Registration Statement or the Prospectus and any amendments and supplements thereto (the "Underwriter Information"). The Issuers and the Underwriters acknowledge for all purposes of this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph on the cover page of the final prospectus supplement and the first (including the table therein), second, third, fourth and eighth paragraphs in the "Underwriting" section of the final prospectus supplement constitute the only such Underwriter Information. Each preliminary prospectus and prospectus filed as defined hereinpart 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.
(b) The documents incorporated or deemed to be incorporated by reference in the Offering Memorandum Registration Statement and the Prospectus (the "Incorporated Documents"), at the time they were or hereafter are filed with the Commission, complied and will notcomply 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, contain 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; provided, however, that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment to them) made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ 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.
(bc) 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.
(d) Each Issuer and Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering MemorandumProspectus) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(ce) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Second Amended and Restated Revolving Credit Agreement dated as of November 1August 12, 1996, as amended1997, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering MemorandumProspectus.
(df) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering MemorandumProspectus.
(eg) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable nonassessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering MemorandumProspectus; each of the agreements described in the Offering Memorandum Prospectus to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering MemorandumProspectus, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering MemorandumProspectus.
(fh) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(gi) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") 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 governmen- tal 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")laws) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(hj) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum Registration Statement or the Preliminary Offering Memorandum Prospectus or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum Registration Statement or the Preliminary Offering Memorandum Prospectus in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture Securities or the Registration Rights AgreementIndenture.
(ik) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, Registration Statement or the Prospectus no such action, suit or proceeding is threatened or contemplated.
(jl) Except as disclosed in the Offering Memorandum, Registration Statement or the Prospectus (i) neither Sun International nor any of its subsidiaries is in violation of any federalFederal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(km) Except as disclosed in the Offering Memorandum, Prospectus (i) each of Sun International, its subsidiaries, the persons listed as its directors and executive officers under named in Item 10 in its Annual Report on Form 20-F for the caption fiscal year ended December 31, 1996 (the "Management" in the Offering Memorandumexecutive officers") , TCA, TCA and SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) 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 Sun International, its subsidiaries, each of the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, TCA, TCA and SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, SRL, SPIC SRL nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering MemorandumProspectus, none of Sun International, any of its subsidiaries, any of the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, SRL, SRL nor TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, SRL, SPIC SRL or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC SRL or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuactiv
Appears in 1 contract
Sources: Purchase Agreement (Sun International North America Inc)
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through J.▇. ▇▇▇▇▇▇ Securities LLC, M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC and W▇▇▇▇ Fargo Securities, LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through J.▇. ▇▇▇▇▇▇ Securities LLC, M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC and W▇▇▇▇ Fargo Securities, LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through J.▇. ▇▇▇▇▇▇ Securities LLC, M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC and W▇▇▇▇ Fargo Securities, LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearJ.▇. ▇▇▇▇▇▇ Securities LLC, M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers LLC and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇W▇▇▇▇ Fargo Securities, LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable; has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture as supplemented by the Twenty-Second Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Twenty-Second Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Twenty-Second Supplemental Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) 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 assets of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this AgreementIssuers, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries Guarantors or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federalsubject, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuwill
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Deutsche Bank Securities Inc., Mizuho Securities USA LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Deutsche Bank Securities Inc., Mizuho Securities USA LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Deutsche Bank Securities Inc., Mizuho Securities USA LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearDeutsche Bank Securities Inc., Mizuho Securities USA LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture, (i) as supplemented by the Twentieth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Twentieth Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Twentieth Supplemental Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (ii) as supplemented by the Nineteenth Supplemental Indenture has been duly authorized, executed and delivered by the Issuers and the Guarantors, and (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Nineteenth Supplemental Indenture constitutes a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through BofA Securities, Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through BofA Securities, Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through BofA Securities, Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearBofA Securities, Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledgeequities or claims other than the liens securing the Credit Agreement;
(h) This Agreement has been duly authorized, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") executed and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges delivered by each of the shares Issuers and the Guarantors;
(i) Each of Sun International's subsidiaries the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its obligations hereunder;
(j) Each of the Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of the Securities and the Guarantees, as applicable, and the execution, delivery and performance of this Agreement and the Indenture;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of the Indenture and when delivered to, and paid for, by the Underwriters in accordance with the terms of this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture, as supplemented by the Sixteenth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Sixteenth Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees Trust Indenture Act; and the Indenture conform conforms or will conform, as applicable, in all material respects to the descriptions thereof contained in the Offering Memorandum.Time of Sale Information and the Prospectus;
(em) All The documents or sections of documents incorporated by reference into each of the outstanding shares Registration Statement, the Time of capital stock Sale Information and the Prospectus complied, as of Sun International the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and validly issued when the Notes have been duly executed, authenticated and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained delivered as provided in the Offering Memorandum; each Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the agreements described Guarantors in the Offering Memorandum to which Sun Internationalaccordance with their terms, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other partylaws of general applicability relating to or affecting creditors’ rights, except as disclosed in the Offering Memorandum.and to general equity principles;
(fo) Neither Sun International nor any None of its subsidiaries is the transactions contemplated by this Agreement (iincluding, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of its respective charter or by-laws, or (ii) in default in Section 7 of the performance of any obligation, bond, agreement, debenture, noteExchange Act, or any other evidence regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of indebtedness or any indenturethe Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, mortgagenone of the Issuers, deed of trust or other contract, lease or other instrument to which Sun International the Guarantors or any of its subsidiaries their respective affiliates has taken any action which is a party designed to or by which it has constituted or any of them is bound, which would have reasonably been expected to cause or to which any result in stabilization or manipulation of the property price of Sun International or any security of its subsidiaries is subject except, any such persons in connection with the case offering of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.the Securities;
(gq) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, The issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property or assets of Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is subject subject, nor will such action result in any violation of any statute or (iii) any lawsorder, administrative regulations rule or rulings or orders regulation of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuagen
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the The Issuers and Guarantors, the Guarantors jointly and severally, represents severally represent and warrants warrant to, and agrees agree with, you each of the Initial Purchasers that:
(a) As The Preliminary Memorandum as of their respective dates, its date did not contain; the Offering Memorandum and at the Preliminary Offering Memorandum do not, Time of Sale and at the Closing Date (as defined herein) Date; and the Offering Memorandum Final Memorandum, and any amendment or supplement thereto does not and will not, not contain an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations or warranties set forth in this paragraph shall not apply to statements in or omissions from any Memorandum made in reliance upon and in conformity with information furnished in writing to the Issuers by the Initial Purchasers through the Representative expressly for use therein, as specified in Section 11. The documents incorporated by reference in the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or Securities Exchange Act of 1934, as amended (the “Exchange Act”), as applicable, and none of such documents contained any 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, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties contained any further documents so filed and incorporated by reference in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any 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, in the light of the circumstances under which they were made, not misleading.
(b) The Partnership (including its agents and representatives, other than the Initial Purchasers in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Partnership or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary Memorandum, (ii) the Final Memorandum, (iii) the Pricing Supplement, which constitutes part of the Offering Memorandum Memorandum, and (iv) any electronic road show or other written communications, in each case used in accordance with Section 4(c). Each such Issuer Written Communication, when taken together with the Offering Memorandum, did not, and at the Closing Date will not, contain any supplement untrue statement of a material fact or amendment omit to them) 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers Partnership in writing by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Representative expressly for use in the Preliminary Offering Memorandum or the Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers.
(b) Each Issuer and Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect")Written Communication.
(c) The capitalization of Sun International Partnership has been duly formed and is validly existing in good standing as set forth in the Offering Memorandum a limited partnership under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent Texas Business Organizations Code (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"“TBOC”), Societe de Participation et d'Investissements dans les Casinos ("SPIC") with full partnership power and authority to own or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, lease and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use operate its properties and assets and to conduct its current business in the manner as presently conducted and as described in the Offering any Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"and any amendment or supplement thereto), in each case in all material respects. The Partnership is duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it at the Closing Date or the nature or location of the properties to be owned or leased by it at the Closing Date makes such registration or qualification necessary, except to the extent that where the failure so to possess such Authorizations could register or qualify would not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that “Material Adverse Effect” shall mean a material adverse effect on (i) any Regulatory Authority the condition (as defined below) is considering modifyingfinancial or otherwise), limitingbusiness, conditioningproperties, suspending, revoking net worth or not renewing any such Authorizations results of Sun International, any of its subsidiaries, any operations of the persons listed Issuers and each Guarantor, considered as executive officers under the caption "Management" in the Offering Memorandumone enterprise, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews ability of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA Issuers and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for to perform their obligations under the conduct of their respective businesses and Notes, the valuGuarantees or the Transaction Documents.
