Exhibit 99(b)
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SUN INTERNATIONAL HOTELS LIMITED
SUN INTERNATIONAL NORTH AMERICA, INC.
As Issuers
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8.625% Senior Subordinated Notes due 2007
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SUPPLEMENTAL INDENTURE
Dated as of July 23, 2001
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Supplementing the Indenture dated as of December 10, 1997, among Sun International
Hotels Limited and Sun International North America, Inc., as Issuers, the Guarantors
named therein and The Bank of New York, as Trustee
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THE BANK OF NEW YORK
As Trustee
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SUPPLEMENTAL INDENTURE dated as of July 23, 2001,
among Sun International Hotels Limited, an international
business company organized under the laws of the
Commonwealth of The Bahamas (the "Company" or "Sun
International"), Sun International North America, Inc.,
a Delaware corporation and a wholly owned subsidiary of
the Company ("SINA" and, together with the Company, the
"Issuers"), the Guarantors and The Bank of New York (the
"Trustee"), as Trustee under the Indenture referred to
herein.
WHEREAS the Issuers, the Guarantors and the Trustee heretofore executed
and delivered an Indenture dated as of December 10, 1997 (the "Indenture"), in
respect of the Issuers' 8.625% Senior Subordinated Notes due 2007;
WHEREAS Section 9.2 of the Indenture provides that the Issuers and the
Trustee may amend the Indenture with the consent of the Holders of at least a
majority in aggregate principal amount of the Securities then outstanding;
WHEREAS the Issuers desire to amend the Indenture, as set forth in
Article I hereof;
WHEREAS the Holders of a majority in aggregate principal amount of the
Securities outstanding have consented to the amendments effected by this Supplemental
Indenture; and
WHEREAS this Supplemental Indenture has been duly authorized by all
necessary corporate action on the part of the Issuers.
NOW, THEREFORE, the Issuers, the Guarantors and the Trustee agree as
follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
Amendments
SECTION 1.01. Amendment to Section 4.3 (Limitation on Restricted
Payments). Section 4.3 of the Indenture is amended and restated to read in its
entirety as follows:
"Section 4.3 Limitation on Restricted Payments.
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The Issuers and the Guarantors, if any, shall not, and shall
not permit any of their Subsidiaries to, individually or collectively,
directly or indirectly, make any Restricted Payment if, after giving
effect to such Restricted Payment on a pro forma basis, (i) a Default
or an Event of Default shall have occurred and be continuing, (ii) Sun
International is not permitted to incur at least $1.00 of additional
Indebtedness pursuant to the Debt Incurrence Ratio contained in Section
4.10 (to the extent applicable) or (iii) the aggregate amount of all
Restricted Payments made by Sun International and its Subsidiaries,
including after giving effect to such proposed Restricted Payment, from
and after the Issue Date, would exceed the sum of (a) 50% of the
aggregate Consolidated Net Income of Sun International for the period
(taken as one accounting period) commencing January 1, 1996 to and
including the last day of the fiscal quarter ended immediately prior to
the date of each such calculation (or, in the event Consolidated Net
Income for such period is a deficit, then minus 100% of such deficit)
(not giving pro forma effect to the acquisition of ▇▇▇▇▇▇▇ Gaming &
Entertainment, Inc. for periods prior to its consummation), plus
(b) the aggregate Net Cash Proceeds received by Sun International from
the sale of its Qualified Capital Stock (other than (i) to a Subsidiary
of Sun International and (ii) to the extent applied in connection with
a Qualified Exchange) after the Issue Date, plus (c) $50 million;
provided, however, that for purposes of clause (iii)(a) hereof, in the
case of an Investment made on or after December 31, 2000 that would
constitute a Restricted Payment under clause (d) of the definition of
"Restricted Payments," the Consolidated Net Income of Sun International
shall be adjusted to exclude the $229.2 million write-down of the net
assets related to the disposition of the Resorts International Hotel &
Casino and certain related assets as described in Item 5 of Sun
International's annual report on Form 20-F, as filed with the
Commission on July 2, 2001, provided, further, however that no such
adjustment will be made for purposes of Restricted Payments that
constitute a payment of any dividend or other distribution in respect
of any Equity Interests or the purchase, redemption or other
acquisition or retirement for value of Equity Interests of the Issuers.
The immediately preceding paragraph, however, will not prohibit
(x) a Qualified Exchange, (y) the payment of any dividend on Capital
Stock within 60 days after the date of its declaration if such dividend
could have been made on the date of such declaration in compliance with
the foregoing provisions and (z) the redemption or repurchase of any
Capital Stock or Indebtedness of the Issuers or their Subsidiaries
(other than Capital Stock or Indebtedness held by Sun International
Investments Limited, its shareholders or Permitted Holders), if the
holder or beneficial owner of such Capital Stock or Indebtedness is
required to be found suitable by any Gaming Authority to own or vote
any security and is found unsuitable by any such Gaming Authority to so
own or vote such security. The full amount of any Restricted Payment
made pursuant to the foregoing clauses (y) and (z) (but not pursuant to
clause (x)) of the immediately preceding sentence, however, will be
deducted in the calculation of the aggregate amount of Restricted
Payments available to be made referred to in clause (iii) of the
immediately preceding paragraph."
SECTION 1.02. Amendment to Section 4.10 (Limitation on Incurrence of
Additional Indebtedness and Disqualified Capital Stock). Section 4.10 of the
Indenture is amended and restated to read in its entirety as follows:
"Section 4.10 Limitation on Incurrence of Additional Indebtedness and
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Disqualified Capital Stock.
