Exhibit 4.4(a)


 


EXECUTION
COPY


 


KERZNER INTERNATIONAL LIMITED


 


6 3⁄4% SENIOR SUBORDINATED NOTES
DUE 2015


 


PURCHASE
AGREEMENT


 


September 15, 2005


 


 


DEUTSCHE BANK SECURITIES INC.

J.P. MORGAN SECURITIES INC.

BEAR, STEARNS & CO. INC.


GOLDMAN, SACHS & CO.


MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED


WACHOVIA CAPITAL MARKETS, LLC


WELLS FARGO SECURITIES, LLC 

c/o Deutsche Bank Securities Inc.

60 Wall Street

New York, New York 10005


 


Ladies and Gentlemen:


 


Kerzner International Limited, an
international business company organized under the laws of the Commonwealth of
The Bahamas (the “Company”), proposes, subject to the terms and conditions
stated herein, to issue and sell to you (the “Initial Purchasers”) $400,000,000
aggregate principal amount of its 6 3⁄4% Senior Subordinated Notes due 2015 (the “Securities”),
to be issued pursuant to an indenture dated as of the Closing Date (the “Indenture”)
between the Company, the Guarantors listed on Schedule II hereto (the “Guarantors”)
and The Bank of New York Trust Company, N.A., as trustee (the “Trustee”).  The Securities are to be guaranteed (the “Guarantees”)
by the Guarantors.  The Guarantees shall
be in the form contained in the Indenture. 
Unless the context requires otherwise, all references herein to the
Securities shall be deemed to include the Guarantees.


 


The Securities will be offered and sold to
the Initial Purchasers without being registered under the Securities Act of
1933, as amended (the “Act”), in reliance on an exemption therefrom.  The Company has prepared a preliminary
offering memorandum, dated September 14, 2005 (such preliminary offering
memorandum together with any document incorporated by reference therein being
hereinafter referred to as the “Preliminary Offering Memorandum”), and an
offering memorandum, dated September 15, 2005 (such offering memorandum
together with any document incorporated by reference therein, in the form first
furnished to the Initial Purchasers for use in connection with the offering of
Securities, being hereinafter referred to as the “Offering Memorandum”),
setting forth information regarding the Company.  The Company hereby confirms that it has
authorized the use of the Preliminary Offering Memorandum and the


 





















 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


The capitalization of the Company as of June 30,
2005 is as set forth in the Offering Memorandum under the caption “Capitalization”
in the column “Actual.”  All of the
issued and outstanding shares of capital stock of, or other ownership interests
in, each of the subsidiaries of the Company have been duly authorized and
validly issued and fully paid and non-assessable, and are owned by the Company,
free and clear of any security interest, mortgage, pledge, claim, lien,
encumbrance or adverse interest of any nature (each, a “Lien”) and of any
restrictions on transfer, voting trusts or other defects of title whatsoever,
except for the pledges of the shares of the Company’s subsidiaries under the
Fifth Amended and Restated Credit Agreement dated as of July 7, 2004, as
amended, among the Company, Kerzner International North America, Inc. (“KINA”),
Kerzner International Bahamas Limited, certain of the Company’s subsidiaries,
certain financial institutions, and JPMorgan Chase Bank, N.A., as
administrative agent (as such agreement may be amended, supplemented, restated
or replaced, the “Existing Credit Agreement”). 
There are no outstanding subscriptions, rights, warrants, options,
calls, convertible or exchangeable securities, commitments of sale or Liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, the Company or
any Guarantor, except as disclosed in the Offering Memorandum.


 


(c)           All
the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid, non-assessable and not
subject to any preemptive or similar rights; the relinquishment agreement
between Trading Cove Associates (“TCA”) and the Mohegan Tribe conforms in all
material respects to the description thereof contained in the Offering
Memorandum; each of the agreements described in the Offering Memorandum to
which the Company, any of its subsidiaries, Kerzner International Management
Limited (“KIML”) or TCA is a party conforms in all material respects to the
description thereof contained in the Offering Memorandum, and the Company
believes that each such agreement is effective and enforceable against the
other party, except as disclosed in the Offering Memorandum.


 


(d)           Neither
the Company nor any of its subsidiaries is (i) in violation of its
respective charter or by-laws, (ii) in breach or violation of any statute,
judgment, decree, order, rule or regulation applicable to any of them or
any of their respective properties or assets, or (iii) in default in the
performance of any obligation, bond, agreement, debenture, note, or any other
evidence of indebtedness or any indenture, mortgage, deed of trust or other
contract, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them is bound, or to which any
of the property of the Company or any of its subsidiaries


 


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is subject except, in the case of clauses (ii) and (iii), for such
defaults that could not reasonably be expected to have a Material Adverse
Effect.


 


(e)           The
Company has all the requisite corporate power to execute, deliver and perform
its obligations under this Agreement, the Registration Rights Agreement and the
Indenture and issue and sell the Securities being sold by this Agreement, and
each of the Guarantors will have, as of the Closing Date, all the requisite
corporate power to execute, deliver and perform its obligations under the
Registration Rights Agreement and the Indenture and issue the Guarantees.  The execution, delivery and performance of
this Agreement and the Indenture, the issuance and sale of the Securities,
compliance by each of the Company and the Guarantors with all the provisions
hereof and thereof, as applicable, and the consummation of the transactions
contemplated hereby and thereby will not require any consent, approval,
authorization or other order of any court, regulatory body, administrative
agency or other governmental body (except those already received and such as
may be required under state securities laws or Blue Sky laws and with respect
to the Registration Rights Agreement, the Act and the regulations of the
National Association of Securities Dealers, Inc. (the “NASD”)) and will
not conflict with or constitute a breach or violation of (i) any of the
charters or by-laws of the Company or any of its subsidiaries, (ii) any of
the terms or provisions of, or constitute a default under or cause an
acceleration of, any obligation, bond, agreement or condition contained in any
bond, note, debenture or other evidence of indebtedness or any indenture,
mortgage, deed of trust or other contract, lease or other instrument to which
the Company or any of its subsidiaries is a party or by which it or any of them
is bound, or to which any of the property of the Company or any of its
subsidiaries is subject or (iii) any laws, administrative regulations or
rulings or orders of any court or governmental agency, body or official having
jurisdiction over the Company, any of its subsidiaries or their respective
properties, except in the case of clauses (ii) and (iii) for such
conflicts, breaches or violations that could not reasonably be expected to have
a Material Adverse Effect.


 


(f)            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 4(a) hereof;
no injunction, restraining order or order of any nature by any foreign, federal
or state court of competent jurisdiction has been issued with respect to the
Company or any of its subsidiaries which would prevent or suspend the issuance
or sale of the Securities or the use of the Offering Memorandum or the
Preliminary Offering Memorandum in any jurisdiction referred to in Section 4(a) hereof;
and no action, suit or proceeding before any court or arbitrator or any
governmental body, agency or official, domestic or foreign, is pending against
or, to the best knowledge of the Company, threatened against, the Company or
any of its subsidiaries which, if adversely determined, could interfere with or
adversely affect the issuance of the Securities or in any manner draw into
question the validity of this Agreement, the Securities, the Indenture or the
Registration Rights Agreement.


 


(g)           There
is no action, suit or proceeding before or by any court or governmental agency
or body, domestic or foreign, pending against or, to the knowledge of the
Company, affecting the Company or any of its subsidiaries or any of their
respective assets or


 


4





















 


properties, which could have a Material Adverse Effect, or which could
materially and adversely affect the performance by the Company of its
obligations pursuant to this Agreement or the transactions contemplated hereby
and, to the best knowledge of the Company, except as disclosed in the Offering
Memorandum, no such action, suit or proceeding is threatened or contemplated.


 


(h)           No
labor disturbance by the employees of the Company or any of its subsidiaries
exists or, to the best of the Company’s knowledge, is imminent and the Company
is not aware of any existing or imminent labor disturbances by the employees of
any of its or any subsidiary’s principal suppliers, manufacturers’, customers
or contractors, which, in either case, could (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.


 


(i)            Except
as disclosed in the Offering Memorandum (i) neither the Company nor any of
its subsidiaries is in violation of any federal, state, local or foreign laws
or regulations relating to pollution or protection of human health or the
environment (collectively, the “Environmental Laws”); and (ii) (A) neither
the Company nor any of its subsidiaries has received any communication (written
or oral), whether from a governmental authority or otherwise, alleging any such
violation or noncompliance, and there are no circumstances, either past or
present or that are reasonably foreseeable, that could reasonably be expected
to lead to such violation in the future, (B) there is no pending or, to
the best of the Company’s knowledge, threatened claim, action, investigation or
notice (written or oral) by any person or entity alleging potential liability
for investigatory, cleanup, or governmental responses costs, or natural
resources or property damages, or personal injuries, attorneys’ fees or
penalties, relating to (x) the presence in or release into the environment
of any emissions, discharges or releases of toxic or hazardous substances,
materials or wastes or petroleum and petroleum products at any location owned,
leased or operated by the Company or any of its subsidiaries, now or in the
past, or (y) circumstances forming the basis of any violation or alleged
violation of any Environmental Law (collectively, “Environmental Claims”) and (C) to
the best knowledge of the Company, there are no past or present actions,
activities, circumstances, conditions, events or incidents that could form the
basis of any Environmental Claim against the Company or any of its
subsidiaries, now or in the past, or against any person or entity whose
liability for any Environmental Claim the Company or any of its subsidiaries
has retained or assumed either contractually or by operation of law, in each of
clauses (i) and (ii) that could reasonably be expected to have a
Material Adverse Effect.