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Citigroup Global Markets Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearCitigroup Global Markets Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable; has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture, as supplemented by the Twenty-First Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Twenty-First Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Twenty-First Supplemental Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) 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 assets of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this AgreementIssuers, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries Guarantors or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through Bear, ▇▇▇▇▇▇▇ & Co. Citigroup Global Markets Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Deutsche Bank Securities Inc. expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledgeequities or claims other than the liens securing the Credit Agreement;
(h) This Agreement has been duly authorized, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") executed and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges delivered by each of the shares Issuers and the Guarantors;
(i) Each of Sun International's subsidiaries the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its obligations hereunder;
(j) Each of the Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of the Securities and the Guarantees, as applicable, and the execution, delivery and performance of this Agreement and the Indenture;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of the Indenture and when delivered to, and paid for, by the Underwriters in accordance with the terms of this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture as supplemented by the Ninth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee), will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees Trust Indenture Act; and the Indenture will conform in all material respects to the descriptions thereof contained in the Offering Memorandum.Time of Sale Information and the Prospectus;
(em) All The documents or sections of documents incorporated by reference into each of the outstanding shares Registration Statement, the Time of capital stock Sale Information and the Prospectus complied, as of Sun International the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and validly issued when the Notes have been duly executed, authenticated and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained delivered as provided in the Offering Memorandum; each Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the agreements described Guarantors in the Offering Memorandum to which Sun Internationalaccordance with their terms, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other partylaws of general applicability relating to or affecting creditors’ rights, except as disclosed in the Offering Memorandum.to general equity principles;
(fo) Neither Sun International nor any None of its subsidiaries is the transactions contemplated by this Agreement (iincluding, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of its respective charter or by-laws, or (ii) in default in Section 7 of the performance of any obligation, bond, agreement, debenture, noteExchange Act, or any other evidence regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of indebtedness or any indenturethe Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, mortgagenone of the Issuers, deed of trust or other contract, lease or other instrument to which Sun International the Guarantors or any of its subsidiaries their respective affiliates has taken any action which is a party designed to or by which it has constituted or any of them is bound, which would have reasonably been expected to cause or to which any result in stabilization or manipulation of the property price of Sun International or any security of its subsidiaries is subject except, any such persons in connection with the case offering of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.the Securities;
(gq) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, The issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property or assets of Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is subject or (iii) subject, nor will such action result in any laws, administrative regulations or rulings or orders violation of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International statute or any order, rule or regulation of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or bodybody having jurisdiction over the Issuers, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International Guarantors or any of its their respective subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuCommunica
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the The Issuers and Guarantors, the Guarantors jointly and severally, represents severally represent and warrants warrant to, and agrees agree with, you each of the Initial Purchasers that:
(a) As (i) the Preliminary Memorandum as of their respective dates, its date did not contain and (ii) each of the Offering Memorandum and at the Preliminary Offering Memorandum do not, Time of Sale and at the Closing Date (as defined herein) and the Offering Memorandum Final Memorandum, and any amendment or supplement thereto does not and will notnot contain, contain an any untrue statement of a material fact or omit to state a any 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 or warranties contained set forth in this paragraph (a) shall not apply to statements in or omissions from any Memorandum made in reliance upon and in conformity with information furnished in writing to the Issuers by or on behalf of the Initial Purchasers expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of the Initial Purchasers consists of the information described as such in Section 11 hereof.
(b) The Partnership (including its agents and representatives, other than the Initial Purchasers in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Partnership or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary Offering Memorandum or Memorandum, (ii) the Final Memorandum, (iii) the Pricing Supplement, which constitutes part of the Offering Memorandum Memorandum, and (iv) any electronic road show or other written communications, in each case used in accordance with Section 4(c). Each such Issuer Written Communication, when taken together with the Offering Memorandum, did not, and at the Closing Date will not, contain any supplement untrue statement of a material fact or amendment omit to them) 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; provided, that the Issuers and Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers Partnership in writing by such Initial Purchaser expressly for use in any Issuer Written Communication, it being understood and agreed that the only such information furnished by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph consists of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" information described as such in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ 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 PurchasersSection 11 hereof.
(bc) Each Issuer of the Partnership and Guarantor the Operating Partnership has been duly incorporated formed and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a limited partnership under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”), with full partnership power and authority to own or lease and operate its properties and to conduct its business as presently conducted and as described in any Memorandum (and any amendment or supplement thereto), in each case in all material respects. Each of the Partnership and the Operating Partnership is duly registered or qualified as a foreign corporation authorized to do limited partnership for the transaction of business in under the laws of each jurisdiction in which the character of the business conducted by it at the Closing Date or the nature or location of its business the properties to be owned or its ownership leased by it at the Closing Date makes such registration or leasing of property requires such qualificationqualification necessary, except where the failure so to be so qualified could not, singly register or in the aggregate, qualify would not have a Material Adverse Effect. “Material Adverse Effect” shall mean (i) a material adverse effect on the condition (financial or otherwise), business, properties, net worth or results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "Historical." All operations of the issued Issuers and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except considered as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-lawsone enterprise, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any material impairment of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale ability of the Securities, compliance by each Issuer Issuers and each Guarantor with all to perform their obligations under the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights AgreementNotes, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum Guarantees or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights AgreementTransaction Documents.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the The Issuers and Guarantors, the Guarantors jointly and severally, represents severally represent and warrants warrant to, and agrees agree with, you each of the Initial Purchasers that:
(a) As The Preliminary Memorandum as of their respective dates, its date did not contain; the Offering Memorandum and at the Preliminary Offering Memorandum do not, Time of Sale and at the Closing Date (as defined herein) Date; and the Offering Memorandum Final Memorandum, and any amendment or supplement thereto does not and will not, not contain an any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations or warranties set forth in this paragraph shall not apply to statements in or omissions from any Memorandum made in reliance upon and in conformity with information furnished in writing to the Issuers by the Initial Purchasers through the Representative expressly for use therein, as specified in Section 11. The statistical and industry data included in each Memorandum are based on or derived from sources that the Issuers believe to be reliable and accurate. The documents incorporated by reference in the Preliminary Memorandum, the Offering Memorandum and the Final Memorandum, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or Exchange Act, as applicable, and none of such documents contained any 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, in the light of the circumstances under which they were made, not misleading; provided, however, that the representations and warranties contained any further documents so filed and incorporated by reference in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Memorandum, the Offering Memorandum or the Final Memorandum, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any 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, in the light of the circumstances under which they were made, not misleading.
(b) The Partnership (including its agents and representatives, other than the Initial Purchasers in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Partnership or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary Memorandum, (ii) the Final Memorandum, (iii) the Pricing Supplement, which constitutes part of the Offering Memorandum Memorandum, and
(iv) any electronic road show or other written communications, in each case used in accordance with Section 4(c). Each such Issuer Written Communication, when taken together with the Offering Memorandum, did not, and at the Closing Date will not, contain any supplement untrue statement of a material fact or amendment omit to them) 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers Partnership in writing by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Representative expressly for use in the Preliminary Offering Memorandum or the Offering Memorandum and that the Initial Purchasers shall not be deemed to have provided any information (and therefore are not responsible for any statements or omissions) pertaining to any arrangement or agreement with respect to any party other than the Initial Purchasers.
(b) Each Issuer and Guarantor has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect")Written Communication.
(c) The capitalization of Sun International Partnership has been duly formed and is validly existing in good standing as set forth in the Offering Memorandum a limited partnership under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent Texas Business Organizations Code (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"“TBOC”), Societe de Participation et d'Investissements dans les Casinos ("SPIC") with full partnership power and authority to own or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, lease and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use operate its properties and assets and to conduct its current business in the manner as presently conducted and as described in the Offering any Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"and any amendment or supplement thereto), in each case in all material respects. The Partnership is duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of each jurisdiction in which the character of the business conducted by it at the Closing Date or the nature or location of the properties to be owned or leased by it at the Closing Date makes such registration or qualification necessary, except to the extent that where the failure so to possess such Authorizations could register or qualify would not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that “Material Adverse Effect” shall mean a material adverse effect on (i) any Regulatory Authority the condition (as defined below) is considering modifyingfinancial or otherwise), limitingbusiness, conditioningproperties, suspending, revoking net worth or not renewing any such Authorizations results of Sun International, any of its subsidiaries, any operations of the persons listed Issuers and each Guarantor, considered as executive officers under the caption "Management" in the Offering Memorandumone enterprise, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews ability of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA Issuers and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for to perform their obligations under the conduct of their respective businesses and Notes, the valuGuarantees or the Transaction Documents.
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers [and Guarantors, ,] jointly and severally, represents and warrants to, and agrees with, you each Underwriter that:
(a) As 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 their respective datesthe 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 Offering Memorandum and Indenture has been duly qualified under the Preliminary Offering Memorandum do not, Trust Indenture Act.
(b) At the time the Registration Statement became effective and at the Closing Date 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 defined hereinpart 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 Offering Memorandum Registration Statement and the Prospectus (the "Incorporated Documents"), at the time they were or hereafter are filed with the Commission, complied and will notcomply 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, contain 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; provided, however, that the representations and warranties contained in this paragraph (a) shall not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment to them) made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ 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.
