EXHIBIT (4)(e)(4)
INTER-BORROWER AGREEMENT dated as of
March 10, 1997, between SUN INTERNATIONAL
HOTELS LIMITED, an international business
company organized under the laws of the
Commonwealth of The Bahamas ("Sun"), and SUN
INTERNATIONAL NORTH AMERICA, INC., a Delaware
corporation ("SINA").
WHEREAS Sun and SINA are co-obligors on
$200 million principal amount of senior subordinated notes
(the "Notes") under an Indenture (the "Indenture") dated as
of March 10, 1997 among Sun, SINA, various subsidiaries of
Sun, as guarantors (the "Guarantors"), and the Bank of
New York, as trustee (the "Trustee");
WHEREAS Sun and SINA intend to use a significant
portion of the proceeds of the offering of the Notes to
retire certain existing indebtedness of SINA and the
remaining portion of such proceeds for various corporate
purposes of Sun and SINA; and
WHEREAS Sun and SINA wish to properly allocate
their respective responsibilities with respect to the Notes;
NOW, THEREFORE, in consideration of the mutual
covenants and undertakings contained herein and for other
good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I
Use of Proceeds
SECTION 1.01. Allocation. Upon consummation of
the sale of the Notes, Sun and SINA shall allocate the
proceeds from the sale of the Notes (the "Proceeds") between
them. The portion of the Proceeds that is used to refinance
existing indebtedness of SINA or otherwise used in SINA's
business shall be deemed the SINA Proceeds. The remaining
Proceeds shall be deemed the Sun Proceeds.
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ARTICLE II
Payment
SECTION 2.01. Several Payment Obligations. Sun
and SINA shall severally pay all interest (including
liquidated damages and additional amounts, if any) and
principal on the Notes attributable to Sun Proceeds and the
SINA Proceeds, respectively. The several obligations
hereunder shall include all obligations under the Notes and
the Indenture, including any redemption or rights of holders
of Notes to require repurchase of Notes.
SECTION 2.02. Reimbursement. If Sun or SINA
makes any payment with respect to the Notes that is greater
than its obligation set forth in Section 2.01 above, it
shall be promptly reimbursed by the other for any such
excess.
SECTION 2.03. No Limitation of Rights of
Noteholders. Nothing in this Agreement shall affect the
rights of holders of Notes to collect amounts due under the
Notes or to enforce any other obligation of Sun or SINA
under the Notes or the Indenture. The rights and
obligations set forth in this Agreement are set forth for
purposes of allocating solely as between Sun and SINA their
equitable responsibilities relative to each other with
respect to their joint obligations under the Notes and the
Indenture.
ARTICLE III
Indemnification
SECTION 3.01. Indemnification. Sun and SINA
hereby indemnify each other and their respective affiliates
from and against and agree to hold each of them harmless
from any and all damage, loss, liability and expense,
including reasonable expenses of investigation and
reasonable attorneys' fees and expenses in connection with
any action, suit or proceeding incurred or suffered by
either of them or their affiliates arising out of any breach
of any covenant or agreement made or to be performed
pursuant to this Agreement.
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SECTION 3.02. Procedures. The party seeking
indemnification (the "Indemnified Party") hereunder shall
give prompt notice to the party against whom indemnity is
sought (the "Indemnifying Party") at the assertion of any
claim, or the commencement of any suit, action or
proceeding, in respect of which indemnification may be
sought hereunder. The Indemnifying Party may, and at the
request of the Indemnified Party shall, participate in and
control the defense of any such suit, action or proceeding
at its own expense. The Indemnifying Party shall not be
liable for any settlement effected without its consent of
any claim, litigation or proceeds in respect of which
indemnification may be sought hereunder.
ARTICLE IV
Miscellaneous
SECTION 4.01. Notices. All notices, requests and
other communications hereunder shall be in writing
(including fax) and shall be sent, delivered or mailed,
addressed, or faxed:
(a) if to Sun, to:
Sun International Hotels Limited
Atlantis Hotel Executive Offices
Coral Towers
Paradise Island, The Bahamas
(T) (000) 000-0000
(F) (000) 000-0000
Attention of Xxxxxxx Xxxxx, Esq.
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
(T) (000) 000-0000
(F) (000) 000-0000
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(b) if to SINA, to:
Sun International North America, Inc.
c/x Xxxxxxx Gaming & Entertainment
0000 Xxxxxxxxx
Xxxxxxxx Xxxx, XX 00000
(T) (000) 000-0000
(F) (000) 000-0000
Attention of Mr. Xxxxxxx Xxxxxxx
Each such notice, request or other communication shall be
given (i) by hand delivery, (ii) by nationally recognized
courier service or (iii) by fax, receipt confirmed. Each
such notice, request or communication shall be effective
(A) if delivered by hand or by nationally recognized courier
service, when delivered at the address specified in this
Section 4.01 (or in accordance with the latest unrevoked
written direction from such party) and (B) if given by fax,
when such fax is transmitted to the fax number specified in
this Section 4.01 (or in accordance with the latest
unrevoked written direction from such party), and the
appropriate confirmation is received.
SECTION 4.02. Interpretation. The headings
contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words
"included", "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words
"without limitation".
SECTION 4.03. Severability. The provisions of
this Agreement shall be deemed severable and the invalidity
or unenforceability of any provision shall not affect the
validity or enforceability of the other provisions hereof.
If any provision of this Agreement, or the application
thereof to any person or entity or any circumstance, is
found to be invalid or unenforceable in any jurisdiction,
(a) a suitable and equitable provision shall be substituted
therefor in order to carry out, so far as may be valid and
enforceable, the intent and purpose of such invalid or
unenforceable provision and (b) the remainder of this
Agreement and the application of such provision to other
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persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or
unenforceability affect the validity or enforceability of
such provision, or the application thereof, in any other
jurisdiction.
SECTION 4.04. Counterparts. This Agreement may
be executed in one or more counterparts, each of which shall
be deemed an original and all of which shall, taken
together, be considered one and the same agreement, it being
understood that both parties need not sign the same
counterpart.
SECTION 4.05. Entire Agreement; No Third Party
Beneficiaries. This Agreement together with the Indenture
(a) constitutes the entire agreement and supersedes all
prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof
and (b) is not intended to confer upon any person, other
than the parties hereto, any rights or remedies hereunder.
SECTION 4.06. Further Assurances. Each party
shall execute, deliver, acknowledge and file such other
documents and take such further actions as may be reasonably
requested from time to time by the other party hereto to
give effect to and carry out the transactions contemplated
herein.
SECTION 4.07. Governing Law; Equitable Remedies.
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York,
regardless of the laws that might otherwise govern under
applicable principles of conflicts of law.
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IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed and delivered, all as of the
date first set forth above.
SUN INTERNATIONAL HOTELS
LIMITED,
by
Name:
Title:
SUN INTERNATIONAL NORTH
AMERICA, INC.,
by
Name:
Title:
