Exhibit 99(b)
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SUN INTERNATIONAL HOTELS LIMITED
SUN INTERNATIONAL NORTH AMERICA, INC.
As Issuers
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9.000% Senior Subordinated Notes due 2007
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SECOND SUPPLEMENTAL INDENTURE
Dated as of September 19, 2001
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Supplementing the Indenture dated as of March 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 September 19,
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"); Sun International Timeshare Limited, Paradise
Island Futures Limited, Sun International Development
Limited, Paradise Security Services Limited, Sunonline
Limited, Bahamas e-Trading Limited, Sun International
Network Data Limited, and Sun International Development
(Timeshare) Limited, each an international business company
organized under the laws of the Commonwealth of The
Bahamas, Sunonline (IOM) Limited, a company organized under
the laws of the Isle of Man, Sun Hotels International
(Bermuda) Limited, a company organized under the laws of
Bermuda, Sun International Finance Limited, a company
organized under the laws of the British Virgin Islands,
Aberdeen Management Limited, a company organized under the
laws of the Channel Islands, Sun Vacances SA, a company
organized under the laws of France, Birbo NV and Sun Hotels
International Management NV, each a company organized under
the laws of the Netherlands Antilles, Purposeful BV, a
company organized under the laws of the Netherlands, Sun
International Marketing (UK) Ltd. and Sun International
Network Services Limited, each a company organized under
the laws of the United Kingdom, Sun International Nevada,
Inc., a Nevada corporation, Sun International Resorts Inc.,
a Florida corporation, PIV, Inc., a Florida corporation,
ISS, Inc., a Florida corporation, Sun International
Marketing, Inc., a Florida corporation, Sun Cove
California, Inc., a Delaware corporation, Sun Cove New
York, Inc., a Delaware corporation, Sun International New
York, Inc., a New York corporation and Sun International
Development Group, Inc., a New Jersey corporation
(collectively, the "Additional 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 March 10, 1997, in respect of the Issuers' 9.000%
Senior Subordinated Notes due 2007, as supplemented by the Supplemental Indenture dated
July 23, 2001 (such indenture, as supplemented, the "Indenture");
WHEREAS, the Additional Guarantors each have agreed to become a
"Guarantor" under the Indenture, in each case in order to unconditionally guarantee all
of the Issuer's obligations under the Securities pursuant to a Guarantee on the terms
and conditions set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Indenture, the parties hereto are
authorized to execute and deliver this Supplemental Indenture;
NOW, THEREFORE, the Issuers, the Additional Guarantors and the Trustee
agree as follows for the equal and ratable benefit of the Holders of the Securities:
ARTICLE I
Guarantee
SECTION 1.01. a. Guarantees.
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(i) In consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, each of the Additional
Guarantors hereby irrevocably and unconditionally guarantees, jointly and
severally, on a senior subordinated basis (the "Guarantee") to each
Holder of a Security authenticated and delivered by the Trustee and to
the Trustee and its successors and assigns, irrespective of the validity
and enforceability of the Indenture, the Securities or the obligations of
the Issuers under the Indenture or the Securities, that: (w) the
principal and premium (if any) of and interest (and Liquidated Damages,
if any) on the Securities will be paid in full when due, whether at the
maturity or interest payment date, by acceleration, call for redemption,
upon an Change of Control Offer, an Asset Sale Offer or otherwise; (x)
all other obligations of the Issuers to the Holders or the Trustee under
the Indenture or the Securities will be promptly paid in full or
performed, all in accordance with the terms of this Supplemental
Indenture, the Indenture and the Securities; and (y) in case of any
extension of time of payment or renewal of any Securities or any of such
other obligations, they will be paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at
maturity, by acceleration, call for redemption, upon an Offer to Purchase
or otherwise. Failing payment when due of any amount so guaranteed for
whatever reason, each Additional Guarantor shall be obligated to pay the
same before failure so to pay becomes an Event of Default.