(bd) 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 Guarantor] has been duly incorporated and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering MemorandumProspectus) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International the Company and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(cf) 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 Sun International the Company is as set forth in the Offering Memorandum Prospectus under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors subsidiaries of the Company are duly authorized and validly issued and fully paid and nonassessablenon-assessable, and owned by Sun Internationalthe 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 Sun Internationalthe Company's subsidiaries under the Fourth Amended and Restated Revolving Credit Agreement dated as of November 19, 19962001, as amended, among Sun BahamasInternational Bahamas Limited, Sun Internationalthe Company, SINA, certain of the Company's subsidiaries and subsidiaries, certain financial institutions and The Canadian Imperial Bank of Nova ScotiaCommerce, as administrative and collateral 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, Sun International the Company [or any Guarantor], except as disclosed in the Offering MemorandumProspectus.
(dh) The Securities[, the Guarantees Guarantees] and the Indenture conform in all material respects to the descriptions thereof contained in the Offering MemorandumProspectus.
(ei) All the outstanding shares of capital stock of Sun International 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 management relinquishment agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering MemorandumProspectus; each of the agreements described in the Offering Memorandum Prospectus to which Sun Internationalthe Company, any of its subsidiaries, Sun Resorts International Management Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPICSIML") or TCA is a party conforms in all material respects to the description thereof contained in the Offering MemorandumProspectus, and Sun International the Company believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering MemorandumProspectus.
(fj) Neither Sun International 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 (iiiii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International 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 Sun International the Company or any of its subsidiaries is subject except, in the case of clause clauses (ii) and (iii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(gk) Each Issuer [and Guarantor 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 Guarantees] being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") Agreement and the Indenture, the issuance and sale of the Securities, compliance by each Issuer [and each Guarantor Guarantor] with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")laws) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International 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 Sun International 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 Sun International 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 Sun Internationalthe 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.
(hl) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum Registration Statement or the Preliminary Offering Memorandum Prospectus or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a4(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal federal or state court of competent jurisdiction has been issued with respect to Sun International the Company or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum Registration Statement or the Preliminary Offering Memorandum Prospectus in any jurisdiction referred to in Section 3(a4(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun Internationalthe Company, threatened against, Sun International 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, the Indenture Securities or the Registration Rights AgreementIndenture.
(im) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun Internationalthe Company, affecting Sun International 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 Guarantor] of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun Internationalthe Company, except as disclosed in the Offering Memorandum, Registration Statement or the Prospectus no such action, suit or proceeding is threatened or contemplated.
(jn) Except as disclosed in the Offering Memorandum, Registration Statement or the Prospectus (i) neither Sun International 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 Sun International 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 Sun Internationalthe 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 Sun International 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 Sun Internationalthe Company, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International the Company or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International 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.
(ko) Except as disclosed in the Offering Memorandum, Prospectus (i) each of Sun Internationalthe 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 Offering MemorandumProspectus] (the "executive officers") , TCA, SRL TCA and SPIC 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, Federalfederal, 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, France, Mauritius and the Comoros Maldives required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) 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 Sun Internationalthe Company, its subsidiaries, each of the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, TCA, SRL TCA and SPIC SIML is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun Internationalthe Company, its subsidiaries, the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, SRL, SPIC SIML nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering MemorandumProspectus, none of Sun Internationalthe Company, any of its subsidiaries, any of the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, SRL, SIML nor TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun Internationalthe Company, any of its subsidiaries, any of the persons listed as its executive officers under the caption "Management" in the Offering Memorandumofficers, SRL, SPIC 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, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuMaldive
Appears in 1 contract
Sources: Underwriting Agreement (Sun International Hotels LTD)
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Credit Suisse Securities (USA) LLC, J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Credit Suisse Securities (USA) LLC, J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Credit Suisse Securities (USA) LLC, J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearCredit Suisse Securities (USA) LLC, J.▇. ▇▇▇▇▇▇ Securities LLC and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture, (i) as supplemented by the Nineteenth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Nineteenth Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Nineteenth Supplemental Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (ii) as supplemented by the Eighteenth Supplemental Indenture has been duly authorized, executed and delivered by the Issuers and the Guarantors, and (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Eighteenth Supplemental Indenture constitutes a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuherei
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each The Issuers and the Guarantors jointly and severally represent and warrant to the Initial Purchasers that, as of the Issuers date hereof and Guarantors, jointly and severally, represents and warrants to, and agrees with, you thatas of the Closing Date:
(ai) As Neither the Time of their respective datesSale Document, nor any amendment or supplement thereto, as of the Offering Memorandum and the Preliminary Offering Memorandum do not, Applicable Time and at all times subsequent thereto up to and including the Closing Date (as defined herein) the Offering Memorandum will notDate, contain an contained or contains any untrue statement of a material fact, or omitted or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) the Final Offering Memorandum, and at the time of each sale of the Notes and at the Closing Date, as then amended or omit supplemented by the Issuers, if applicable, did not and will not, contain any untrue statement of a material fact, or omitted or omits 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, except that the representations and warranties contained set forth in this paragraph (aSection 4(a) shall do not apply to statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment to them) made in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to any Issuer in writing by the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Purchasers expressly for use in the Preliminary Offering Memorandum or the Final Offering Memorandum and or any amendment or supplement thereto, which information is specified in Section 12. No injunction or order has been issued that either (i) asserts that any of the Initial Purchasers shall not be deemed Transactions is subject to have provided the registration requirements of the Act or (ii) would prevent or suspend the issuance or sale of any information (and therefore are not responsible for of the Notes or the use of the Time of Sale Document, the Final Offering Memorandum or any statements amendment or omissions) pertaining to supplement thereto, in any arrangement or agreement with respect to any party other than the Initial Purchasersjurisdiction.
(b) Neither of the Issuers has prepared, made, used, authorized, approved or distributed, and neither of the Issuers will prepare, make, use, authorize, approve or distribute, any written communication that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Issuers or their agents and representatives (other than a communication referred to in clauses (i) and (ii) below, an “Additional Written Communication”) other than (i) the Time of Sale Document, (ii) the Final Offering Memorandum and (iii) any electronic road show or other written communications, in each case made, prepared, used and distributed in accordance with Section 5(c)). Each such Additional Written Communication, when taken together with the Time of Sale Document, did not, and at the Closing Date will not, contain any 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; provided that this representation and warranty shall not apply to statements in or omissions from each such Additional Written Communication made in reliance upon and in conformity with information furnished to any Issuer in writing by the Initial Purchasers expressly for use in any Additional Written Communication.
(c) Each corporation, partnership, limited liability company or other entity in which the Company, directly or indirectly through any of its subsidiaries, owns more than fifty percent (50%) of any class of equity securities or interests is listed on Schedule III hereto (the “Subsidiaries”). Each Subsidiary that is a Foreign Subsidiary has an asterisk (“*”) next to its name on such schedule.
(d) Each of the Company and Guarantor the Subsidiaries (i) has been duly incorporated and organized or formed, as the case may be, is validly existing as a corporation and is in good standing under the laws of its jurisdiction of incorporation and organization, (ii) has the corporate all requisite 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 propertiesproperties and assets as described in the Offering Memorandum, and each (iii) is duly qualified or licensed to do business and is in good standing as a foreign corporation corporation, partnership, limited liability company or other entity, as the case may be, and is authorized to do business in each jurisdiction in which the nature of its business such businesses or its the ownership or leasing of property such properties requires such qualification, except where the failure to be so qualified could would not, singly individually or in the aggregate, have a material adverse effect on (A) the properties, results of business, operations, earnings, assets, liabilities or condition (financial condition or prospects otherwise) of Sun International the Company and its subsidiariesthe Subsidiaries, taken as a whole whole, (B) the ability of the Issuers and the Guarantors to perform their obligations in all material respects under any Document, (C) the enforceability of the Collateral Agreements or the attachment, perfection or priority of any of the Liens or security interests intended to be created thereby, (D) the validity or enforceability of any of the Documents or (E) the consummation of any of the Transactions (each, a "“Material Adverse Effect"”).
(ce) The capitalization of Sun International is as set forth Subject to the assumptions in the Final Offering Memorandum under the caption "“Capitalization" in the column "Historical." All ,” all of the issued and outstanding shares of capital stock of, or other ownership membership interests in, each of as the Guarantors are case may be, the Company and the Subsidiaries have been duly authorized and validly issued and issued, are fully paid and nonassessablenonassessable (except as such rights may arise under mandatory provisions of applicable statutory law that may not be waived or otherwise agreed and not as a result of any rights contained in any organizational document), and owned were not issued in violation of, and are not subject to, any preemptive or similar rights. The table (including the footnotes thereto) in the Time of Sale Document and the Final Offering Memorandum under the caption “Capitalization” sets forth, as of its date, the capitalization of the Company. Except for such entities listed on Schedule III hereto, of which the Company does not own 100% of the outstanding equity securities or interests, all of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries are owned, directly or indirectly, by Sun Internationalthe Company, and all of the outstanding shares of capital stock or other equity interests of the Company are owned, directly or indirectly, by GS Maritime Intermediate Holding, LLC, a Delaware limited liability company, in each case free and clear of any all liens, security interestinterests, mortgagemortgages, pledgepledges, claimcharges, lienequities, encumbrance claims or adverse interest restrictions on transferability or encumbrances of any nature kind (eachcollectively, a "Lien") “Liens), other than those imposed by the Act, in connection with the Transactions and the securities or “Blue Sky” laws of any restrictions on transfercertain domestic or foreign jurisdictions. Other than as disclosed in the Time of Sale Document and the Final Offering Memorandum, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There there are no outstanding subscriptions, rights, warrants, (A) options, calls, convertible warrants or exchangeable securities, commitments of sale or Liens related to or entitling any person other rights to purchase from any of the Company or otherwise the Subsidiaries, (B) agreements, contracts, arrangements or other obligations of any of the Company or the Subsidiaries to acquire issue, or (C) other rights to convert any obligation into or exchange any securities for, in the case of each of clauses (A) through (C), shares of the capital stock of, or other ownership interest or equity interests in, Sun International the Company or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering MemorandumSubsidiaries.