 


(j)            Except
as disclosed in the Offering Memorandum (i) each of the Company, its
subsidiaries, its directors and executive officers named in Item 6 in its
Annual Report on Form 20-F for the fiscal year ended December 31,
2004 (the “executive officers”), TCA and KIML has all certificates, consents,
exemptions, orders, permits, licenses, authorizations or other approvals or
rights of and from, and has made all declarations and filings with, all
foreign, federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, including,
without limitation, all such authorizations with respect to engaging in gaming,
hotel and resort operations, as applicable, in The Bahamas, Connecticut, New
Jersey, Mauritius, the Maldives, Mexico, United Arab Emirates, South Africa and
United Kingdom required to own, lease, license and use its properties


 


5





















 


and assets and to conduct its current business in the manner described
in the Offering Memorandum (each, an “Authorization”), except to the extent
that the failure to possess such Authorizations could not reasonably be
expected to have a Material Adverse Effect; (ii) all such Authorizations
are valid and in full force and effect, except as could not reasonably be
expected to have a Material Adverse Effect; (iii) each of the Company, its
subsidiaries, each of its executive officers, TCA and KIML is in compliance in
all respects with the terms and conditions of all such Authorizations and with
the rules and regulations of the regulatory authorities and governing
bodies having jurisdiction with respect thereto, except as could not reasonably
be expected to have a Material Adverse Effect, and (iv) none of the
Company, its subsidiaries, its executive officers, KIML 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 the Company, any of its subsidiaries, any of its executive
officers, KIML nor TCA has any reason to believe that (i) any Regulatory
Authority (as defined below) is considering modifying, limiting, conditioning,
suspending, revoking or not renewing any such Authorizations of the Company,
any of its subsidiaries, any of its executive officers, KIML or TCA or (ii) that
the National Indian Gaming Commission, the Bureau of Indian Affairs, or
regulatory authorities in The Bahamas, Connecticut, New Jersey, Mauritius, the
Maldives, Mexico, United Arab Emirates, South Africa and United Kingdom
(collectively the “Regulatory Authorities”), or any other governmental agencies
are investigating the Company, any of its subsidiaries, KIML or TCA or related
parties (other than normal overseeing reviews of the Regulatory Authorities
incident to the gaming, hotel or casino activities of the Company, its
subsidiaries, any of its executive officers, KIML and TCA), which investigation
could reasonably be expected to have a Material Adverse Effect.


 


(k)           Except
as disclosed in the Offering Memorandum or as could not reasonably be expected
to have a Material Adverse Effect, the Company and each of its subsidiaries has
good and valid title, free and clear of all Liens except Liens for taxes not
yet due and payable and except for the pledges under the Existing Credit
Agreement, to all property and assets described in the 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 the Company or any of its subsidiaries is a party are valid and
binding and no default has occurred or is continuing thereunder, which could
reasonably be expected to have a Material Adverse Effect.


 


(l)            The
Securities, the Indenture and the Registration Rights Agreement conform or will
conform in all material respects to description thereof contained in the
Offering Memorandum.


 


(m)          Each
of the Company and the Guarantors maintains or is covered by insurance at least
in such amounts and covering at least such risks as is adequate for the conduct
of its businesses and the value of its properties.


 


(n)           Deloitte &
Touche LLP is an independent registered public accounting firm with respect to
the Company within the meaning of the Securities Act and the applicable rules and
regulations thereunder adopted by the Public Company Accounting Oversight Board
and Commission.


 


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(o)           The
financial statements of the Company or any of its subsidiaries, together with
the related schedules and notes in the Offering Memorandum, comply as to form
in all material respects with the requirements of the Securities Act and
present fairly the consolidated financial position, results of operations and
changes in financial position of the Company and its subsidiaries at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in accordance
with generally accepted accounting principles in the United States of America (“GAAP”)
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set forth
in the Offering Memorandum are accurately presented and prepared on a basis
consistent with such financial statements and the books and records of the
Company.


 


(p)           Except
as described in the Offering Memorandum, subsequent to the respective dates as
of which information is given in the Offering Memorandum and up to the Closing
Date (i) neither the Company nor any of its subsidiaries has incurred any
liabilities or obligations, direct or contingent, which are material to the
Company and its subsidiaries, singly or in the aggregate, nor entered into any
material transaction not in the ordinary course of business, (ii) there
has been no decision or judgment in the nature of litigation, administrative or
regulatory proceedings or arbitration that could reasonably be expected to have
a Material Adverse Effect and (iii) there has not been any material
adverse change or any development which could involve, singly or in the
aggregate, a material adverse change, in the properties, results of operations,
financial condition or prospects of the Company and its subsidiaries, taken as
a whole (any of the items set forth in clauses (i), (ii) or (iii) of
this paragraph (p), a “Material Adverse Change”).


 


(q)           There
are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of indebtedness by
the Company to or for the benefit of any of the executive officers or directors
of the Company or any of their respective family members, except as previously
disclosed in writing to you prior to the date of this Agreement.


 


(r)            Neither
the Company nor any of its subsidiaries is (i) an “investment company” or
a company “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended (the “1940 Act”) or (ii) a “holding
company” or a “subsidiary company” of a holding company, or an “affiliate”
thereof within the meaning of the Public Utility Holding Company Act of 1935,
as amended.


 


(s)           No
authorization, approval, consent or order of, or filing with, any court or
governmental body, agency or official, including the Regulatory Authorities, is
necessary in connection with the transactions contemplated by this Agreement
except such as may be required by the state securities or Blue Sky laws or
regulations and, with respect to the Registration Rights Agreement, the Act and
the regulations of the NASD; neither the Company nor any of its affiliates is
presently doing business with the government of Cuba or with any person or
affiliate located in Cuba; each of this Agreement, the Offering Memorandum, the
Registration Rights Agreement and the Indenture has been or will be presented
to the Regulatory Authorities to the extent required by law, and such documents
and the transactions


 


7





















 


contemplated hereby or thereby have been or will be prior to the
Closing Date approved by or on behalf of the Regulatory Authorities to the
extent required by law, and such approvals have not been revoked, modified or
rescinded.


 


(t)            The
Company and each of its subsidiaries maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.


 


(u)           All
material Tax (as defined below) returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed and all such
returns are true, complete and correct in all material respects.  All material Taxes that are due or claimed to
be due from the Company and its subsidiaries have been paid other than those (i) currently
payable without penalty or interest or (ii) being contested in good faith
and by adequate proceedings and, in either case, for which adequate reserves
have been established on the books and records of the Company and its
consolidated subsidiaries in accordance with GAAP.  The Company and its subsidiaries are not
parties to any material pending action, proceeding, inquiry or investigation by
any governmental authority for the assessment or collection of Taxes, nor does
the Company have any knowledge of any such proposed or threatened action,
proceeding, inquiry, or investigation. 
For purposes of this Agreement, the terms “Tax” and “Taxes” shall mean
all federal, state, local and foreign taxes, and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additional to tax, or penalties applicable thereto.


 


(v)           None
of the Company nor any agent acting on its behalf has taken or will take any
action that is reasonably likely to cause the issuance or sale of the
Securities to violate Regulation T, U or X of the Board of Governors of the
Federal Reserve System, in each case as in effect on the Closing Date.


 


(w)          All
of the Company’s subsidiaries that are not Guarantors when considered together
as if one subsidiary would not constitute a “significant subsidiary” as such
term is defined in or by Regulation S-X under the Act.


 


(x)            The
Company has not taken, directly or indirectly, any action designed to cause or
to result in, or that has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities.


 


(y)           There
are no contracts or other documents (including, without limitation, any voting
agreement), which are required to be described in the Offering Memorandum or
filed as exhibits to the Offering Memorandum by the Securities Act, the
Exchange Act or the Rules and Regulations and which have not been so
described or filed.


 


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(z)            No
relationship, direct or indirect, exists between or among any of the Company or
any affiliate of the Company, on the one hand, and any director, officer,
shareholder, customer or supplier of any of them, on the other hand, which is
required by the Securities Act or by the Rules and Regulations to be
described in the Offering Memorandum which is not so described or is not
described as required.


 


(aa)         Neither
the Company, any of its subsidiaries nor, to the Company’s knowledge, any of
its employees or agents has at any time during the last five years (i) made
any unlawful contribution to any candidate for foreign office, or failed to
disclose any contribution in violation of applicable law or (ii) made any
payment to any federal, state or foreign governmental officer or official, or
other person charged with similar public or quasi-public duties, other than
payments required or not prohibited by the applicable law.


 


(bb)         The
Securities to be issued and sold hereunder have been duly and validly authorized
by the Company and, as of the Closing Date, the Guarantees will have been duly
and validly authorized by the Guarantors, and the Securities and the
Guarantees, when they are authenticated by the Trustee and issued, sold and
delivered in accordance with this Agreement and the Indenture against payment
therefor as provided by this Agreement, will have been duly and validly
executed, authenticated, issued and delivered and will constitute valid and
binding obligations of the Company and the Guarantors, respectively,
enforceable against the Company and the Guarantors, respectively, in accordance
with their terms and entitled to the benefits provided by the Indenture, except
to the extent that enforcement thereof may be limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights generally and (ii) general
principles of equity.


 


(cc)         This
Agreement has been duly and validly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company,
enforceable against it in accordance with its terms, except (i) to the
extent that enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights generally and (B) general
principles of equity and (ii) as rights to indemnity and contribution
hereunder may be limited by applicable law.


 


(dd)         The
Registration Rights Agreement has been duly and validly authorized by the
Company and, as of the Closing Date, will have been duly and validly authorized
by the Guarantors, and, when executed and delivered by the Company and the
Guarantors, will constitute a valid and binding obligation of the Company and
the Guarantors, enforceable against each of them in accordance with its terms,
except (i) to the extent that enforcement thereof may be limited by (A) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors’ rights generally and (B) general
principles of equity and (ii) as rights to indemnity and contribution
thereunder may be limited by applicable law.


 


(ee)         The
Indenture has been duly and validly authorized by the Company and, as of the Closing
Date, will have been duly and validly authorized by the Guarantors, and when
executed and delivered by the Company, the Guarantors and the Trustee,


 


9





















 


will constitute a valid and binding obligation of the Company and the
Guarantors, enforceable against the Company and the Guarantors in accordance
with its terms, except to the extent that enforcement thereof may be limited by
(A) bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally and (B) general
principles of equity.  On the Closing
Date, the Indenture will conform to the requirements of the Trust Indenture Act
of 1939, as amended (the “TIA”) applicable to an indenture that is required to
be qualified by the TIA.