(ii) Each Additional Guarantor hereby agrees that its obligations with
regard to this Guarantee shall be unconditional, irrespective of the
validity, regularity or enforceability of the Securities or the
Indenture, the absence of any action to enforce the same, the recovery of
any judgment against the Issuers, any action to enforce the same or any
other circumstances that might otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Additional Guarantor hereby
waives diligence, presentment, demand of payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Issuers, the right
to require a proceeding first against the Issuers or right to require the
prior disposition of the assets of the Issuers to meet its obligations,
protest, notice and all demands whatsoever and covenants that this
Guarantee will not be discharged except by complete performance of the
obligations contained in the Securities and the Indenture.
(iii) If any Holder or the Trustee is required by any court or otherwise
to return to either the Issuers or any Additional Guarantor, or any
Custodian, Trustee, or similar official acting in relation to either the
Issuers or such Additional Guarantor, any amount paid by either the
Issuers or such Additional Guarantor to the Trustee or such Holder, this
Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. Each Additional Guarantor agrees that it will not
be entitled to any right of subrogation in relation to the Holders in
respect of any obligations guaranteed hereby until payment in full of all
obligations guaranteed hereby. Each Additional Guarantor further agrees
that, as between such Additional Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, (i) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Section
6.2 of the Indenture for the purposes of this Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such acceleration as
to the Issuers of the obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of those obligations as provided
in Section 6.2 of the Indenture, those obligations (whether or not due
and payable) will forthwith become due and payable by each of the
Additional Guarantors for the purpose of this Guarantee.
(iv) Each Additional Guarantor and by its acceptance of a Security
issued hereunder each Holder hereby confirms that it is the intention of
all such parties that the guarantee by such Additional Guarantor set
forth in Section 1.01(a)(i) not constitute a fraudulent transfer or
conveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act or any similar
Federal or state law. To effectuate the foregoing intention, the Holders
and such Additional Guarantor hereby irrevocably agree that the
obligations of such Additional Guarantor under its guarantee set forth in
Section 1.01(a)(i) shall be limited to the maximum amount as will, after
giving effect to all other contingent and fixed liabilities of such
Additional Guarantor and after giving effect to any collections from or
payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under its Guarantee or pursuant to
the following paragraph of this Section 1.01(a)(iv), result in the
obligations of such Additional Guarantor under such guarantee not
constituting such a fraudulent transfer or conveyance.
Each Additional Guarantor that makes any payment or distribution
under Section 1.01(a)(i) shall be entitled to a contribution from each
other Guarantor equal to its Pro Rata amount of such payment or
distribution so long as the exercise of such right does not impair the
rights of the Holders under the Guarantees. For purposes of the
foregoing, the "Pro Rata amount" of any Additional Guarantor means the
percentage of the net assets of all Guarantors held by such Additional
Guarantor, determined in accordance with GAAP.
b. Execution and Delivery of Guarantee.
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To evidence its Guarantee set forth in Section 1.01, each Additional
Guarantor agrees that a notation of such Guarantee substantially in the form annexed to
the Indenture as Exhibit B shall be endorsed on each Security authenticated and
delivered by the Trustee and that this Supplemental Indenture shall be executed on
behalf of such Additional Guarantor by two Officers or an Officer and an Assistant
Secretary by manual or facsimile signature.
Each Additional Guarantor agrees that its Guarantee set forth in
Section 1.01 shall remain in full force and effect and apply to all the Securities
notwithstanding any failure to endorse on each Security a notation of such Guarantee.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security on which a Guarantee is
endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of each Additional Guarantor.
c. Certain Bankruptcy Events.
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Each Additional Guarantor hereby covenants and agrees that in the event
of the insolvency, bankruptcy, dissolution, liquidation or reorganization of either of
the Issuers, such Additional Guarantor shall not file (or join in any filing of), or
otherwise seek to participate in the filing of, any motion or request seeking to stay or
to prohibit (even temporarily) execution on the Guarantee and hereby waives and agrees
not to take the benefit of any such stay of execution, whether under Section 362 or 105
of the United States Bankruptcy Code or otherwise.
d. Limitation on Merger, Consolidation, etc. of Additional Guarantors.