(f) Neither Sun International nor No holder of securities of any of the Company or the Subsidiaries will be entitled to have such securities registered under any registration statement required to be filed by the Issuers and the Guarantors with respect to the Notes pursuant to the Registration Rights Agreement.
(g) Each of Finance Corp. and the Guarantors that is a corporation has all requisite corporate power and authority, and each of the Company and the Guarantors that is a partnership, limited liability company or other unincorporated entity has all requisite partnership, limited liability company or other power and authority, to execute, deliver and perform its subsidiaries obligations under the Documents to which it is a party and to consummate the Transactions.
(h) This Agreement has been duly and validly authorized, executed and delivered by the Issuers and the Guarantors. Each of the Indenture and the Collateral Agreements have been duly and validly authorized by the Issuers and the Guarantors. Each of the Indenture and the Collateral Agreements, when executed and delivered by the Issuers and the Guarantors, will constitute a legal, valid and binding obligation of each of the Issuers and Guarantors, enforceable against each of the Issuers and the Guarantors in accordance with its terms, except that such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.
(i) The Registration Rights Agreement has been duly and validly authorized by the Issuers and the Guarantors. The Registration Rights Agreement, when executed and delivered by the Issuers and the Guarantors, will constitute a legal, valid and binding obligation of the Issuers and the Guarantors, enforceable against each of the Issuers and the Guarantors in accordance with its terms, except (i) that such enforceability may be limited by (A) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (B) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought and (ii) any rights to indemnity or contribution thereunder may be limited by federal and state securities laws and public policy considerations.
(j) The Notes, when issued, will be in the form contemplated by the Indenture. The Indenture, when executed and delivered by the Issuers and the Guarantors, will meet the requirements for qualification under the Trust Indenture Act of 1939, as amended (the “TIA”). Each of the Notes, Exchange Notes and Private Exchange Notes has been duly and validly authorized by the Issuers. The Notes, when delivered to and paid for by the Initial Purchasers in accordance with the terms of this Agreement and the Indenture, will have been duly executed, issued and delivered by the Issuers, will constitute legal, valid and binding obligations of the Issuers, will be entitled to the benefit of the Indenture, the Collateral Agreements and the Registration Rights Agreement and will be enforceable against the Issuers in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.
(k) The Guarantees have been duly and validly authorized by the Guarantors and, when delivered to the Initial Purchasers, will have been duly executed, issued and delivered and will constitute legal, valid and binding obligations of the applicable Guarantor, entitled to the benefit of the Indenture, the Collateral Agreements, and the Registration Rights Agreement, and enforceable against such Guarantor in accordance with its terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought.
(l) None of the Company or the Subsidiaries is in violation of its certificate of incorporation, by-laws or other organizational documents (the “Charter Documents”). None of the Company or the Subsidiaries is (i) in violation of any Federal, state, local or foreign statute, law (including, without limitation, common law) or ordinance, or any judgment, decree, rule, regulation or order (collectively, “Applicable Law”) of any federal, state, local and other governmental authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory organization, domestic or foreign (each, a “Governmental Authority”) applicable to it or any of its respective charter or by-lawsproperties, or (ii) in breach of or default in the performance of under any obligation, bond, agreement, debenture, note, note or any other evidence of indebtedness or any indebtedness, indenture, mortgage, deed of trust or other contracttrust, lease or any other agreement or instrument to which Sun International or any of its subsidiaries it is a party or by which it or any of them its respective properties is boundbound (collectively, “Applicable Agreements”), except for such violations, breaches or to which any of the property of Sun International defaults that would not, individually or any of its subsidiaries is subject except, in the case of clause (ii)aggregate, for such defaults that could not reasonably be expected to have a Material Adverse Effect. Other than as disclosed in the Time of Sale Document, to the knowledge of the Issuers and the Guarantors, all Applicable Agreements are in full force and effect and constitute legal, valid and binding obligations of the parties thereto and there exists no condition that, with the passage of time or otherwise, would constitute or result in (x) a violation of any Charter Document or Applicable Law, (y) a breach of or default under any Applicable Agreement or (z) the imposition of any penalty or the acceleration of any indebtedness of the Company, the Subsidiaries or Parent.
(gm) Each Issuer and Guarantor has all Neither 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 or performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and Documents nor the consummation of any Transaction will conflict with, violate, constitute a breach of or a default (with the transactions contemplated hereby passage of time or otherwise) under, require the consent of any person (other than consents already obtained and thereby in full force and effect) under, result in the imposition of a Lien on any assets of the Company or the Subsidiaries (except for Liens pursuant to the Collateral Agreements), or result in an acceleration of indebtedness under or pursuant to (i) the Charter Documents, (ii) any Applicable Agreement or (iii) any Applicable Law. After consummation of the Offering and the other Transactions, no Default or Event of Default will not require any exist.
(n) When executed and delivered, each of the Documents will conform in all material respects to the descriptions thereof in the Time of Sale Document and the Final Offering Memorandum.
(o) No consent, approval, authorization or other order of any courtGovernmental Authority or third party is required for the issuance and sale by the Issuers of the Notes to the Initial Purchasers or the consummation by the Issuers and the Guarantors of the other Transactions, regulatory body, administrative agency or other governmental body (except those already received such as have been obtained and such as may be required under state securities or “Blue Sky” laws or Blue Sky laws and with respect applicable in foreign jurisdictions (in relation to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance purchase or sale of the Securities or Notes in such foreign jurisdictions) in connection with the use purchase and resale of the Offering Memorandum or Notes by the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights AgreementInitial Purchasers.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(jp) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any there is no action, claim, suit, demand, hearing, notice of its subsidiaries is in violation of any federalor deficiency, stateor proceeding, local domestic or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral“Proceedings”), 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 knowledge of Sun International's knowledgethe Issuers or the Guarantors, threatened claimthreatened, actionthat either (i) seeks to restrain, investigation enjoin 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) prevent the presence in or release into the environment consummation of any emissions, discharges of the Transactions or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or otherwise challenge any of its subsidiariesthe Documents or (ii) would, now individually or in the pastaggregate, have a Material Adverse Effect. The Issuers are not subject to any judgment, order, decree, rule or (y) circumstances forming the basis regulation of any violation or alleged violation of any Environmental Law (collectivelyGovernmental Authority that would, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now individually or in the pastaggregate, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(kq) Except as disclosed in Each of the Offering MemorandumCompany and the Subsidiaries possesses all licenses, (i) each of Sun Internationalpermits, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC has all certificates, consents, exemptions, orders, permits, licenses, approvals and other authorizations or other approvals or rights of and from, and has made all declarations and filings with, all foreignGovernmental Authorities, 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 presently required or necessary to engaging in gaming, hotel and resort operationsown or lease, as applicablethe case may be, and to operate its respective properties and to carry on its respective businesses as now or proposed to be conducted as set forth in The Bahamas, Connecticut, New Jersey, France, Mauritius the Time of Sale Document and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Final Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"“Permits”), except to the extent that where the failure to possess obtain such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effectPermits would not, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" individually or in the Offering Memorandumaggregate, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through BofA Securities, Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through BofA Securities, Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through BofA Securities, Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearBofA Securities, Inc., Deutsche Bank Securities Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment 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.supplement thereto;
(bd) None of the Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated good and is validly existing valid title to all personal property owned by it or reflected as a corporation owned by it in good standing under the laws financial statements included in each of its jurisdiction the Registration Statement, the Time of incorporation Sale Information and has the corporate power Prospectus, in each case free and authority to carry on its business clear of all liens, encumbrances and defects except such as it is currently being conducted or is either (i) are described in each of the Registration Statement, the Time of Sale Information and the Prospectus, (ii) do not materially affect the value of such property and do not interfere with the use made and proposed to be conducted made of such property by the Issuers, the Guarantors and their respective subsidiaries, or (as discussed in the Offering Memorandumiii) and could not reasonably be expected 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 propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).; and any real property and buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Issuers, the Guarantors and their respective subsidiaries;
(cf) The capitalization Each of Sun International the Issuers, the Guarantors and their respective subsidiaries has been duly formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable; has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification; and is not subject to liability or disability by reason of the failure to be so qualified in any such jurisdiction, except such as would not, individually or in the aggregate, have a Material Adverse Effect;
(g) All the outstanding ownership interests of the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture as supplemented by the Twenty-Fourth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Twenty-Fourth Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Twenty-Fourth Supplemental Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) 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 assets of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this AgreementIssuers, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuGuaranto
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Citigroup Global Markets Inc. and Deutsche Bank Securities Inc. expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through Bear, ▇▇▇▇▇▇▇ & Co. Citigroup Global Markets Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Deutsche Bank Securities Inc. expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Officers’ Certificate;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture (i) as supplemented by the Ninth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors and (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent) constitutes a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (ii) as supplemented by the Twelfth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, 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 contracttrust, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to ownloan agreement, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (eachlicense, an "Authorization")franchise agreement, except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valupermit
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the The Issuers and Guarantors, the Guarantors jointly and severally, represents severally represent and warrants warrant to, and agrees agree with, you each of the Initial Purchasers that:
(a) As (i) the Preliminary Memorandum as of their respective dates, its date did not contain and (ii) each of the Offering Memorandum and at the Preliminary Offering Memorandum do not, Time of Sale and at the Closing Date (as defined herein) and the Offering Memorandum Final Memorandum, and any amendment or supplement thereto does not and will notnot contain, contain an any untrue statement of a material fact or omit to state a any 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 or warranties contained set forth in this paragraph (a) shall not apply to statements in or omissions from any Memorandum made in reliance upon and in conformity with information furnished in writing to the Issuers by or on behalf of the Initial Purchasers expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of the Initial Purchasers consists of the information described as such in Section 11 hereof.