 


(ff)           When
the Securities are issued and delivered pursuant to this Agreement, such
Securities will not be of the same class (within the meaning of Rule 144A)
as securities of the Company or any of its subsidiaries which are listed on a
national securities exchange registered under Section 6 of the Exchange
Act or quoted in a U.S. automated inter-dealer quotation system.


 


(gg)         Neither
the Company nor any of its subsidiaries or any affiliate of any of them (as defined
in Rule 501(b) under the Act) has, directly or through any agent,
sold, offered for sale, solicited offers to buy or otherwise negotiated in
respect of, any security (as defined in the Act) which is or will be integrated
with the sale of the Securities in a manner that would require the registration
of the Securities under the Act; provided, however, that the Company makes no
representations or warranties as to the activities of the Initial Purchasers.


 


(hh)         Neither
the Company nor or any of its subsidiaries or any person acting on their behalf
has (i) engaged, in connection with the offering of the Securities, in any
form of general solicitation or general advertising (as those terms are used
within the meaning of Regulation D under the Act) or (ii) solicited offers
for, or offered or sold, such Securities by means of any form of general
solicitation or general advertising (as those terms are used in Regulation D
under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act; provided, however, that the Company makes
no representations or warranties as to the activities of the Initial
Purchasers.


 


(ii)           Neither
the Company nor any of its subsidiaries or any affiliate of any of them (as
defined in Rule 501(b) under the Act) or any person acting on its or
their behalf (other than the Initial Purchasers) has engaged in any directed
selling efforts (as that term is defined in Regulation S under the Act) with
respect to the Securities; the Company, its subsidiaries and their respective
affiliates (as defined in Rule 501(b)) and any person acting on its or
their behalf (other than the Initial Purchasers) have complied with the
offering restrictions requirement of Regulation S under the Act.


 


(jj)           There
is and has been no material failure on the part of the Company or any of the
Company’s directors or officers, in their capacities as such, to comply with
any provision of the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated in connection therewith applicable to the Company or
any of its subsidiaries.


 


(kk)         The
Company acknowledges and agrees that (i) the purchase and sale of the
Securities pursuant to this Agreement is an arm’s-length commercial transaction
between the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other, (ii) in connection therewith and with the
process leading to such transaction each Initial


 


10





















 


Purchaser is acting solely as a principal and not the agent or
fiduciary of the Company or any Guarantor, (iii) none of the Initial
Purchasers has assumed an advisory or fiduciary responsibility in favor of the
Company or any Guarantor with respect to the offering contemplated hereby or
the process leading thereto (irrespective of whether such Initial Purchaser has
advised or is currently advising the Company or any Guarantor on other matters)
or any other obligation to the Company or any Guarantor except the obligations
expressly set forth in this Agreement and (iv) each of the Company and the
Guarantors has consulted its own legal and financial advisors to the extent it
deemed appropriate.  Each of the Company
and the Guarantors agrees that it will not claim that any Initial Purchaser has
rendered advisory services of any nature or respect, or owes a fiduciary or
similar duty to the Company or any Guarantor, in connection with such
transaction or the process leading thereto.


 


(ll)           Each
certificate signed by any officer of the Company or any of its subsidiaries and
delivered to the Initial Purchasers or counsel for the Initial Purchasers in
connection herewith shall be deemed to be a representation and warranty by the
Company or such subsidiary to the Initial Purchasers as to the matters covered
thereby.


 


2.             Purchase,
Sale And Delivery Of The Securities. 
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, (i) the Company hereby agrees to issue and sell the Securities to
the several Initial Purchasers, and (ii) each Initial Purchaser hereby
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of 98.5% of the principal amount thereof (the “Purchase Price”), the
respective principal amount of Securities set forth in Schedule I hereto
opposite the name of such Initial Purchaser, plus accrued interest, if any,
from September 22, 2005 to the Closing Date.


 


(b)           Delivery
of and payment of the Purchase Price for the Securities shall be made in the
New York office of Skadden, Arps, Slate, Meagher & Flom LLP at Four
Times Square, New York, NY 10036-6522, or at such other location as may be
mutually acceptable.  Such delivery and
payment shall be made at 10:00 a.m., New York time, on September 22,
2005, or at such other time as shall be agreed upon by you and the
Company.  The time and date of such
delivery and payment are herein called the “Closing Date.”  Delivery of the Securities shall be made to
you for your account against payment of the purchase price for the Securities
by wire transfer of immediately available funds to an account or accounts to be
designated by the Company at least one business day prior to the Closing Date.


 


The Securities shall be registered in such
name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Closing Date.  The Company will permit you to examine and
package such Securities for delivery at least one full business day prior to
the Closing Date.


 


3.             Representation
and Warranties Of The Initial Purchasers.  The Initial Purchasers have advised the
Company that the Initial Purchasers propose to offer the Securities for resale
upon the terms and conditions set forth in this Agreement and as may be set forth
in the Offering Memorandum.  Each of the
Initial Purchasers hereby, severally, and not jointly, represents and warrants
to, and agrees with, the Company that it (i) has not and will not solicit


 


11





















 


offers for, or offer or sell, such Securities by means of any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act, and has not engaged and will
not engage in any directed selling efforts in connection with the Securities
and has complied and will comply with the offering restrictions requirement of
Regulation S, and (ii) will solicit offers for such Securities pursuant to
Rule 144A, Regulation S or resales not involving a public offering, as
applicable, only from, and will offer, sell or deliver such Securities, as part
of its distribution thereof, only to, respectively, (A) in the case of
offers inside the United States, persons in the United States whom it
reasonably believes to be Qualified Institutional Buyers within the meaning of Rule 144A
or, if any such person is buying for one or more institutional accounts for
which such person is acting as fiduciary or agent, only when such person has
represented to the Initial Purchasers that each such account is a Qualified
Institutional Buyer, to whom notice has been given that such sale or delivery
is being made in reliance on Rule 144A, and, in each case, in transactions
under Rule 144A, and (B) in the case of offers outside the United
States, to persons other than U.S. persons (“non-U.S. purchasers,” which term
shall include dealers or other professional fiduciaries in the United States
acting on a discretionary basis for non-U.S. beneficial owners (other than an
estate or trust)); provided, however, that, in the case of this clause (B), in
purchasing such Notes such persons are deemed to have represented and agreed as
provided under the caption “Notice to Investors” contained or to be contained
in the Offering Memorandum.


 


Each Initial Purchaser severally agrees that,
at or promptly after confirmation of sale of the Securities, other than a sale
pursuant to Rule 144A, such Initial Purchaser will have sent to each
distributor, dealer or person receiving a selling concession, fee or other
remuneration that purchases the Securities from it during the restricted period
a confirmation or notice to substantially the following effect:


 


“The Securities covered hereby have not been
registered under the U.S. Securities Act of 1933 (the “Securities Act”) and may
not be offered or sold within the United States or to, or for the account or
benefit of, U.S. persons (i) as part of their distribution at any time or (ii) otherwise
until 40 days after the later of the date of the commencement of the offering
and the closing date, except in either case in accordance with Regulation S (or
Rule 144A if available) under the Securities Act.  Terms used above have the meanings given to
them by Regulation S.”


 


4.             Covenants
Of The Company.  The Company
covenants and agrees with the Initial Purchasers as follows:


 


(a)           Each
of the Company and the Guarantors will cooperate with the Initial Purchasers in
endeavoring to qualify the Securities for sale under the securities laws of
such jurisdictions as the Initial Purchasers may reasonably have designated in
writing and will make such applications, file such documents, and furnish such
information as may be reasonably required for that purpose, provided that
neither the Company nor any of the Guarantors shall be required to qualify as a
foreign corporation or to file a general consent to service of process in


 


12





















 


any jurisdiction where it is not now so qualified or required to file
such a consent.  The Company and the
Guarantors will, from time to time, prepare and file such statements, reports,
and other documents, as are or may be required to continue such qualifications
in effect for so long a period as the Initial Purchasers may reasonably request
for distribution of the Securities.


 


(b)           At
any time prior to the completion of the distribution of the Securities by the
Initial Purchasers to purchasers who are not affiliates thereof, the Company
will give the Initial Purchasers notice of its intention to prepare any
supplement or amendment to the Offering Memorandum, will furnish the Initial
Purchasers with copies of any such amendment, supplement or other document a
reasonable amount of time prior to such proposed filing or use, and will not
use any such amendment or supplement to which the Initial Purchasers or counsel
for the Initial Purchasers shall reasonably object within five days of being
furnished a copy thereof.


 


(c)           The
Company has furnished or will furnish to the Initial Purchasers such number of
copies of the Preliminary Offering Memorandum and the Offering Memorandum (and
any amendment or supplement thereto) as the Initial Purchasers may reasonably
request.


 


(d)           At
any time prior to the completion of the distribution of the Securities by the
Initial Purchasers to purchasers who are not affiliates thereof, the Company
will advise you promptly and, if requested by you, confirm such advice in
writing, of the happening of any event that makes any statement of a material
fact made in the Offering Memorandum (as amended or supplemented from time to
time) untrue or which requires the making of any addition to or change in the
Offering Memorandum (as amended or supplemented from time to time) in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading.  If, during
the period specified in the first sentence of this paragraph, any event shall
occur as a result of which it is necessary, in the reasonable opinion of
counsel for the Initial Purchasers, to amend or supplement the Offering
Memorandum in order to make the Offering Memorandum not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser, the
Company will forthwith amend or supplement the Offering Memorandum (in form and
substance reasonably satisfactory to counsel for the Initial Purchasers) so
that, as so amended or supplemented, the Offering Memorandum will not include
an untrue statement of material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to the purchaser, not misleading, and the
Company will furnish to the Initial Purchasers a reasonable number of copies of
such amendment or supplement.


 


(e)           At
any time prior to completion of the distribution of the Securities by the
Initial Purchasers to purchasers who are not affiliates thereof, the Company
and each of its subsidiaries will, as required, file promptly all documents
required to be filed with the Commission pursuant to Section 13, 14, or 15(d) of
the Exchange Act.