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No Additional Guarantor shall consolidate or merge with or into (whether
or not such Additional Guarantor is the surviving person) another person unless (i)
subject to the provisions of the following paragraph, the person formed by or surviving
any such consolidation or merger (if other than such Additional Guarantor) assumes all
the obligations of such Additional Guarantor pursuant to a supplemental indenture in
form reasonably satisfactory to the Trustee, pursuant to which such person shall
unconditionally guarantee, on a senior subordinated basis, all of such Additional
Guarantor's obligations under such Additional Guarantor's guarantee and the Indenture on
the terms set forth in the Indenture; and (ii) immediately before and immediately after
giving effect to such transaction on a pro forma basis, no Default or Event of Default
shall have occurred or be continuing.
Notwithstanding the foregoing, upon the sale or disposition (whether by
merger, stock purchase, asset sale or otherwise) of an Additional Guarantor or all or
substantially all of its assets to an entity which is not a Subsidiary or the
designation of a Subsidiary as an Unrestricted Subsidiary, which transaction is
otherwise in compliance with the Indenture (including, without limitation, the
provisions of Section 4.13 of the Indenture), such Additional Guarantor will be deemed
released from its obligations under its Guarantee of the Securities; provided, however,
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that any such termination shall occur only to the extent that all obligations of such
Additional Guarantor under all of its guarantees of, and under all of its pledges of
assets or other security interests which secure, any Indebtedness of either Issuer or
any of their Subsidiaries shall also terminate upon such release, sale or transfer.
SECTION 1.02. 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.
Where the context requires, the term "Guarantors" includes both the "Additional
Guarantors" (defined herein) and the "Guarantors" party to 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
Additional 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 Additional 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 Additional 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 Additional 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/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary and General
Counsel
SUN INTERNATIONAL NORTH AMERICA, INC.,
by /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Corporate Counsel
THE BANK OF NEW YORK, as Trustee
by /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President
ADDITIONAL GUARANTORS:
SUN INTERNATIONAL TIMESHARE LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
PARADISE ISLAND FUTURES LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN INTERNATIONAL DEVELOPMENT LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
PARADISE SECURITY SERVICES LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUNONLINE LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
BAHAMAS E-TRADING LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN INTERNATIONAL NETWORK DATA LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN INTERNATIONAL DEVELOPMENT (TIMESHARE) LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN VACANCES SA,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL MARKETING (UK) LTD.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL NETWORK SERVICES LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL NEVADA, INC.,
by /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Secretary
SUN INTERNATIONAL RESORTS INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
PIV, INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
ISS, INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN INTERNATIONAL MARKETING, INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN COVE CALIFORNIA, INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN COVE NEW YORK, INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN INTERNATIONAL NEW YORK, INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Secretary
BIRBO NV,
by: TMF (NETHERLANDS ANTILLES) N.V., as
Managing Director
by /s/ X. X. Xxxxxxx
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Name: X.X. Xxxxxxx
Title: Managing Director
SUN HOTELS INTERNATIONAL MANAGEMENT NV,
by: CURACAO CORPORATION COMPANY NV, as
Managing Director
by /s/ M.H. Govaard
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Name: M.H. Xxxxxxx
Title: Attorney-in-Fact A
by /s/ M.L.M. de Rooy
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Name: M.L.M. de Rooy
Title: Attorney-in-Fact B
SUNONLINE (IOM) LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN HOTELS INTERNATIONAL (BERMUDA) LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL FINANCE LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
ABERDEEN MANAGEMENT LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
PURPOSEFUL BV,
by: CITCO Trust International Management (XXX)
BV, as Director
by /s/ X.X. Xxxxxxxxxxx-Xxxxxx/X.X. Xxxxxx
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Name: X.X. Xxxxxxxxxxx-Xxxxxx / X.X.
Xxxxxx
Title: Attorney-in-Fact A
SUN INTERNATIONAL DEVELOPMENT GROUP, INC.,
by /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