(b) The Partnership (including its agents and representatives, other than the Initial Purchasers in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Partnership or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary Memorandum, (ii) the Final Memorandum, (iii) the Pricing Supplement, which constitutes part of the Offering Memorandum Memorandum, and (iv) any electronic road show or other written communications, in each case used in accordance with Section 4(c). Each such Issuer Written Communication, when taken together with the Offering Memorandum (as of the Time of Sale, did not, and at the Closing Date will not, contain any 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; provided, that the Issuers and Guarantors make no representation and warranty with respect to any supplement statements or amendment to them) omissions made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers Partnership in writing by such Initial Purchaser expressly for use in any Issuer Written Communication, it being understood and agreed that the only such information furnished by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph consists of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" information described as such in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ 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 PurchasersSection 11 hereof.
(bc) Each Issuer of the Partnership and Guarantor the Operating Partnership has been duly incorporated formed and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a limited partnership under the Delaware Revised Uniform Limited Partnership Act (the “Delaware LP Act”), with full partnership power and authority to own or lease and operate its properties and to conduct its business as presently conducted and as described in any Memorandum (and any amendment or supplement thereto), in each case in all material respects. Each of the Partnership and the Operating Partnership is duly registered or qualified as a foreign corporation authorized to do limited partnership for the transaction of business in under the laws of each jurisdiction in which the character of the business conducted by it at the Closing Date or the nature or location of its business the properties to be owned or its ownership leased by it at the Closing Date makes such registration or leasing of property requires such qualificationqualification necessary, except where the failure so to be so qualified could not, singly register or in the aggregate, qualify would not have a Material Adverse Effect. “Material Adverse Effect” shall mean (i) a material adverse effect on the condition (financial or otherwise), business, properties, net worth or results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "Historical." All operations of the issued Issuers and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except considered as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-lawsone enterprise, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any material impairment of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale ability of the Securities, compliance by each Issuer Issuers and each Guarantor with all to perform their obligations under the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights AgreementNotes, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the SecuritiesGuarantees, the Indenture or the Registration Rights AgreementTransaction Documents.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Deutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Deutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Deutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearDeutsche Bank Securities Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture, (i) as supplemented by the Eighteenth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Eighteenth Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Eighteenth Supplement will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (ii) as supplemented by the Sixteenth Supplemental Indenture has been duly authorized, executed and delivered by the Issuers and the Guarantors, and (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Sixteenth Supplemental Indenture constitutes a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuinclud
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Barclays Capital Inc., Citigroup Global Markets Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Barclays Capital Inc., Citigroup Global Markets Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Barclays Capital Inc., Citigroup Global Markets Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearBarclays Capital Inc., Citigroup Global Markets Inc. and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment 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.supplement thereto;
(bd) None of the Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated good and is validly existing valid title to all personal property owned by it or reflected as a corporation owned by it in good standing under the laws financial statements included in each of its jurisdiction the Registration Statement, the Time of incorporation Sale Information and has the corporate power Prospectus, in each case free and authority to carry on its business clear of all liens, encumbrances and defects except such as it is currently being conducted or is either (i) are described in each of the Registration Statement, the Time of Sale Information and the Prospectus, (ii) do not materially affect the value of such property and do not interfere with the use made and proposed to be conducted made of such property by the Issuers, the Guarantors and their respective subsidiaries, or (as discussed in the Offering Memorandumiii) and could not reasonably be expected 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 propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).; and any real property and buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Issuers, the Guarantors and their respective subsidiaries;
(cf) The capitalization Each of Sun International the Issuers, the Guarantors and their respective subsidiaries has been duly formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable; has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification; and is not subject to liability or disability by reason of the failure to be so qualified in any such jurisdiction, except such as would not, individually or in the aggregate, have a Material Adverse Effect;
(g) All the outstanding ownership interests of the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledge, claim, lien, encumbrance equities or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or claims other defects of title whatsoever except for than the pledges of liens securing the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.;
(dh) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have This Agreement has been duly authorized authorized, executed and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; delivered by each of the agreements described in Issuers and the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.Guarantors;
(f) Neither Sun International nor any of its subsidiaries is (i) in violation Each of the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its respective charter or by-laws, or obligations hereunder;
(iij) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any Each of the property Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) 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 the Guarantees, as applicable, and the execution, delivery and performance of this Agreement, the registration rights agreement Indenture and the Authentication Order;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of even date herewith relating to the Securities (Indenture and when delivered to, and paid for, by the "Registration Rights Underwriters in accordance with the terms of this Agreement") , will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the issuance benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture as supplemented by the Twenty-Fifth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when the Twenty-Fifth Supplemental Indenture is executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), the Base Indenture as supplemented by the Twenty-Fifth Supplemental Indenture will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Trust Indenture Act; and the Indenture conforms or will conform, as applicable, in all material respects to the descriptions thereof in the Time of Sale Information and the Prospectus;
(m) The documents or sections of documents incorporated by reference into each of the Registration Statement, the Time of Sale Information and the Prospectus complied, as of the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and when the Notes have been duly executed, authenticated and delivered as provided in the Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the Guarantors in accordance with their terms, enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights, and to general equity principles;
(o) None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of the Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, none of the Issuers, the Guarantors or any of their respective affiliates has taken any action which is designed to or which has constituted or which would have reasonably been expected to cause or result in stabilization or manipulation of the price of any security of any such persons in connection with the offering of the Securities;
(q) The issue and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) 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 assets of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this AgreementIssuers, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuGuarantors
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and Guarantors, the Guarantors jointly and severally, severally represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus or Final Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus and the Final Prospectus, and at the Closing Date time of filing thereof, complied in all material respects with the Securities Act.
(as defined hereinb) The Disclosure Package, at the Offering Memorandum will notApplicable Time, did not contain an any 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; provided, however, provided that the representations Issuers and warranties contained in this paragraph (a) shall not apply the Guarantors make no representation and warranty with respect to any 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 Underwriter furnished to the Issuers in writing by such Underwriter through the Representative expressly for use therein, as specified in Section 11 hereof.
(c) The Issuers (including their respective agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to, and will not prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Securities Act) (other than the Preliminary Prospectus, the Pricing Term Sheet, the Final Prospectus, any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act and any other document listed on behalf Schedule III) that constitutes an offer to sell or solicitation of an offer to buy any of the Notes (each such Initial Purchaser through Bearcommunication by the Issuers, ▇▇▇▇▇▇▇ & Co. Inc. an “Issuer Free Writing Prospectus”) without the prior consent of the Underwriters; and any such Issuer Free Writing Prospectus the use of which has been previously consented to by the Underwriters is set forth substantially in form and substance as attached hereto on Schedule IV. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be ("Bearwithin the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby), ▇▇▇▇▇▇▇"). The and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not at the Applicable Time, and when taken together with the Final Prospectus at the Closing Date (as defined below) will not, contain any 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; provided that the Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph Guarantors make no representation and Section 6 hereof) that the warranty with respect to any statements set forth or omissions made in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second each such Issuer Free Writing Prospectus in reliance upon and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only conformity with information (the "Initial Purchasers' Information") relating to any Underwriter furnished to the Issuers in writing by such Underwriter through the Representative expressly for use in such Issuer Free Writing Prospectus or on behalf any amendment or supplement thereto.
(d) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any Initial Purchaser post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuers or related to the offering of the Notes has been initiated or threatened by the Commission; as of the effective date of the Registration Statement, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Final Prospectus and any amendment or supplement thereto and as of the Closing Date, the Final Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers in writing by such Underwriter through Bear, ▇▇▇▇▇▇▇ the Representative expressly for use in the Preliminary Offering Memorandum Registration Statement and the Final Prospectus and any amendment 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 Purchaserssupplement thereto.