 


(f)            None
of the Company or any of its subsidiaries will solicit any offer to buy or
offer or sell the Securities by means of any form of general solicitation or
general advertising.


 


13





















 


(g)           Neither
the Company nor any of its subsidiaries or any affiliate of any of them (as
defined in Rule 501(b) under the Act) or any person acting on its or
their behalf will engage in any directed selling efforts (as that term is
defined in Regulation S under the Act) with respect to the Securities.


 


(h)           None
of the Company or any of its subsidiaries or any affiliate of any of them (as
defined in Rule 501(b) of the Act) will offer, sell or solicit offers
to buy or otherwise negotiate in respect of any security (as defined in the
Act) which will be integrated with the sale of the Securities in a manner that
would require the registration of the Securities under the Act.


 


(i)            The
Company will apply the net proceeds of its sale of the Securities to purchase
all of the 8 7/8% Senior Subordinated Notes due 2011 (the “8 7/8% Notes”)
tendered in a tender offer commenced by the Company and KINA for all of the
outstanding 8 7/8% Notes on September 12, 2005 (the “Tender Offer”).


 


(j)            During
the period from the Closing Date to two years after the Closing Date, neither
the Company nor any of its subsidiaries will not, and will not permit any “affiliate”
(as defined in Rule 144 under the Act) of any of them to, resell any of
the Securities that have been reacquired by them, except for Securities
purchased by the Company or its subsidiaries or any of their affiliates and
resold in a transaction registered under the Act.


 


(k)           (i) 
The Company will, so long as the Securities are outstanding and are “restricted
securities” within the meaning of Rule 144(a)(3) under the Act,
either (i) file reports and other information with the Commission under Section 13
or 15(d) of the Exchange Act, or (ii) in the event it is not subject
to Section 13 or 15(d) of the Exchange Act, make available to holders
of the Securities and prospective purchasers of the Securities designated by
such holders, upon request of such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Act to
permit compliance with Rule 144A in connection with resales of the
Securities.


 


(l)            The
Company will, if requested by the Initial Purchasers, use its best efforts in
cooperation with the Initial Purchasers to (i) permit the Securities to be
designated as PORTAL-eligible securities in accordance with the rules and
regulations adopted by the NASD relating to trading in the NASD’s PORTAL Market
(the “PORTAL Market”) and (ii) permit the Securities to be eligible for
clearance and settlement through The Depository Trust Company.


 


(m)          Each
of the Securities will bear the legend contained in “Notice to Investors” in
the Offering Memorandum and upon the other terms stated therein, except after
such Securities are resold or exchanged pursuant to a registration statement
effective under the Act.


 


(n)           The
Company will upon the request of the Initial Purchasers, for the shorter of the
period the Securities remain outstanding and five years from the Closing Date,
deliver to the Initial Purchasers copies of annual reports and copies of all
other documents, reports and information furnished by the Company or any of its
subsidiaries to their


 


14





















 


securityholders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Exchange Act.


 


(o)           The
Company shall not invest, or otherwise use the proceeds received by the Company
from its sale of the Securities in such a manner as would require the Company
or any of its subsidiaries to register as an investment company under the 1940
Act or the rules and regulations thereunder.


 


(p)           For
a period of 90 days after the date of this Agreement, except as described in or
contemplated by the Offering Memorandum, the Company will not, without the
prior written consent of the Initial Purchasers (which consent will not be
unreasonably or untimely withheld), issue, sell, offer or agree to sell, or
otherwise dispose of, directly or indirectly, any debt securities of the
Company or its subsidiaries (except for subsidiaries organized in the Maldives
and the United Arab Emirates, and for subsidiaries organized in The Bahamas and
the British Virgin Islands related to projects in the Maldives and the United
Arab Emirates and other than the Securities) (it being understood that debt
incurred under the Existing Credit Agreement, as amended, or any replacement
thereof, is not a debt security).


 


(q)           The
Company will timely file such reports pursuant to the Exchange Act as are
necessary to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the
Securities Act.


 


(r)            The
Company and the Guarantors will not claim the benefit of any usury laws against
any holders of Securities or Guarantees, respectively.


 


(s)           The
Company will use its reasonable best efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Securities.


 


5.             Payment
Of Expenses.  The Company agrees
with you that, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, it will pay and be responsible for
all costs, charges, liabilities, expenses, fees and taxes incurred in
connection with or incident to (i) the preparation, printing or
reproduction (including word processing), distribution and delivery of the
Offering Memorandum (including financial statements and exhibits), each
Preliminary Offering Memorandum, and all amendments and supplements to any of
them, (ii) the preparation, printing (including word processing),
execution, distribution and delivery of this Agreement, the Indenture, the
Registration Rights Agreement, the certificates representing the Securities,
the preliminary and final Blue Sky memoranda and all other agreements,
memoranda, correspondence and other documents printed, distributed and
delivered in connection with the offering of the Securities (excluding in each
case any fees and disbursements of counsel for the Initial Purchasers, other
than such fees and disbursements relating to the printing and delivery of the
preliminary and final Blue Sky Memoranda specified in clause (iii) below),
(iii) the qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the jurisdictions referred to in Section 4
(including in each case the reasonable fees and disbursements of counsel for
the Initial Purchasers relating to such qualification and any memoranda
relating thereto and any filing fees in connection therewith),


 


15





















 


(iv) furnishing such copies of the Offering Memorandum, the
Preliminary Offering Memorandum and all amendments and supplements thereto as
may be reasonably requested for use in connection with the offering or sale of
the Securities by the Initial Purchasers or by dealers to whom Securities may
be sold, (v) the rating of the Securities by one or more rating agencies,
if the Securities are so rated, (vi) the fees and expenses of the Trustee
and any agent of the Trustee and the fees and disbursements of counsel for the
Trustee in connection with the Indenture and the Securities, (vii) the
fees and expenses of the Company’s accountants and the fees and expenses of
counsel (including local and special counsel) for the Company, (viii) all
expenses and listing fees incurred in connection with the application for
quotation of the Securities on the PORTAL Market and (ix) any other costs
and expenses incident to the performance by the Company of its other
obligations under this Agreement, including (without limitation) the cost of
printing and engraving the certificates representing the Securities and all
expenses and taxes incident to the sale and delivery of the Securities to
you.  The Company hereby agrees and
acknowledge that the Initial Purchasers shall not be responsible for any fees
or expenses of the Company in connection with the performance by it of its
obligations under this Agreement.


 


6.             Conditions
Of Initial Purchasers’ Obligations. 
The several obligations of the Initial Purchasers to purchase the
Securities under this Agreement are subject to the satisfaction of each of the
following conditions:


 


(a)           All
the representations and warranties of the Company contained in this Agreement
shall be true and correct as of the date hereof and on the Closing Date with
the same force and effect as if made on and as of the Closing Date.  The Company shall have performed or complied
with all of its obligations and agreements herein contained and required to be
performed or complied with by it prior to the Closing Date.


 


(b)           (i) Since
the date of the latest balance sheet of the Company included in the Offering
Memorandum (exclusive of any amendment or supplement thereto on or after the
date of this Agreement) there shall not have been any Material Adverse Change,
or any development involving a prospective Material Adverse Change, (ii) since
the date of the latest balance sheet of the Company included in the Offering
Memorandum (exclusive of any amendment or supplement thereto on or after the
date of this Agreement) there shall not have been any Material Adverse Change,
or any development involving a prospective Material Adverse Change, in the
capital stock or debt of the Company or its subsidiaries, (iii) the
Company and its subsidiaries shall have no liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries, taken as a
whole, other than those reflected in the Offering Memorandum and (iv) on
the Closing Date, you shall have received a certificate of the Company, dated
the Closing Date, signed by the Chief Financial Officer and another senior
officer, in their capacities as officers of the Company, confirming the matters
set forth in paragraphs (a) and (b) of this Section 6.


 


(c)           You
shall have received on the Closing Date an opinion (reasonably satisfactory to
you and counsel for the Initial Purchasers), dated the Closing Date, of Richard
M. Levine, Esq., General Counsel of the Company, to the effect that:


 


16





















 


(i)            (A) all
Authorizations of the Company and its subsidiaries are valid and in full force
and effect; and (B) to the best of such counsel’s knowledge, each of the
Company, its subsidiaries and TCA is in compliance in all material respects with
the terms and conditions of all such Authorizations and with the rules and
regulations of the regulatory authorities and governing bodies having
jurisdiction with respect thereto, except where the failure to have such
Authorizations or to be in compliance could not reasonably be expected to have
a Material Adverse Effect;


 


(ii)           the
descriptions in the Offering Memorandum of contracts to which any of the
Company, any of its subsidiaries, KIML or TCA is a party have been reviewed by
such counsel and are accurate summaries thereof in all material respects
(except for financial data included therein or omitted therefrom, as to which
counsel need express no opinion);


 


(iii)          the
Company and each of its subsidiaries is duly qualified and is in good standing
as a foreign corporation authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except where the failure to be so qualified could
not reasonably be expected to have a Material Adverse Effect;


 


(iv)          none
of (A) the Company, the Guarantors, or the subsidiaries of the Company
organized or incorporated outside of the Commonwealth of The Bahamas is in
violation of its respective charter or by-laws and (B) the Company or its
subsidiaries is in default in the performance of any obligation, bond,
agreement or condition contained in any bond, note, debenture, indenture or
other evidence of indebtedness or any indenture, mortgage, deed of trust or
other contract, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound, except, in each case, for defaults which could
not reasonably be expected to have a Material Adverse Effect;


 


(v)           there
are no legal or governmental proceedings pending or, except as disclosed in the
Offering Memorandum, to such counsel’s knowledge, threatened to which the
Company or any Guarantor is a party or to which any of its property is subject
which, if determined adversely, would reasonably be expected to have a Material
Adverse Effect or adversely affect the performance by the Company of its
obligations pursuant to this Agreement; and


 


(vi)          the
reports which have been filed by the Company with the Commission pursuant to
the Exchange Act and incorporated by reference in the Offering Memorandum (in
each case except for the financial statements and other information of a
statistical, accounting or financial nature, as to which such counsel does not
express any view), at the time they became effective or were filed with the
Commission, as the case may be, complied as to form in all material respects
with the requirements of the Exchange Act and the Exchange Act Regulations; and


 


(vii)         the
execution, delivery and performance of this Agreement, the Registration Rights
Agreement and the Indenture by the Company, the issuance and sale of


 


17





















 


the Securities and the Guarantees, and the compliance by the Company with
all the provisions hereof and thereof and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a breach or
violation of (A) any of the charters or by-laws of the Company or any of
its subsidiaries, (B) any of the terms or provisions of, or constitute a
default under, or cause an acceleration of, any obligation, bond, agreement, or
condition contained in any bond, note, debenture, or other evidence of
indebtedness or any indenture, mortgage, deed of trust or other contract, lease
or other instrument to which the Company or any of its subsidiaries is a party
or by which the Company or any of its subsidiaries or their respective
properties are subject or (C) to such counsel’s knowledge, any laws,
administrative regulations or rulings or orders of any court or governmental
agency, body or official having jurisdiction over the Company, any of its
subsidiaries or their respective properties except in the case of clauses (B) and
(C) for such conflicts, breaches or violations that could not reasonably
be expected to have a Material Adverse Effect.


