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Exhibit 4.3
SUN INTERNATIONAL HOTELS LIMITED
SUN INTERNATIONAL NORTH AMERICA, INC.
Issuer
and
THE BANK OF NEW YORK
Trustee
SECOND SUPPLEMENTAL INDENTURE
Dated as of May 20, 2002
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8-7/8% SENIOR SUBORDINATED NOTES DUE 2011
Supplementing the Indenture dated as of August 14, 2001, 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,
as amended and supplemented to date
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SECOND SUPPLEMENTAL INDENTURE dated as of May 20, 2002, 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") and The Bank of New York (the "Trustee"), as Trustee
under the Indenture referred to herein.
W I T N E S S E T H:
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WHEREAS, the Issuers, the Guarantors, and the Trustee heretofore
executed and delivered an Indenture dated as of August 14, 2001, as amended by
the Supplemental Indenture dated September 19, 2001 (as amended, the
"Indenture"), in respect of the Issuers' 8-7/8% Senior Subordinated Notes due
2011;
WHEREAS, the Indenture provides that, subject to Section 4.10 of the
Indenture and applicable law, the Issuers may issue Additional Securities under
the Indenture and that the Securities issued on the Issue Date and any
Additional Securities subsequently issued shall be treated as a single class for
all purposes under the Indenture;
WHEREAS, pursuant to that certain Purchase Agreement, dated as of May
9, 2002, by and between the Issuers, the Guarantors and the initial purchasers
party thereto, the Issuers have agreed to issue $200 million of Additional
Securities (the "Offered Securities");
WHEREAS, the Indenture provides that the Issuers or any of the
Guarantors and the Trustee may amend or supplement the Indenture, the Securities
or any Guarantee, without the consent of any Holder of a Security to provide for
the issuance of Additional Securities in accordance with the limitations set
forth in the Indenture as of the Issue Date;
WHEREAS, in connection with the issuance of the Offered Securities,
the Issuers desire to amend the Indenture as set forth in Article I hereof;
WHEREAS, the Indenture provides that the Issuers or any of the
Guarantors and the Trustee may amend or supplement the Indenture, the Securities
or any Guarantee, without the consent of any Holder of a Security to cure any
ambiguity, defect or inconsistency;
WHEREAS, the Issuers desire to amend the Indenture as provided in this
Second Supplemental Indenture to cure certain defects in the Indenture; and
WHEREAS, this Second Supplemental Indenture has been duly authorized
by all necessary corporate action on the part of the Issuers.
NOW, THEREFORE, the Issuers and the Trustee agree as follows for the
equal and ratable benefit of the Holders of the Securities:
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ARTICLE I
AMENDMENTS
SECTION 1.1 Definitions.
Section 1.1 of the Indenture is amended by replacing the definitions
of "Exchange Offer" and "Registration Rights Agreement" in their entirety with
the following new definitions:
"Exchange Offer" means (i) in respect of the Original Securities and
Guarantees thereof issued on the Issue Date, the offer by the Issuers and the
Guarantors to exchange the Series B Securities and Guarantees thereof for the
Original Securities and Guarantees thereof issued on the Issue Date and (ii) in
respect of the Additional Securities and Guarantees thereof issued on May 20,
2002, the offer by the Issuers and the Guarantors to exchange the Series B
Securities and Guarantees thereof for such Additional Securities and Guarantees
thereof, in each case made pursuant to the applicable Registration Rights
Agreement.
"Registration Rights Agreement" means (i) in respect of the Original
Securities and Guarantees thereof issued on the Issue Date, the Registration
Rights Agreement by and among the Issuers, the Guarantors and the Initial
Purchasers, dated as of the Issue Date, and (ii) in respect of the Additional
Securities and Guarantees thereof issued on May 20, 2002, the Registration
Rights Agree ment, by and among the Issuers, the Guarantors and the Initial
Purchasers, dated as of May 20, 2002.