(be) The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus conformed, when such documents were filed with the Commission, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, Disclosure Package or Final Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each Issuer and Guarantor of the Issuers has been duly incorporated formed or incorporated, as applicable, and is validly existing as a corporation limited partnership or corporation, as applicable, in good standing under the laws of its jurisdiction the State of incorporation and has Delaware. Each of the corporate power and authority Issuers is duly registered or qualified to carry on its do business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to owna foreign business organization, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in under the laws of each jurisdiction in which the nature conduct of its business or its ownership or leasing of property requires such registration or qualification, except where the failure to so register or qualify or be so qualified could in good standing would not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a “Material Adverse Effect.
” shall mean a material adverse effect on the condition (l) Except financial or otherwise), earnings, business or properties, of the Issuers and their subsidiaries, taken as disclosed a whole, whether or not arising from transactions in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each ordinary course of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effectbusiness.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus, as of its date, the Time of Sale Information, at the Time of Sale and at the Closing Date (Time of Delivery, and the Prospectus, as defined herein) of its date and at the Offering Memorandum Time of Delivery, and any amendments or supplements thereto do not and will not, not contain an untrue statement of a material fact required to be stated therein 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; provided, however, that the representations this representation and warranties contained in this paragraph (a) warranty shall not apply to any statements in or omissions made in reliance upon and in conformity with information relating to the Underwriters furnished in writing to the Issuers by or on behalf of an Underwriter through Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Information and no statement of material fact included in the Time of Sale Information that is required to be included in the Prospectus has been omitted therefrom;
(b) None of the Issuers or any of the Guarantors (including their respective agents and representatives, other than the Underwriters in their capacity as such) has prepared, made, used, authorized, approved or referred to and none of the Issuers or any of the Guarantors will prepare, make, use, authorize, approve or refer to any “written communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuers, the Guarantors or their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Offering Memorandum Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto, which constitute part of the Time of Sale Information, and (v) any electronic road show or other written communications, in each case approved in writing in advance by the Representatives. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Time of Sale Information, did not, and at the Time of Delivery will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers or the Offering Memorandum Guarantors in writing by such Underwriter through Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in any Issuer Free Writing Prospectus. The Time of Sale Information, did not, and at the Time of Delivery, will not, contain any 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; provided that the Issuers and the Guarantors make no representation and warranty with respect to any statements or omissions made in the Time of Sale Information in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers by such Underwriter through Citigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. LLC expressly for use in the Time of Sale Information.
(c) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers or any of their affiliates. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Guarantors, the Issuers or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any 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; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Time of Delivery, the Prospectus will not contain any untrue statement of a material fact or amendment omit to themstate a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Initial Purchaser Underwriter furnished to the Issuers in writing by or on behalf of such Initial Purchaser Underwriter through BearCitigroup Global Markets Inc., ▇.▇. ▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ LLC expressly for use in the Preliminary Offering Memorandum Registration Statement and the Prospectus and any amendment or supplement thereto;
(d) None of the Offering Memorandum Issuers, the Guarantors or any of their respective subsidiaries has sustained since the date of the latest respective audited financial statements included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and that the Initial Purchasers shall Prospectus any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any court or governmental action, order or decree, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus; and, since the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Information and the Prospectus, there has not been any change in the capital stock, limited liability company interests or partnership interests, as the case may be, or long-term debt of the Issuers, the Guarantors or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, members’ or stockholders’ equity or results of operations of the Issuers, the Guarantors and their respective subsidiaries, taken as a whole, otherwise than as set forth or contemplated in each of the Registration Statement, the Time of Sale Information and the Prospectus;
(e) Each of the Issuers, the Guarantors and their respective subsidiaries has good and valid title to all personal property owned by it or reflected as owned by it in the financial statements included in each of the Registration Statement, the Time of Sale Information and the Prospectus, in each case free and clear of all liens, encumbrances and defects except such as are described in each of the Registration Statement, the Time of Sale Information and the Prospectus or except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be deemed to have provided made of such property by the Issuers, the Guarantors and their respective subsidiaries; and any information (real property and therefore buildings held under lease by the Issuers, the Guarantors and their respective subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not responsible for any statements or omissions) pertaining material and do not interfere with the use made and proposed to any arrangement or agreement with respect to any party other than be made of such property and buildings by the Initial Purchasers.Issuers, the Guarantors and their respective subsidiaries;
(bf) Each Issuer of the Issuers, the Guarantors and Guarantor their respective subsidiaries has been duly incorporated formed or incorporated, as the case may be, and is validly existing as a limited liability company or corporation, as the case may be, under the laws of the state of its incorporation or formation, as applicable, and has been duly qualified as a foreign corporation or limited liability company, as the case may be, for the transaction of business in and is in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each other jurisdiction in which the nature of its it owns or leases properties or conducts any business or its ownership or leasing of property requires so as to require such qualification, except where ; and is not subject to liability or disability by reason of the failure to be so qualified could in any such jurisdiction, except such as would not, singly individually or in the aggregate, have a material adverse effect on the propertiescurrent or future financial position, members’ or stockholders’ equity or results of operationsoperations of the Issuers, financial condition or prospects of Sun International the Guarantors and its their respective subsidiaries, taken as a whole (a "“Material Adverse Effect"”).;
(cg) The capitalization All the outstanding ownership interests of Sun International the Issuers and the Guarantors have been duly and validly authorized and issued and are fully paid and non-assessable; and all the outstanding capital stock, limited liability company interests or partnership interests, as the case may be, of each “significant subsidiary” (as such term is defined in Rule 1-02 of Regulation S-X) of the Parent Guarantor (each a “Significant Subsidiary”) have been duly and validly authorized and issued, are fully paid and non-assessable and (except as otherwise set forth in the Offering Memorandum under Time of Sale Information and the caption "Capitalization" in Prospectus) are owned directly or indirectly by the column "Historical." All of the issued and outstanding shares of capital stock ofParent Guarantor, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun Internationalas applicable, free and clear of any security interestall liens, mortgageencumbrances, pledgeequities or claims other than the liens securing the Credit Agreement;
(h) This Agreement has been duly authorized, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") executed and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges delivered by each of the shares Issuers and the Guarantors;
(i) Each of Sun International's subsidiaries the Issuers and the Guarantors has all necessary corporate, limited liability company or limited partnership power and authority, as appropriate, to execute and deliver this Agreement, and to perform all of its obligations hereunder;
(j) Each of the Issuers and the Guarantors has taken all necessary limited liability company action, limited partnership action or corporate action to authorize the issuance of the Securities and the Guarantees, as applicable, and the execution, delivery and performance of this Agreement and the Indenture;
(k) The Securities have been duly authorized and, when executed by the Issuers and authenticated by the Trustee in accordance with the provisions of the Indenture and when delivered to, and paid for, by the Underwriters in accordance with the terms of this Agreement, will have been duly executed, authenticated, issued and delivered and will constitute valid and legally binding obligations of the Issuers enforceable against them in accordance with the terms of the Indenture, and will be entitled to the benefits of the Indenture, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles;
(l) The Base Indenture, as supplemented by the Fourteenth Supplemental Indenture has been duly authorized by the Issuers and the Guarantors, and when executed and delivered by the Issuers and the Guarantors (assuming the due authorization, execution and delivery thereof by the Trustee and the Collateral Agent), will constitute a valid and legally binding instrument, enforceable against the Issuers and the Guarantors in accordance with its terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting creditors’ rights and to general equity principles; the Indenture meets the requirements for qualification under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees Trust Indenture Act; and the Indenture conform conforms or will conform, as applicable, in all material respects to the descriptions thereof contained in the Offering Memorandum.Time of Sale Information and the Prospectus;
(em) All The documents or sections of documents incorporated by reference into each of the outstanding shares Registration Statement, the Time of capital stock Sale Information and the Prospectus complied, as of Sun International the Time of Sale, in all material respects with all applicable requirements of the Securities Act and the Exchange Act and when read together with the Time of Sale Information and the Prospectus, will not contain 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;
(n) The Guarantees have been duly authorized by the Guarantors and, upon execution of the Indenture by the Guarantors and validly issued when the Notes have been duly executed, authenticated and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained delivered as provided in the Offering Memorandum; each Indenture and paid for as provided herein, will constitute a valid and legally binding obligation of the agreements described Guarantors in the Offering Memorandum to which Sun Internationalaccordance with their terms, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the Guarantors in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and other partylaws of general applicability relating to or affecting creditors’ rights, except as disclosed in the Offering Memorandum.and to general equity principles;
(fo) Neither Sun International nor any None of its subsidiaries is the transactions contemplated by this Agreement (iincluding, without limitation, the use of the proceeds from the sale of the Securities) will violate or result in a violation of its respective charter or by-laws, or (ii) in default in Section 7 of the performance of any obligation, bond, agreement, debenture, noteExchange Act, or any other evidence regulation promulgated thereunder, including, without limitation, Regulations T, U, and X of indebtedness or any indenturethe Board of Governors of the Federal Reserve System;
(p) Prior to the date hereof, mortgagenone of the Issuers, deed of trust or other contract, lease or other instrument to which Sun International the Guarantors or any of its subsidiaries their respective affiliates has taken any action which is a party designed to or by which it has constituted or any of them is bound, which would have reasonably been expected to cause or to which any result in stabilization or manipulation of the property price of Sun International or any security of its subsidiaries is subject except, any such persons in connection with the case offering of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.the Securities;
(gq) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, The issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the SecuritiesSecurities and, to the extent applicable, the compliance by each Issuer the Issuers and each Guarantor the Guarantors with all provisions of each of the provisions hereof Transaction Documents, including those described under the caption “Description of Notes” in the Time of Sale Information and thereof the Prospectus and the consummation of the transactions herein and therein contemplated hereby and thereby will not require any consent, approval, authorization or other order (including the granting 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 the security interest pursuant to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")Security Documents) and will not conflict with or constitute result in a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration ofunder, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust trust, loan agreement, lease, license, franchise agreement, permit or other contract, lease agreement or other instrument to which Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is a party or by which it the Issuers, the Guarantors or any of them their respective subsidiaries is bound, bound or to which any of the property or assets of Sun International the Issuers, the Guarantors or any of its their respective subsidiaries is subject or (iii) subject, nor will such action result in any laws, administrative regulations or rulings or orders violation of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International statute or any order, rule or regulation of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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 body having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valujur
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the The Issuers and Guarantors, the Guarantors jointly and severally, represents severally represent and warrants warrant to, and agrees agree with, you each of the Initial Purchasers that:
(a) As The Preliminary Memorandum as of their respective dates, its date did not contain; the Offering Memorandum at the Time of Sale and at the Closing Date; and the Final Memorandum, and any amendment or supplement thereto does not and will not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that the representations or warranties set forth in this paragraph shall not apply to statements in or omissions from any Memorandum made in reliance upon and in conformity with information furnished in writing to the Issuers by the Initial Purchasers through the Representatives expressly for use therein, as specified in Section 11. The statistical and industry data included in each Memorandum are based on or derived from sources that the Issuers believe to be reliable and accurate.