 


In addition, such counsel shall state that no
facts have come to such counsel’s attention that caused such counsel to believe
that the Offering Memorandum, as amended or supplemented, as of its date and
the Closing Date, contained an untrue statement of a material fact or omitted
to state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading.  Without limiting the foregoing, such counsel
may further state that it assumes no responsibility for, and has not
independently verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other information of a financial,
accounting or statistical nature included in the Offering Memorandum.


 


(d)           You
shall have received on the Closing Date an opinion (reasonably satisfactory to
you and counsel for the Initial Purchasers), dated the Closing Date, of Giselle
M. Pyfrom, Associate General Counsel of the Company, to the effect that:


 


(i)            the
Company and each of the Bahamian Guarantors has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the
Commonwealth of The Bahamas and has the corporate power and authority required
to carry on its business as it is currently being conducted or is proposed to
be conducted (as discussed in the Offering Memorandum) and to own, lease and
operate its properties;


 


(ii)           the
Company and each of the Bahamian Guarantors has all the requisite corporate
power and authority to execute, deliver and perform its obligations under this
Agreement, the Registration Rights Agreement and the Indenture, as applicable,
and to authorize, issue and sell the Securities and Guarantees as contemplated
by this Agreement;


 


(iii)          the
Securities have been duly and validly authorized, executed and delivered by the
Company and the Guarantees have been duly and validly authorized, executed and
delivered by the Bahamian Guarantors;


 


(iv)          neither
the Company nor any of the subsidiaries of the Company organized and
incorporated under the laws of the Commonwealth of The Bahamas is in violation
of its respective Memorandum of Association or Articles of Association;


 


18





















 


(v)           all
of the outstanding shares of capital stock of, or other ownership interests in,
each of the Company’s subsidiaries have been duly and validly authorized and
issued and are fully paid and non-assessable (to the extent governed by Bahamas
law), and are owned by the Company, free and clear of any Lien except for the
pledges by the Company under the Existing Credit Agreement;


 


(vi)          the
Company’s authorized equity capitalization is as set forth in the Offering Memorandum;
the capital stock of the Company conforms in all material respects to the
description thereof contained in the Offering Memorandum; and the holders of
shares of capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the Securities; and, except as set forth in the
Offering Memorandum, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations
into or exchange any Securities for, shares of capital stock of or ownership
interests in the Company are outstanding; all the outstanding shares of capital
stock of the Company have been duly authorized and validly issued and are fully
paid and non-assessable;


 


(vii)         this
Agreement, the Registration Rights Agreement and the Indenture have been duly
and validly authorized, executed and delivered by the Company;


 


(viii)        the
Registration Rights Agreement and the Indenture have been duly and validly
authorized, executed and delivered by each of the Bahamian Guarantors;


 


(ix)           the
statements in the Offering Memorandum under the captions “Risk Factors—You may
have difficulty enforcing judgments against us or our directors or management
that reside outside the United States,” “Risk Factors—We are subject to extensive
governmental gaming regulation, which may harm our business,” “Risk Factors—Our
gaming operations are subject to significant taxation and fees that if
increased, could harm our profitability,” and “Certain Tax
Considerations—Certain Bahamian Tax Considerations,” insofar as such statements
constitute summaries of Bahamian statutes, regulations, legal and governmental
proceedings and contracts to which the Company or any of its subsidiaries is a
party, have been reviewed by such counsel and are accurate summaries thereof in
all material respects;


 


(x)            the
execution, delivery and performance of this Agreement, the Registration Rights
Agreement and the Indenture by the Company and each of the Bahamian Guarantors,
as applicable, the sale of the Securities and the Guarantees, compliance by the
Company and each of the Bahamian Guarantors with all the provisions hereof and
thereof, as applicable, and the consummation of the transactions contemplated
hereby and thereby will not conflict with or constitute a breach or violation
of (A) any Bahamian laws or administrative regulations, (B) rulings
or orders of any Bahamian court or governmental agency, body or official having
jurisdiction over the Company, any of its Bahamian subsidiaries or their
respective properties or (C) the respective Memorandum or Articles of
Association of the Company or any of its Bahamian subsidiaries;


 


(xi)           no
authorization, approval, consent or order of any governmental or regulatory
agency, body or official or any court of the Commonwealth of The


 


19





















 


Bahamas is required to be obtained in connection with the sale of the
Securities or the consummation of the transactions contemplated by this
Agreement; and


 


(xii)          to
the best of such counsel’s knowledge, after due inquiry, neither the Company
nor any of its Bahamian subsidiaries is in default or violation of any Bahamian
laws, administrative regulations or order of any court or governmental agency,
body, department, authority, board or official or other regulatory body.


 


(e)           You
shall have received on the Closing Date an opinion (reasonably satisfactory to
you and counsel for the Initial Purchasers), dated the Closing Date, of
Cravath, Swaine & Moore LLP, United States counsel for the Company, to
the effect that:


 


(i)            based
solely on a certificate from the Secretary of State of the State of New York or
the State of Delaware, as applicable, KINA and each of the Guarantors organized
in the State of New York or the State of Delaware (collectively, the “Relevant
Guarantors”) is a corporation validly existing and in good standing under the
under the laws of its jurisdiction of incorporation;


 


(ii)           the
Registration Rights Agreement has been duly authorized, executed and delivered
by the Relevant Guarantors;


 


(iii)          assuming
the due authorization, execution and delivery of the Registration Rights
Agreement by the Company, the Guarantors (other than the Relevant Guarantors),
and the Initial Purchasers, the Registration Rights Agreement constitutes a
valid and legally binding obligation of each of the Company and the Guarantors,
enforceable against each of the Company and the Guarantors in accordance with
its terms (subject to applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent transfer and other similar laws affecting creditors’
rights generally from time to time in effect and to general principles of
equity, including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered in a proceeding
in equity or at law and subject to customary carve-outs regarding
indemnification provisions);


 


(iv)          the
Indenture has been duly authorized, executed and delivered by the Relevant
Guarantors;


 


(v)           assuming
the due authorization, execution and delivery of the Indenture by the Company,
the Guarantors (other than the Relevant Guarantors) and the Trustee, the
Indenture constitutes a valid and legally binding obligation of each of the
Company and the Guarantors, enforceable against each of the Company and the
Guarantors in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors’ rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law);


 


(vi)          the
Guarantees have been duly authorized, executed and delivered the Relevant
Guarantors;


 


20





















 


(vii)         assuming
the due authorization of the Securities (including the Guarantees) by the
Company and the Guarantors (other than the Relevant Guarantors), when executed
and authenticated in accordance with the Indenture and delivered to and paid
for by the Initial Purchasers pursuant to the Agreement, the Securities
(including the Guarantees) will constitute legal, valid and binding obligations
of each of the Company and the Guarantors, entitled to the benefits of the
Indenture and enforceable against each of the Company and the Guarantors in
accordance with their terms (subject to applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and other similar laws
affecting creditors’ rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
in a proceeding in equity or at law);


 


(viii)        to
such counsel’s knowledge, no authorization, approval or other action by, and no
notice to, consent of, order of, or filing with, any United States Federal or
New York governmental authority or regulatory body is required for the
consummation of the transactions contemplated by the Purchase Agreement, except
such as may be required under the blue sky laws of any jurisdiction in
connection with the purchase and distribution of the Securities by the Initial
Purchasers; provided, however,
that no opinion is expressed in this paragraph (viii) with respect to the
Act;


 


(ix)           the
Registration Rights Agreement, the Securities (including the Guarantees) and
the Indenture conform in all material respects as to legal matters to the
descriptions thereof contained in the Offering Memorandum;


 


(x)            the
statements made in the Offering Memorandum under the heading “Certain Tax
Considerations— Certain U.S. Federal Income Tax Consequences— United States
Holders,” insofar as they purport to describe the material U.S. federal income
tax consequences of an investment in the Securities by a U.S. Holder (as
defined in the Offering Memorandum), fairly summarize the matters therein
described;


 


(xi)           the
statements made in the Offering Memorandum under the heading “Certain Tax
Considerations— Certain U.S. Federal Income Tax Consequences—Non-United States
Holders” as they purport to describe the material United States federal tax
consequences of an investment in the Securities by a Non-U.S. Holder (as
defined in the Offering Memorandum), fairly summarize the matters therein
described;


 


(xii)          neither
the Company nor any of its subsidiaries is an “investment company” within the
meaning of, or is registered or otherwise required to be registered under, the
Investment Company Act of 1940, as amended; and


 


(xiii)         assuming
(A) the accuracy of, and compliance with, the representations, warranties
and covenants of the Company in Section 1 and Section 4 of the
Purchase Agreement, (B) the accuracy of, and compliance with, the
representations, warranties and covenants of the Initial Purchasers in Section 3
of the Purchase Agreement, (C) the accuracy of the representations and
warranties of each of the purchasers to whom the Initial Purchasers initially
resell the Securities as specified in “Notice to Investors; Transfer
Restriction” in the Offering Memorandum, (D) the compliance by the Initial
Purchasers with the offering and


 


21





















 


transfer procedures and restrictions described in the Offering
Memorandum and (E) receipt by the purchasers to whom the Initial
Purchasers initially resell the Securities of a copy of the Offering Memorandum
prior to such sale, it is not necessary in connection with the offer, sale and
delivery of the Securities or in connection with the initial resale of such
Securities in the manner contemplated by the Purchase Agreement and the
Offering Memorandum to register the Securities under the Act, it being
understood that no opinion is expressed as to any subsequent resale of any
Securities.