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Except as set forth below in this covenant, the Issuers and the Guarantors, if
any, will not, and will not permit any of their Subsidiaries to, individually or
collectively, directly or indirectly, issue, assume, guaranty, incur, become directly
or indirectly liable with respect to (including as a result of an Acquisition), or
otherwise become responsible for, contingently or otherwise (individually and
collectively, to "incur" or, as appropriate, an "incurrence"), any Indebtedness or
any Disqualified Capital Stock (including Acquired Indebtedness), except Permitted
Indebtedness. Notwithstanding the foregoing, if (i) no Event of Default shall have
occurred and be continuing at the time of, or would occur after giving effect on a
pro forma basis to, such incurrence of Indebtedness or Disqualified Capital Stock and
(ii) on the date of such incurrence (the "Incurrence Date"), the Consolidated
Coverage Ratio of Sun International for the Reference Period immediately preceding
the Incurrence Date, after giving effect on a pro forma basis to such incurrence of
such Indebtedness or Disqualified Capital Stock and, to the extent set forth in the
definition of Consolidated Coverage Ratio, the use of proceeds thereof, would be at
least 2.5 to l (the "Debt Incurrence Ratio"), then the Issuers and the Guarantors, if
any, may incur such Indebtedness or Disqualified Capital Stock.
Acquired Indebtedness shall be deemed to have been incurred at the time the
person who incurred such Indebtedness becomes a Subsidiary of either of the Issuers
(including upon designation of any Unrestricted Subsidiary or other person as a
Subsidiary) or is merged with or into or consolidated with either of the Issuers or a
Subsidiary of either of the Issuers, as applicable."
SECTION 1.03. Trustee's Acceptance. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same under the terms and conditions
set forth in the Indenture.
ARTICLE II
Miscellaneous
SECTION 2.01. Interpretation. Upon execution and delivery of this
Supplemental Indenture, the Indenture shall be modified and amended in accordance
with this Supplemental Indenture, and all the terms and conditions of both shall be
read together as though they constitute one instrument, except that, in case of
conflict, the provisions of this Supplemental Indenture will control. The Indenture,
as modified and amended by this Supplemental Indenture, is hereby ratified and
confirmed in all respects and shall bind every Holder of Securities. In case of
conflict between the terms and conditions contained in the Securities and those
contained in the Indenture, as modified and amended by this Supplemental Indenture,
the provisions of the Indenture, as modified and amended by this Supplemental
Indenture, shall control.
SECTION 2.02. Conflict with Trust Indenture Act. If any provision of
this Supplemental Indenture limits, qualifies or conflicts with any provision of the
TIA that is required under the TIA to be part of and govern any provision of this
Supplemental Indenture, the provision of the TIA shall control. If any provision of
this Supplemental Indenture modifies or excludes any provision of the TIA that may be
so modified or excluded, the provision of the TIA shall be deemed to apply to the
Indenture as so modified or to be excluded by this Supplemental Indenture, as the
case may be.
SECTION 2.03. Severability. In case any provision in this
Supplemental Indenture shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 2.04. Terms Defined in the Indenture. All capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 2.05. Headings. The Article and Section headings of this
Supplemental Indenture have been inserted for convenience of reference only, are not
to be considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 2.06. Benefits of Supplemental Indenture, etc. Nothing in
this Supplemental Indenture or the Securities, express or implied, shall give to any
Person, other than the parties hereto and thereto and their successors hereunder and
thereunder and the Holders of the Securities, any benefit of any legal or equitable
right, remedy or claim under the Indenture, this Supplemental Indenture or the
Securities.
SECTION 2.07. Successors. All agreements of the Issuers and the
Guarantors in this Supplemental Indenture shall bind their successors. All
agreements of the Trustee in this Supplemental Indenture shall bind its successors.
SECTION 2.08. Trustee Not Responsible for Recitals. The Trustee shall
not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this Supplemental Indenture or for or in respect of the correctness of
the recitals of fact contained herein, all of which recitals are made solely by the
Issuers.
SECTION 2.09. Certain Duties and Responsibilities of the Trustee. In
entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting the
liability or affording protection to the Trustee, whether or not elsewhere herein so
provided.
SECTION 2.10. Governing Law. This Supplemental Indenture shall be
governed by and construed in accordance with the internal laws of the State of New
York, as applied to contracts made and performed within the State of New York,
without regard to principles of conflicts of law. The Issuers and each Guarantor
hereby irrevocably submit 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 of any suit, action or
proceeding arising out of or relating to this Supplemental Indenture, and irrevocably
accepts for itself and in respect of its property, generally and unconditionally,
jurisdiction of the aforesaid courts. The Issuers and each Guarantor irrevocably
waive, to the fullest extent they may effectively do so under applicable law, trial
by jury and any objection which they 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. Nothing herein shall affect the right of the Trustee or
any securityholder to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Issuers or any Guarantor
in any other jurisdiction.
SECTION 2.11. Duplicate Originals. All parties may sign any number of
copies or counterparts of this Supplemental Indenture. Each signed copy or
counterpart shall be an original, but all of them together shall represent the same
agreement.
IN WITNESS WHEREOF, each party hereto has caused this Supplemental
Indenture to be signed by its officer thereunto duly authorized as of the date first
written above.
SUN INTERNATIONAL HOTELS LIMITED,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President of
Corporate Development and General
Counsel
SUN INTERNATIONAL NORTH AMERICA, INC.,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Secretary
GUARANTORS:
SUN INTERNATIONAL BAHAMAS LIMITED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PARADISE ISLAND LIMITED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
ISLAND HOTEL COMPANY LIMITED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PARADISE BEACH INN LIMITED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PARADISE ENTERPRISES LIMITED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
PARADISE ACQUISITIONS LIMITED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Secretary
SUN INTERNATIONAL MANAGEMENT LIMITED,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SUN COVE, LTD.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Authorized Signatory
GGRI, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
THE BANK OF NEW YORK, as Trustee,
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President