Section 1.1 of the Indenture is hereby amended by replacing the
penultimate sentence of the definition of "Indebtedness" with the following new
sentence, in order to clarify who shall determine the Fair Market Value of
Disqualified Capital Stock:
"For purposes hereof, the "maximum fixed repurchase price" of any
Disqualified Capital Stock which does not have a fixed repurchase price shall be
calculated in accordance with the terms of such Disqualified Capital Stock as if
such Disqualified Capital Stock were purchased on any date on which Indebtedness
shall be required to be determined pursuant to this Indenture, and if such price
is based upon, or measured by, the Fair Market Value of such Disqualified
Capital Stock, such Fair Market Value to be determined in good faith by the
Board of Directors of the issuer of such Disqualified Capital Stock."
SECTION 1.2 Execution and Authentication. Section 2.2 of the Indenture
is hereby amended by replacing the proviso in the fourth paragraph with the
following proviso:
"provided that such Series B Securities shall be issuable only upon
the valid surrender for cancellation of Original Securities or Additional
Securities of a like aggregate principal amount in accordance with the
applicable Registration Rights Agreement."
SECTION 1.3 Trustee's Acceptance. The Trustee hereby accepts this
Second Supplemental Indenture and agrees to perform the same under the terms and
conditions set forth in the Indenture.
ARTICLE II
Miscellaneous
SECTION 2.1. Interpretation. Upon execution and delivery of this
Second Supplemental Indenture, the Indenture shall be modified and amended in
accordance with this Second 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 Second
Supplemental Indenture will
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control. The Indenture, as modified and amended by this Second 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 Second Supplemental Indenture, the provisions of the
Indenture, as modified and amended by this Second Supplemental Indenture, shall
control.
SECTION 2.2. Conflict with Trust Indenture Act. If any provision of
this Second 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 Second Supplemental Indenture, the provision of the TIA shall
control. If any provision of this Second 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 Second Supplemental Indenture, as the case may be.
SECTION 2.3. Severability. In case any provision in this Second
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 2.4. Terms Defined in the Indenture. All capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the
Indenture.
SECTION 2.5. Headings. The Article and Section headings of this
Second 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 2.6. Benefits of Supplemental Indenture, etc. Nothing in this
Second 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 Second
Supplemental Indenture or the Securities.
SECTION 2.7. Successors. All agreements of the Issuers in this Second
Supplemental Indenture shall bind their successors. All agreements of the
Trustee in this Second Supplemental Indenture shall bind its successors.
SECTION 2.8. 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 Second 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 2.9. Certain Duties and Responsibilities of the Trustee. In
entering into this Second 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 Second 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 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 Second Supplemental Indenture,
and irrevocably accepts for itself and in respect of its property,
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generally and unconditionally, jurisdiction of the aforesaid courts. The Issuers
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 Second Supplemental Indenture. Each signed copy
or counterpart shall be an original, but all of them together shall represent
the same agreement.
(signature pages follow)
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IN WITNESS WHEREOF, each party hereto has caused this Second
Supplemental Indenture to be signed by its officer thereto duly authorized as of
the date first written above.
SUN INTERNATIONAL HOTELS LIMITED
By: /s/ John R. Allison
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Name: John R. Allison
Title: Executive Vice President
and Chief Financial Officer
By: /s/ Charles D. Adamo
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Name: Charles D. Adamo
Title: Executive Vice President
and General Counsel
SUN INTERNATIONAL NORTH AMERICA, INC.
By: /s/ John R. Allison
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Name: John R. Allison
Title: Executive Vice President
and Chief Financial Officer
By: /s/ Charles D. Adamo
----------------------------------
Name: Charles D. Adamo
Title: Executive Vice President
and General Counsel
THE BANK OF NEW YORK, as Trustee
By: /s/ Mary LaGumina
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Name: Mary LaGumina
Title: Vice President
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