 


In addition, such counsel shall state that it
has participated in conferences with certain officers of, and with the
accountants for, the Company concerning the preparation of the Offering
Memorandum.  Such counsel shall also
advise you that, although it has made certain inquiries and investigations in
connection with the preparation of the Offering Memorandum, the limitations
inherent in the role of outside counsel are such that it cannot and does not
assume responsibility for the accuracy or completeness of the statements made
in the Offering Memorandum.  Subject to
the foregoing, such counsel shall also state that its work in connection with
this matter did not disclose any information that gave such counsel reason to
believe that the Offering Memorandum, as of its date and the Closing Date,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.


 


Without limiting the foregoing, such counsel
may further state that it assumes no responsibility for, expresses no view as
to, and has not independently verified, the accuracy, completeness or fairness
of the financial statements, notes and schedules and other financial,
accounting and statistical data included in the Offering Memorandum.  Such counsel may also state that it has
assumed in its examination of all relevant documents the genuineness of all signatures,
has relied as to factual matters upon the statements of officers and other
representatives of the Company and as to matters relating to the laws of other
jurisdictions, on the opinions of local counsel for the Company in such
jurisdictions, as to which laws such counsel need express no opinion.


 


(f)            You
shall have received on the Closing Date an opinion (satisfactory to you and
counsel for the Initial Purchasers), dated the Closing Date, of Dorsey &
Whitney LLP, special counsel to the Company, to the effect that:


 


(i)            the
issuance and sale of the Securities by the Company and the Guarantors, the
performance of the Company’s obligations pursuant to the Agreement, and the
receipt of payments by TCA under the Mohegan Sun Casino relinquishment agreement,
will not violate any federal or tribal law;


 


(ii)           no
authorization, approval, consent or order of any federal or tribal authority is
required to be obtained under federal or tribal law in connection with the sale
of the Securities and the transactions contemplated by the Agreement;


 


(iii)          there
is no requirement of federal or tribal law which requires any owner of the
Securities, solely in its capacity as an owner of the Securities, to apply


 


22





















 


for or receive any individual license, any individual certificate or
any other authorization from any Federal or tribal authority to acquire or hold
the Securities;


 


(iv)          each
of the Company, its subsidiaries and TCA has obtained such permits from all
federal and tribal regulatory or governmental officials, bodies and tribunals
as are necessary, under federal and tribal law, for it to conduct its business
in the manner described in the Offering Memorandum; and


 


(v)           no
permit is required, under federal law, of any employee of the Company, any
subsidiary of the Company or TCA, for the Company, its subsidiaries or TCA to
conduct their business in the manner described in the Offering Memorandum.


 


(g)           You
shall have received on the Closing Date an opinion (satisfactory to you and
counsel for the Initial Purchasers), dated the Closing Date, of Rome McGuigan,
P.C., special counsel to the Company, to the effect that:


 


(i)            Kerzner
Investments Connecticut, Inc. is a validly existing corporation under the
laws of the State of Connecticut and has all requisite power and authority to
conduct its businesses as described in the Offering Memorandum; Kerzner
Investments Connecticut, Inc. filed its Articles of Organization with the
Secretary of State of Connecticut on June 30, 1994;


 


(ii)           the
Indenture, Purchase Agreement and the Registration Rights Agreement have been
duly authorized, executed and delivered by Kerzner Investments Connecticut, Inc.;


 


(iii)          the
Guarantee has been duly authorized, executed and delivered by Kerzner Investments
Connecticut, Inc.;


 


(iv)          the
execution, delivery and performance of this Agreement, the Registration Rights
Agreement and the Indenture by the Company and Kerzner Investments Connecticut, Inc.,
as applicable, the issuance and sale of the Guarantee, compliance by Kerzner
Investments Connecticut, Inc. with all of the provisions hereof and
thereof and the consummation of the transactions contemplated hereby and
thereby will not conflict with or constitute a breach or violation of (A) any
Connecticut laws or administrative regulations applicable to Kerzner
Investments Connecticut, Inc., (B) rulings or orders of any
Connecticut court or governmental agency, body or official having jurisdiction
over Kerzner Investments Connecticut, Inc. or its properties or (C) the
charter and by-laws of Kerzner Investments Connecticut, Inc.;


 


(v)           none
of the issuance and sale of the Securities or the performance of the Company’s
obligations pursuant to this Agreement, the Registration Rights Agreement or
the Indenture or the receipt of payments by TCA under the Mohegan Sun Casino
relinquishment agreement will violate any Connecticut statute, rule or
regulation with respect to gaming to which the Company, its subsidiaries or TCA
is subject or by which any of them is bound or to which any of their properties
are subject;


 


23





















 


(vi)          no
authorization, approval, consent or order of any Connecticut authority with
jurisdiction over gaming is required to be obtained in connection with sale of
the Securities and the transactions contemplated by this Agreement, the
Registration Rights Agreement and the Indenture;


 


(vii)         each
of the Company, its subsidiaries, TCA and their employees has such permits from
all Connecticut regulatory or governmental officials, bodies and tribunals,
with respect to gaming laws, as are necessary to conduct its business in the
manner described in the Offering Memorandum; and


 


(viii)        the
TCA partnership agreement is a valid and binding agreement of Kerzner
Investments Connecticut, Inc., enforceable against Kerzner Investments
Connecticut, Inc. in accordance with its terms.


 


(h)           You
shall have received on the Closing Date an opinion (reasonably satisfactory to
you and counsel for the Initial Purchasers), dated the Closing Date, of
Conyers, Dill & Pearman, British Virgin Islands counsel to the
Company, to the effect that:


 


(i)            KIML
is a corporation duly organized, validly existing and in good standing under
the laws of the British Virgin Islands;


 


(ii)           the
Indenture and the Registration Rights Agreement have been duly authorized,
executed and delivered by KIML;


 


(iii)          the
Guarantees have been duly authorized, executed and delivered by KIML;


 


(iv)          the
execution, delivery and performance of the Registration Rights Agreement and
the Indenture by KIML, the issuance and sale of the Guarantee, compliance by
KIML with all the provisions thereof and the consummation of the transactions
contemplated thereby will not conflict with or constitute a breach or violation
of (i) any British Virgin Islands laws or administrative regulations, (ii) rulings
or orders of any British Virgin Islands court or governmental agency, body or
official having jurisdiction over KIML or its properties or (iii) the
charter and by-laws of KIML; and


 


(v)           to
the best knowledge of such counsel, after due inquiry, KIML is not in material
default under, or in material violation of, any material laws or regulations or
any order of any court or governmental agency, authority, department, board or
other regulatory body.


 


The opinions of Richard M. Levine, Giselle M.
Pyfrom, Cravath, Swaine & Moore LLP, Dorsey & Whitney LLP,
Rome McGuigan, P.C. and Conyers, Dill & Pearman described in
paragraphs (c), (d), (e), (f), (g) and (h) above shall be rendered to
you at the request of the Company and shall so state therein.


 


24





















 


(i)            You
shall have received from Skadden, Arps, Slate, Meagher & Flom LLP,
counsel for the Initial Purchasers, an opinion dated the Closing Date as to
such matters as you may reasonably require.


 


(j)            You
shall have received at the Execution Time and on the Closing Date “comfort
letters,” dated as of the Execution Time and the Closing Date, respectively,
from Deloitte & Touche LLP addressed to the Initial Purchasers and the
Board of Directors of the Company and in form and substance reasonably
satisfactory to the Initial Purchasers.


 


(k)           The
Initial Purchasers shall have been notified by the Nasdaq National Securities
Market, Inc. that the Securities have been designated as PORTAL eligible.


 


(l)            The
Registration Rights Agreement shall have been executed and delivered by the
Company and the Guarantors.


 


(m)          The
opinions and certificates mentioned in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in all material respects
satisfactory to the Initial Purchasers and to Skadden, Arps, Slate, Meagher &
Flom LLP, special counsel for the Initial Purchasers.


 


(n)           The
Company shall have obtained the necessary consent, in writing, to the Existing
Credit Agreement permitting the issuance of the Securities and the repurchase
of the 8 7/8% Notes.


 


(o)           Since
the date of this Agreement, there shall not have occurred a downgrading in the
rating assigned to the Securities or any of the Company’s other debt
securities, loans, obligations, guarantees or other debt for borrowed money
(collectively, the “Debt Obligations”) by any “nationally recognized
statistical rating agency,” as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the Act, and no such securities
rating agency shall have publicly announced that it has under surveillance or
review, with possible negative implications, its rating of any of the Debt
Obligations.


 


(p)           If
any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
counsel for the Initial Purchasers pursuant to this Section 6 shall not be
in all material respects reasonably satisfactory in form and substance to you
and special counsel for the Initial Purchasers, all of the Initial Purchasers’
obligations hereunder may be cancelled by you at, or at any time prior to, the
Closing Date.  Notice of such
cancellation shall be given to the Company in writing, or by telephone, telex
or telegraph, confirmed in writing.