(b) The Partnership (including its agents and representatives, other than the Initial Purchasers in their capacity as such) has not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication that constitutes an offer to sell or solicitation of an offer to buy the Notes (each such communication by the Partnership or its agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an “Issuer Written Communication”) other than (i) the Preliminary Memorandum, (ii) the Final Memorandum, (iii) the Pricing Supplement, which constitutes part of the Offering Memorandum do Memorandum, and (iv) any electronic road show or other written communications, in each case used in accordance with Section 4(c). Each such Issuer Written Communication, when taken together with the Offering Memorandum, did not, and at the Closing Date (as defined herein) the Offering Memorandum will not, contain an any 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; provided, however, provided that the representations Issuers and warranties contained in this paragraph (a) shall not apply Guarantors make no representation and warranty with respect to any statements in or omissions from the Preliminary Offering Memorandum or the Offering Memorandum (or any supplement or amendment to them) made in each such Issuer Written Communication in reliance upon and in conformity with information relating to any Initial Purchaser furnished to the Issuers Partnership in writing by or on behalf of such Initial Purchaser through Bear, ▇▇▇▇▇▇▇ & Co. Inc. ("Bear, ▇▇▇▇▇▇▇"). The Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph and Section 6 hereof) that the statements set forth in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only information (the "Initial Purchasers' Information") furnished to the Issuers by or on behalf of any Initial Purchaser through Bear, ▇▇▇▇▇▇▇ Representatives 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 PurchasersIssuer Written Communication.
(bc) Each Issuer of the Partnership and Guarantor the Operating Partnership has been duly incorporated formed and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation and has the corporate power and authority to carry on its business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to own, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The capitalization of Sun International is as set forth in the Offering Memorandum limited partnership under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent Delaware Revised Uniform Limited Partnership Act (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"“Delaware LP Act”), Societe de Participation et d'Investissements dans les Casinos ("SPIC") with full partnership power and authority to own or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, lease and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use operate its properties and assets and to conduct its current business in the manner as presently conducted and as described in the Offering any Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"and any amendment or supplement thereto), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance case in all respects with the terms and conditions material respects. Each of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valuthe
Appears in 1 contract
Representations and Warranties of the Issuers and the Guarantors. Each of the Issuers and Guarantors, the Guarantors jointly and severally, severally represents and warrants to, and agrees with, you each of the Underwriters that:
(a) As No order preventing or suspending the use of their respective datesthe Preliminary Prospectus or Final Prospectus has been issued by the Commission, the Offering Memorandum and the Preliminary Offering Memorandum do notProspectus and the Final Prospectus, and at the Closing Date time of filing thereof, complied in all material respects with the Securities Act.
(as defined hereinb) The Disclosure Package, at the Offering Memorandum will notApplicable Time, did not contain an any 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; provided, however, provided that the representations Issuers and warranties contained in this paragraph (a) shall not apply the Guarantors make no representation and warranty with respect to any 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 Underwriter furnished to the Issuers in writing by such Underwriter through the Representative expressly for use therein, as specified in Section 11 hereof.
(c) The Issuers (including their respective agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to, and will not prepare, make, use, authorize, approve or refer to, any “written communication” (as defined in Rule 405 under the Securities Act) (other than the Preliminary Prospectus, the Pricing Term Sheet, the Final Prospectus, any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act and any other document listed on behalf Schedule III) that constitutes an offer to sell or solicitation of an offer to buy any of the Notes (each such Initial Purchaser through Bearcommunication by the Issuers, ▇▇▇▇▇▇▇ & Co. Inc. an “Issuer Free Writing Prospectus”) without the prior consent of the Underwriters; and any such Issuer Free Writing Prospectus the use of which has been previously consented to by the Underwriters is set forth substantially in form and substance as attached hereto on Schedule IV. Each such Issuer Free Writing Prospectus complied in all material respects with the Securities Act, has been or will be ("Bearwithin the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby), ▇▇▇▇▇▇▇"). The and, when taken together with the Preliminary Prospectus accompanying, or delivered prior to delivery of, such Issuer Free Writing Prospectus, did not at the Applicable Time, and when taken together with the Final Prospectus at the Closing Date (as defined below) will not, contain any 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; provided that the Issuers and the Initial Purchasers acknowledge for all purposes under this Agreement (including this paragraph Guarantors make no representation and Section 6 hereof) that the warranty with respect to any statements set forth or omissions made in the last paragraph of the cover page of the Offering Memorandum, the first (including the tables therein), second each such Issuer Free Writing Prospectus in reliance upon and third paragraphs and the fifth and sixth sentence of the fourth paragraph of the section entitled "Plan of Distribution" in the Offering Memorandum constitute the only conformity with information (the "Initial Purchasers' Information") relating to any Underwriter furnished to the Issuers in writing by such Underwriter through the Representative expressly for use in such Issuer Free Writing Prospectus or on behalf any amendment or supplement thereto.
(d) The Registration Statement is an “automatic shelf registration statement” as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such Registration Statement or any Initial Purchaser post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuers. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuers or related to the offering of the Notes has been initiated or threatened by the Commission; as of the effective date of the Registration Statement, the Registration Statement complied in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the “Trust Indenture Act”), and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; and as of the date of the Final Prospectus and any amendment or supplement thereto and as of the Closing Date, the Final Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuers and the Guarantors make no representation and warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuers in writing by such Underwriter through Bear, ▇▇▇▇▇▇▇ the Representative expressly for use in the Preliminary Offering Memorandum Registration Statement and the Final Prospectus and any amendment 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 Purchaserssupplement thereto.
(be) The documents incorporated by reference in the Registration Statement, the Disclosure Package and the Final Prospectus conformed, when such documents were filed with the Commission, in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder, and none of such documents, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, Disclosure Package or Final Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission thereunder.
(f) Each Issuer and Guarantor of the Issuers has been duly incorporated formed or incorporated, as applicable, and is validly existing as a corporation limited partnership or corporation, as applicable, in good standing under the laws of its jurisdiction the State of incorporation and has Delaware. Each of the corporate power and authority Issuers is duly registered or qualified to carry on its do business as it is currently being conducted or is proposed to be conducted (as discussed in the Offering Memorandum) and to owna foreign business organization, lease and operate its properties, and each is duly qualified and is in good standing as a foreign corporation authorized to do business in under the laws of each jurisdiction in which the nature of its business or its ownership or leasing of property requires such qualification, except where the failure to be so qualified could not, singly or in the aggregate, have a material adverse effect on the properties, results of operations, financial condition or prospects of Sun International and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) The capitalization of Sun International is as set forth in the Offering Memorandum under the caption "Capitalization" in the column "Historical." All of the issued and outstanding shares of capital stock of, or other ownership interests in, each of the Guarantors are duly authorized and validly issued and fully paid and nonassessable, and owned by Sun International, free and clear of any security interest, mortgage, pledge, claim, lien, encumbrance or adverse interest of any nature (each, a "Lien") and of any restrictions on transfer, voting trusts or other defects of title whatsoever except for the pledges of the shares of Sun International's subsidiaries under the Amended and Restated Revolving Credit Agreement dated as of November 1, 1996, as amended, among Sun Bahamas, Sun International, certain of the Company's subsidiaries and certain financial institutions and The Bank of Nova Scotia, as administrative and collateral agent (the "Existing Credit Agreement"). There are no outstanding subscriptions, rights, warrants, options, calls, convertible or exchangeable securities, commitments of sale or Liens related to or entitling any person to purchase or otherwise to acquire any shares of the capital stock of, or other ownership interest in, Sun International or any Guarantor, except as disclosed in the Offering Memorandum.
