Exhibit 99(c)
=======================================================================================
SUN INTERNATIONAL HOTELS LIMITED
SUN INTERNATIONAL NORTH AMERICA, INC.
As Issuers
-----------------------------------------------------------------
8.625% Senior Subordinated Notes due 2007
-----------------------------------------------------------------
SECOND SUPPLEMENTAL INDENTURE
Dated as of September 19, 2001
-----------------------------------------------------------------
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
-----------------------------------------------------------------
THE BANK OF NEW YORK
As Trustee
-----------------------------------------------------------------
=======================================================================================
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 December 10, 1997, in respect of the Issuers'
8.625% 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. Any or all of the provisions of this Article I shall be
applicable to the Securities of any series for which such provision or provisions are
designated as applicable pursuant to the terms of Section 2.3 of the Indenture. In
addition, it shall be established prior to the issuance of any series of Securities,
pursuant to Section 2.3 of the Indenture, whether any guarantee or guarantees other
than or in addition to those specified below shall be applicable to such series.
Provisions of this Article I not designated, pursuant to Section 2.3 of the
Indenture, as applying to a particular series of Securities shall have no force and
effect as to the Securities of such series. In each provision of this Article I,
unless the context otherwise requires, all references to Securities and any other
defined terms refer only to a single series of Securities for which such provision
has been designated, pursuant to Section 2.3 of the Indenture, as being applicable.
a. (i) Guarantees.
-----------
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 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, any 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.
------------------------------------
To evidence its Guarantee set forth in Section 1.01, each Additional
Guarantor agrees that a notation of such Guarantee substantially in the form
established pursuant to Section 2.3 of the Indenture 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 an Officer 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 applicable
Securities notwithstanding any failure to endorse on each such 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.
--------------------------
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.
-------------------------------------------------------------------
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, to the extent applicable), such
Additional Guarantor will be deemed released from its obligations under its Guarantee
of the Securities; provided, however, 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
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary and General
Counsel
SUN INTERNATIONAL NORTH AMERICA, INC.,
by /s/ Xxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Corporate Counsel
THE BANK OF NEW YORK, as Trustee
by /s/ Xxxx Xxxxxxxx
----------------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
ADDITIONAL GUARANTORS:
SUN INTERNATIONAL TIMESHARE LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
PARADISE ISLAND FUTURES LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN INTERNATIONAL DEVELOPMENT LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
PARADISE SECURITY SERVICES LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUNONLINE LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
BAHAMAS E-TRADING LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN INTERNATIONAL NETWORK DATA LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN INTERNATIONAL DEVELOPMENT (TIMESHARE) LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Assistant Secretary
SUN VACANCES SA,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL MARKETING (UK) LTD.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL NETWORK SERVICES LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL NEVADA, INC.,
by /s/ Xxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Secretary
SUN INTERNATIONAL RESORTS INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
PIV, INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
ISS, INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN INTERNATIONAL MARKETING, INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN COVE CALIFORNIA, INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN COVE NEW YORK, INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
SUN INTERNATIONAL NEW YORK, INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
BIRBO NV,
by: TMF (NETHERLANDS ANTILLES) N.V., as
Managing Director
by /s/ X. X. Xxxxxxx
----------------------------------------------
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
----------------------------------------------
Name: M.H. Govaard
Title: Attorney-in-Fact A
by /s/ M.L.M. de Rooy
----------------------------------------------
Name: M.L.M. de Rooy
Title: Attorney-in-Fact B
SUNONLINE (IOM) LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN HOTELS INTERNATIONAL (BERMUDA) LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
SUN INTERNATIONAL FINANCE LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
ABERDEEN MANAGEMENT LIMITED,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
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
----------------------------------------------
Name: X.X. Xxxxxxxxxxx-Xxxxxx / X.X.
Xxxxxx
Title: Attorney-in-Fact A
SUN INTERNATIONAL DEVELOPMENT GROUP, INC.,
by /s/ Xxxxxxx X. Xxxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Authorized Signatory