 


7.             Indemnification.


 


(a)           The
Company agrees to indemnify and hold harmless (i) each Initial Purchaser, (ii) each
person, if any, who controls any Initial Purchaser within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Initial Purchaser, or


 


25





















 


any controlling person, against any and all losses, liabilities,
claims, damages and out-of-pocket expenses whatsoever (including but not
limited to reasonable attorneys’ fees and any and all reasonable expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, investigation or proceeding, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any such person may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Offering Memorandum
or the Offering Memorandum, or in any supplement thereto or amendment thereof,
or arise out of or are based upon the omission or alleged omission to state therein
a material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provided, however, that the Company will
not be liable in any such case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense are caused by an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with the Initial Purchaser Information; provided, further, that the Company shall not be liable to
any Initial Purchaser or any person set forth in clauses (ii) and (iii) above
with respect to any untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary offering memorandum to the extent that any
such liabilities of an Initial Purchaser result from the fact that such Initial
Purchaser sold Securities to a person as to whom it shall be established by a
court of competent jurisdiction in a final judgment not subject to appeal or
review that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Offering Memorandum or of the Offering
Memorandum as then amended or supplemented if the Company has previously
furnished copies thereof to such Initial Purchaser and the liabilities of such
Initial Purchaser result from an untrue statement or omission of a material
fact contained in the preliminary offering memorandum which was corrected in
the Offering Memorandum or in the Offering Memorandum as then amended or
supplemented.  This indemnity agreement
will be in addition to any liability which the Company may otherwise have,
including under this Agreement.


 


(b)           Each
Initial Purchaser, severally and not jointly, agrees to indemnify and hold
harmless (i) the Company, (ii) each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act and (iii) the respective officers, directors, partners,
employees, representatives and agents of the Company, and any controlling
person against any and all losses, liabilities, claims, damages and expenses
whatsoever (including but not limited to attorneys’ fees and any and all
expenses whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever and any and
all amounts paid in settlement of any claim or litigation), joint or several,
to which they or any of them may become subject under the Securities Act, the
Exchange Act or otherwise, insofar as such losses, liabilities, claims, damages
or expenses (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum or the Offering Memorandum, or in any
amendment thereof or supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue


 


26





















 


statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with the Initial Purchaser
Information provided by such Initial Purchaser. 
This indemnity agreement will be in addition to any liability which the Initial
Purchasers may otherwise have, including under this Agreement.  The Company acknowledges that the statements
described in Section 1(a) of this Agreement constitute the only
Initial Purchaser Information.


 


(c)           Promptly
after receipt by an indemnified party under subsection (a) or (b) above
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party under
such subsection, notify each party against whom indemnification is to be sought
in writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it may have
under this Section 7 except to the extent such indemnifying party has been
materially prejudiced by such failure as determined by a court of competent
jurisdiction in a final judgment not subject to appeal or review).  In case any such action is brought against
any indemnified party, and it notifies an indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party.  Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by one of the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to have charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party
or parties), in any of which events such fees and expenses shall be borne by
the indemnifying parties, it being understood, however, that the indemnifying
parties shall not, in connection with any one such action or separate but
substantially similar related actions arising out of the same general
allegations or circumstances, be liable for fees and expenses of more than one
separate firm of attorneys (in addition to any appropriate local counsel) at
any time for the indemnified parties. 
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or
action effected without its written consent; provided,
however, that such consent was not unreasonably withheld.


 


8.             Contribution.  In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7
hereof is for any reason held to be unavailable from any indemnifying party or
is insufficient to hold harmless a party indemnified thereunder, then each
indemnifying party shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting in the case of losses,
claims, damages, liabilities and expenses suffered by the


 


27





















 


Company, any contribution received by the Company from persons, other
than the Initial Purchasers, who may also be liable for contribution, including
persons who control the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and directors of the
Company) to which any indemnifying person may be subject, in such proportions
as is appropriate to reflect the relative benefits received by the Company and
by the Initial Purchasers from the offering of the Securities and the relative
fault of the Company and of the Initial Purchasers in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations.  The relative benefits
received by the Company, on one hand and the Initial Purchasers, on the other
hand, shall be deemed to be in the same proportion, (x) in the case of the
Company, the total proceeds from the offering (net of initial purchaser
discounts and commissions but before deducting expenses) received by the
Company and (y) in the case of the Initial Purchasers, the initial purchaser
discounts and commissions received by the Initial Purchasers, respectively, in Section 2
of this Agreement.  The relative fault of
the Company, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company, on the
one hand, or the Initial Purchasers, on the other hand, and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.  The
Company and the Initial Purchasers agree that it would not be just and
equitable if contribution pursuant to this Section 8 were determined by
pro rata allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above.  Notwithstanding the provisions of this Section 8,
(i) in no case shall any Initial Purchaser be liable or responsible for
any amount in excess of the initial purchaser discount applicable to the
Securities purchased by such Initial Purchaser hereunder and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.  The Initial Purchasers’ obligations to contribute
under this Section 8 shall be several in accordance with their respective
purchase obligations and not joint.  For
purposes of this Section 8, each person, if any, who controls any Initial
Purchaser within the meaning of Section 15 of the Securities Act or Section 20(a) of
the Exchange Act shall have the same rights to contribution as such Initial
Purchaser, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act and each director of the Company shall have the same rights to
contribution as any, subject in each case to clauses (i) and (ii) of
this Section 8.  Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this Section 8
or otherwise.  No party shall be liable
for contribution with respect to any action or claim settled without its
consent; provided, however, that
such consent was not unreasonably withheld.


 


28





















 


9.             Default
By An Initial Purchaser.


 


(a)           If
any Initial Purchaser or Initial Purchasers shall default in its or their
obligation to purchase the Securities hereunder, and if the Securities with
respect to which such default relates do not (after giving effect to
arrangements, if any, made by you pursuant to subsection (b) below)
exceed in the aggregate 10% of the number of Securities, the Securities to
which the default relates shall be purchased by the non-defaulting Initial
Purchasers in proportion to the respective proportions which the numbers of
Securities set forth opposite their respective names in Schedule I hereto
bear to the aggregate number of Securities set forth opposite the names of the
non-defaulting Initial Purchasers.


 


(b)           In
the event that such default relates to more than 10% of the Securities, you may
in your discretion arrange for you or for another party or parties (including
any non-defaulting Initial Purchaser or Initial Purchasers who so agree) to
purchase such Securities to which such default relates on the terms contained
herein.  In the event that within five
calendar days after such a default you do not arrange for the purchase of the
Securities to which such default relates as provided in this Section 9,
this Agreement shall thereupon terminate, without liability on the part of the
Company with respect thereto (except in each case as provided in Sections 5, 7(a) and
8 hereof) or the Initial Purchasers, but nothing in this Agreement shall
relieve a defaulting Initial Purchaser or Initial Purchasers of its or their
liability, if any, to the other non-defaulting Initial Purchasers and the
Company for damages occasioned by its or their default hereunder.


 


(c)           In
the event that the Securities to which the default relates are to be purchased
by the non-defaulting Initial Purchasers, or are to be purchased by another
party or parties as aforesaid, you or the Company shall have the right to
postpone the Closing Date for a period, not exceeding five Business Days, in
order to effect whatever changes may thereby be made necessary in the Offering
Memorandum or in any other documents and arrangements, and the Company agrees
to file promptly any amendment or supplement to the Offering Memorandum which,
in the opinion of Initial Purchasers’ counsel, may thereby be made necessary or
advisable.  The term “Initial Purchaser”
as used in this Agreement shall include any party substituted under this Section 9
with like effect as if it had originally been a party to this Agreement with
respect to such Securities.


 


10.          Survival
Of Representations And Agreements. 
All representations and warranties, covenants and agreements of the
Initial Purchasers and the Company contained in this Agreement, including the
agreements contained in Section 5, the indemnity agreements contained in Section 7
and the contribution agreements contained in Section 8, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Initial Purchasers or any controlling person thereof or by
or on behalf of the Company, any of its officers and directors or any
controlling person thereof, and shall survive delivery of any payment for the
Securities to and by the Initial Purchasers. 
The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8 and 11(c) hereof shall survive the
termination of this Agreement including pursuant to Section 11 hereof.


 


29





















 


11.          Termination.


 


(a)           You
shall have the right to terminate this Agreement at any time prior to the
Closing Date if (i) any domestic or international event or act or
occurrence has materially disrupted, or in the opinion of you will in the
immediate future materially disrupt, the market for the Company’s Securities or
securities in general; or (ii) trading generally on the New York or
American Stock Exchanges shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, on the New York or American Stock
Exchanges by the New York or American Stock Exchanges or by order of the
Commission or any other governmental authority having jurisdiction; or (iii) a
general banking moratorium has been declared by New York State, federal or
Bahamian authorities or if any new restriction materially adversely affecting
the distribution of the Securities shall have become effective; or (iv)(A) there
shall have occurred any outbreak or escalation of hostilities or acts of
terrorism involving the United States or there is a declaration of a national
emergency or war by the United States or (B) there shall have been a
change in political, financial or economic conditions if the effect of any such
event in (A) or (B) is such as in the judgment of you makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Securities on the terms contemplated by the Offering Memorandum; (v) since
the date as of which information is given in the Offering Memorandum (exclusive
of any amendment or supplement thereto on or after the date of this Agreement),
there shall have been any Material Adverse Change, except as described in or
contemplated by the Offering Memorandum (excluding any amendment or supplement
thereto); or (vi) the suspension of trading of the Company’s ordinary
shares by the New York Stock Exchange, the Commission or any other governmental
authority (other than any suspension that would not, in your reasonable
judgment, make it impracticable or inadvisable to proceed with the offering,
sale and delivery of the Securities on the terms contemplated by the Offering
Memorandum).


 


(b)           Any
notice of termination pursuant to this Section 11 shall be by telephone,
telex, or telegraph, confirmed in writing by letter.


 


(c)           If
this Agreement shall be terminated pursuant to any of the provisions hereof
(otherwise than pursuant to (i) notification by you as provided in Section 11(a) hereof
or (ii) Section 9(a) hereof), or if the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Initial Purchasers set forth herein is not satisfied or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof, the Company will, subject
to demand by the Initial Purchasers, reimburse the Initial Purchasers through
you for all out-of-pocket expenses (including the fees and expenses of counsel
for the Initial Purchasers), incurred by the Initial Purchasers in connection
herewith.