(d) The Securities, the Guarantees and the Indenture conform in all material respects to the descriptions thereof contained in the Offering Memorandum.
(e) All the outstanding shares of capital stock of Sun International have been duly authorized and validly issued and are fully paid, non-assessable and not subject to any preemptive or similar rights; the management agreement between Trading Cove Associates ("TCA") and the Mohegan Tribe conforms in all material respects to the description thereof contained in the Offering Memorandum; each of the agreements described in the Offering Memorandum to which Sun International, any of its subsidiaries, Sun Resorts Limited ("SRL"), Societe de Participation et d'Investissements dans les Casinos ("SPIC") or TCA is a party conforms in all material respects to the description thereof contained in the Offering Memorandum, and Sun International believes that each such agreement is effective and enforceable against the other party, except as disclosed in the Offering Memorandum.
(f) Neither Sun International nor any of its subsidiaries is (i) in violation of its respective charter or by-laws, or (ii) in default in the performance of any obligation, bond, agreement, debenture, note, or any other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject except, in the case of clause (ii), for such defaults that could not reasonably be expected to have a Material Adverse Effect.
(g) Each Issuer and Guarantor has all the requisite corporate power to execute, deliver and perform its obligations under this Agreement and to authorize, issue and sell the Securities and Guarantees being sold by it. The execution, delivery and performance of this Agreement, the registration rights agreement of even date herewith relating to the Securities (the "Registration Rights Agreement") and the Indenture, the issuance and sale of the Securities, compliance by each Issuer and each Guarantor with all the provisions hereof and thereof and the consummation of the transactions contemplated hereby and thereby will not require any consent, approval, authorization or other order of any court, regulatory body, administrative agency or other governmental body (except those already received and such as may be required under state securities laws or Blue Sky laws and with respect to the Registration Rights Agreement, the Act and the regulations of the National Association of Securities Dealers, Inc. (the "NASD")) and will not conflict with or constitute a breach or violation of (i) any of the charters or by-laws of Sun International or any of its subsidiaries, (ii) any of the terms or provisions of, or constitute a default under or cause an acceleration of, any obligation, bond, agreement or condition contained in any bond, note, debenture or other evidence of indebtedness or any indenture, mortgage, deed of trust or other contract, lease or other instrument to which Sun International or any of its subsidiaries is a party or by which it or any of them is bound, or to which any of the property of Sun International or any of its subsidiaries is subject or (iii) any laws, administrative regulations or rulings or orders of any court or governmental agency, body or official having jurisdiction over Sun International, any of its subsidiaries or their respective properties, except in the case of clauses (ii) and (iii) for such conflicts, breaches or violations that could not reasonably be expected to have a Material Adverse Effect.
(h) No action has been taken and no statute, rule, regulation or order has been enacted, adopted or issued by any governmental body, agency or official which prevents the issuance of the Securities, prevents or suspends the use of the Offering Memorandum or the Preliminary Offering Memorandum or suspends the sale of the Securities in any jurisdiction referred to in Section 3(a) hereof; no injunction, restraining order or order of any nature by any foreign, Federal or state court of competent jurisdiction has been issued with respect to Sun International or any of its subsidiaries which would prevent or suspend the issuance or sale of the Securities or the use of the Offering Memorandum or the Preliminary Offering Memorandum in any jurisdiction referred to in Section 3(a) hereof; and no action, suit or proceeding before any court or arbitrator or any governmental body, agency or official, domestic or foreign, is pending against or, to the best knowledge of Sun International, threatened against, Sun International or any of its subsidiaries which, if adversely determined, could interfere with or adversely affect the issuance of the Securities or in any manner draw into question the validity of this Agreement, the Securities, the Indenture or the Registration Rights Agreement.
(i) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, pending against or, to the knowledge of Sun International, affecting Sun International or any of its subsidiaries or any of their respective assets or properties, which could have a Material Adverse Effect, or which could materially and adversely affect the performance by either Issuer or any Guarantor of its obligations pursuant to this Agreement or the transactions contemplated hereby and, to the best knowledge of Sun International, except as disclosed in the Offering Memorandum, no such action, suit or proceeding is threatened or contemplated.
(j) Except as disclosed in the Offering Memorandum, (i) neither Sun International nor any of its subsidiaries is in violation of any federal, state, local or foreign laws or regulations relating to pollution or protection of human health or the environment (collectively, the "Environmental Laws"); and (ii) (A) neither Sun International nor any of its subsidiaries has received any communication (written or oral), whether from a governmental authority or otherwise, alleging any such violation or noncompliance, and there are no circumstances, either past or present or that are reasonably foreseeable, that could reasonably be expected to lead to such violation in the future, (B) there is no pending or, to the best of Sun International's knowledge, threatened claim, action, investigation or notice (written or oral) by any person or entity alleging potential liability for investigatory, cleanup, or governmental responses costs, or natural resources or property damages, or personal injuries, attorneys' fees or penalties, relating to (x) the presence in or release into the environment of any emissions, discharges or releases of toxic or hazardous substances, materials or wastes or petroleum and petroleum products at any location owned, leased or operated by Sun International or any of its subsidiaries, now or in the past, or (y) circumstances forming the basis of any violation or alleged violation of any Environmental Law (collectively, "Environmental Claims") and (C) to the best knowledge of Sun International, there are no past or present actions, activities, circumstances, conditions, events or incidents that could form the basis of any Environmental Claim against Sun International or any of its subsidiaries, now or in the past, or against any person or entity whose liability for any Environmental Claim Sun International or any of its subsidiaries has retained or assumed either contractually or by operation of law, in each of clauses (i) and (ii) that could reasonably be expected to have a Material Adverse Effect.
(k) Except as disclosed in the Offering Memorandum, (i) each of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC 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, France, Mauritius and the Comoros required to own, lease, license and use its properties and assets and to conduct its current business in the manner described in the Offering Memorandum (it being understood that Sun International only has Interim Casino Authorization in connection with its gaming operations in the State of New Jersey) (each, an "Authorization"), except to the extent that the failure to possess such Authorizations could not reasonably be expected to have a Material Adverse Effect; (ii) all such Authorizations are valid and in full force and effect, except as could not reasonably be expected to have a Material Adverse Effect; (iii) each of Sun International, its subsidiaries, each of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, TCA, SRL and SPIC is in compliance in all respects with the terms and conditions of all such Authorizations and with the rules and regulations of the regulatory authorities and governing bodies having jurisdiction with respect thereto, except as could not reasonably be expected to have a Material Adverse Effect, and (iv) none of Sun International, its subsidiaries, the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC nor TCA has received any notice of proceedings relating to the revocation or modification of any such Authorization and no such Authorization contains any restrictions except as could not reasonably be expected to have a Material Adverse Effect. Except as disclosed in the Offering Memorandum, none of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, TCA nor SPIC has any reason to believe that (i) any Regulatory Authority (as defined below) is considering modifying, limiting, conditioning, suspending, revoking or not renewing any such Authorizations of Sun International, any of its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC or TCA or (ii) that the National Indian Gaming Commission, the Bureau of Indian Affairs, or regulatory authorities in The Bahamas, Connecticut, New Jersey, France, Mauritius or the Comoros (collectively the "Regulatory Authorities"), or any other governmental agencies are investigating Sun International, any of its subsidiaries, SRL, SPIC or TCA or related parties (other than normal overseeing reviews of the Regulatory Authorities incident to the gaming, hotel or casino activities of Sun International, its subsidiaries, any of the persons listed as executive officers under the caption "Management" in the Offering Memorandum, SRL, SPIC and TCA), which investigation could reasonably be expected to have a Material Adverse Effect.
(l) Except as disclosed in the Offering Memorandum or as could not reasonably be expected to have a Material Adverse Effect, Sun International and each of its subsidiaries has good and valid title, free and clear of all Liens except Liens for taxes not yet due and payable and except for the pledges under the Existing Credit Agreements, to all property and assets described in the Offering Memorandum as being owned by it and such properties and assets are in the condition and suitable for use as so described. All leases to which Sun International or any of its subsidiaries is a party are valid and binding and no default has occurred or is continuing thereunder, which could reasonably be expected to have a Material Adverse Effect.
(m) Sun International, SINA and each Guarantor maintain insurance at least in such amounts and covering at least such risks as is adequate for the conduct of their respective businesses and the valu
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