 


12.          Notice.  All communications hereunder, except as may
be otherwise specifically provided herein, shall be in writing and effective
only on receipt, and, if sent to the Company, will be mailed or delivered to
Richard M. Levine, Esq., Kerzner International Limited, Coral Towers,
Paradise Island, The Bahamas, with a copy to Cravath, Swaine & Moore
LLP, 825 Eighth Avenue, New York, New York, 10019, Attention:  D. Collier Kirkham, Esq.; or if sent to
any Initial Purchaser, will be mailed, delivered or telefaxed and confirmed to
it at the address set forth on the first page hereto with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP, 300 South Grand Avenue, Suite 3400,
Los Angeles, California 90071, Attention: 
Nicholas


 


30





















 


Saggese, Esq., or in any case to such other address as the person
to be notified may have requested in writing.


 


13.          Parties.  This Agreement shall inure solely to the
benefit of, and shall be binding upon the Initial Purchasers and the Company
and the controlling persons, directors, officers, employees and agents referred
to in Sections 7 and 8, and their respective successors and assigns, and no
other person shall have or be construed to have any legal or equitable right,
remedy or claim under or in respect of or by virtue of this Agreement or any
provision herein contained.  The term “successors
and assigns” shall not include a purchaser, in its capacity as such, of
Securities from an Initial Purchaser.


 


14.          Governing
Law.  THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW
YORK.  EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT TO ANY SUIT,
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.  EACH OF THE PARTIES HERETO IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE
LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM.


 


15.          Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.


 


16.          Headings.  The section headings used herein are for
convenience and shall not affect the construction hereof.


 


17.          Definitions.  The terms which follow, when used in this
Agreement, shall have the meanings indicated.


 


“Business Day” shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York, New York or the New York Stock Exchange are
authorized or obligated by law or executive order to close.


 


“Commission” shall mean the Securities and
Exchange Commission.


 


31





















 


“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Commission promulgated thereunder.


 


“Execution Time” shall mean the date and time
that this Agreement is executed and delivered by the parties hereto.


 


“Securities Act” shall mean the Securities
Act of 1933, as amended, and the rules and regulations of the Commission
promulgated thereunder.


 


[Signature page follows.]


 


32





















 


If the foregoing correctly sets forth the understanding between the
Initial Purchasers and the Company, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement between us.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  KERZNER INTERNATIONAL LIMITED

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  John R. Allison 

  	
   

  
	
   

  	
   

  	
  Name:

  	
  John R. Allison

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Richard M. Levine

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Richard M. Levine

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and

  
	
   

  	
   

  	
   

  	
  General Counsel

  
					



 





















 


	
  Accepted as of the date first above
  written:

  
	
   

  
	
   

  
	
  DEUTSCHE BANK SECURITIES INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/

  	
  A. Drew Goldman

  	
   

  	
   

  
	
   

  	
  Name:

  	
  A. Drew Goldman

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/

  	
  Michael DeFelice

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Michael DeFelice

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Managing Director

  	
   

  	
   

  



 


 


On behalf of themselves and the other


Initial Purchasers named in Schedule I hereto.


 





















 


SCHEDULE I


 




	
  Name
  of Initial Purchaser

  	
   

  	
  Aggregate Principal

  Amount of Securities to be

  Purchased

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Deutsche Bank Securities Inc.

  	
   

  	
  $

  	
  105,882,353

  	
   

  
	
  J.P. Morgan Securities Inc.

  	
   

  	
  $

  	
  105,882,353

  	
   

  
	
  Bear, Stearns & Co. Inc.

  	
   

  	
  $

  	
  47,058,824

  	
   

  
	
  Goldman, Sachs & Co.

  	
   

  	
  $

  	
  47,058,824

  	
   

  
	
  Merrill Lynch, Pierce, Fenner & Smith Incorporated

  	
   

  	
  $

  	
  47,058,824

  	
   

  
	
  Wachovia Capital Markets, LLC

  	
   

  	
  $

  	
  23,529,412

  	
   

  
	
  Wells Fargo Securities, LLC

  	
   

  	
  $

  	
  23,529,412

  	
   

  
	
  Total

  	
   

  	
  $

  	
  400,000,000

  	
   

  






 





















 


SCHEDULE II


 




	
  Guarantors

  	
   

  	
  State or Jurisdiction of Incorporation or

  Organization

  
	
  Kerzner International
  North America, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner International
  Bahamas Limited

  	
   

  	
  Bahamas

  
	
  Island Hotel Company
  Limited

  	
   

  	
  Bahamas

  
	
  Paradise Acquisition
  Limited

  	
   

  	
  Bahamas

  
	
  Paradise Beach Inn Limited

  	
   

  	
  Bahamas

  
	
  Paradise Enterprises
  Limited

  	
   

  	
  Bahamas

  
	
  Paradise Island Limited

  	
   

  	
  Bahamas

  
	
  Kerzner Investments
  Connecticut, Inc.

  	
   

  	
  Connecticut

  
	
  Kerzner International
  Management Limited

  	
   

  	
  British Virgin Islands

  
	
  Aberdeen Management
  Limited

  	
   

  	
  Channel Islands

  
	
  Birbo NV

  	
   

  	
  Netherlands Antilles

  
	
  ISS, Inc.

  	
   

  	
  Florida

  
	
  Paradise Island Futures
  Limited

  	
   

  	
  Bahamas

  
	
  Paradise Security Services
  Limited

  	
   

  	
  Bahamas

  
	
  PIV, Inc.

  	
   

  	
  Florida

  
	
  Purposeful BV

  	
   

  	
  Netherlands

  
	
  Kerzner Investments
  California, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner International New
  York, Inc.

  	
   

  	
  New York

  
	
  Kerzner Hotels
  International (Bermuda) Limited

  	
   

  	
  Bermuda

  
	
  Kerzner Hotels
  International Management NV

  	
   

  	
  Netherlands Antilles

  
	
  Kerzner International
  Timeshare Limited

  	
   

  	
  Bahamas

  
	
  Kerzner International
  Development (Timeshare) Limited

  	
   

  	
  Bahamas

  
	
  Kerzner International
  Development Services, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner International
  Development Limited

  	
   

  	
  Bahamas

  
	
  Kerzner International
  Finance (BVI) Limited

  	
   

  	
  British Virgin Islands

  
	
  Kerzner International
  Marketing (UK) Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner International
  Marketing, Inc.

  	
   

  	
  Florida

  
	
  Kerzner International
  Nevada, Inc.

  	
   

  	
  Nevada

  
	
  Kerzner New
  York, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner International
  Resorts, Inc.

  	
   

  	
  Florida

  
	
  Solea Vacances SA

  	
   

  	
  France

  
	
  Kerzner International
  Development Services Mexico, S. de R.L. de C.V.

  	
   

  	
  Mexico

  
	
  Kerzner International
  Development Services, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner International
  Management Services, Inc.

  	
   

  	
  Delaware

  






 





















 




	
  Guarantors

  	
   

  	
  State or Jurisdiction of Incorporation or

  Organization

  
	
  Kerzner Investments
  Palmilla, Inc.

  	
   

  	
  Bahamas

  
	
  Kerzner International
  California, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner International
  Development Services Holding, L.L.C.

  	
   

  	
  Delaware

  
	
  Kerzner International
  Management Services Holding, L.L.C.

  	
   

  	
  Delaware

  
	
  Kerzner International Management Services Mexico, S. de R.L. de C.V.

  	
   

  	
  Mexico

  
	
  Kerzner Northampton Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner Servicios Mexico, S. de R.L. de C.V.

  	
   

  	
  Mexico

  
	
  Kerzner International
  Development Services (UK) Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner International Palm
  Island Limited

  	
   

  	
  British Virgin Islands

  
	
  Kerzner International UAE
  Limited

  	
   

  	
  British Virgin Islands

  
	
  Kerzner International
  Employment Services Limited

  	
   

  	
  British Virgin Islands

  
	
  Kerzner International
  Development FZ-LLC

  	
   

  	
  Dubai Free Zone

  
	
  Kerzner International
  Management FZ-LLC

  	
   

  	
  Dubai Free Zone

  
	
  One&Only Management
  Limited

  	
   

  	
  British Virgin Islands

  
	
  One&Only Resorts
  Limited

  	
   

  	
  British Virgin Islands

  
	
  Kerzner International
  Marine Projects Limited

  	
   

  	
  Bahamas

  
	
  Kerzner Investments
  BLB, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner Investments
  Pennsylvania, Inc.

  	
   

  	
  Delaware

  
	
  Kerzner UK Leisure
  Property Holdings Limited

  	
   

  	
  Bahamas

  
	
  Kerzner UK Leisure
  Operations Holdings Limited

  	
   

  	
  Bahamas

  
	
  Kerzner Greenwich Hotel
  Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner Greenwich Casino
  Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner Glasgow Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner UK Gaming Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner Manchester Limited

  	
   

  	
  United Kingdom

  
	
  Kerzner Investments
  Morocco Limited

  	
   

  	
  Bahamas

  
	
  Kerzner International
  Morocco Holdings Limited

  	
   

  	
  Bahamas

  
	
  Kerzner International
  Management (Morocco) Limited

  	
   

  	
  Bahamas

  
	
  Kerzner International
  Development (Morocco) Limited

  	
   

  	
  Bahamas

  
	
  One&Only Resorts
  (Deutschland) Gmbh

  	
   

  	
  Germany

  
	
  One&Only Resorts
  (France) EURL

  	
   

  	
  France

  






 





















 




	
  Guarantors

  	
   

  	
  State or Jurisdiction of Incorporation or

  Organization

  
	
  One&Only Resorts (Southern Africa) (Pty) Limited

  	
   

  	
  South Africa

  
	
  World Leisure Holidays (Pty.) Limited

  	
   

  	
  South Africa

  
	
  Paradise Marina Condominium Investments Limited

  	
   

  	
  Bahamas

  
	
  Hurricane Hole Marina Investments Limited

  	
   

  	
  Bahamas

  
	
  Hurricane Hole Properties Limited

  	
   

  	
  Bahamas

  






 





















 


EXHIBIT A


 


Form of Registration
Rights Agreement