SUN INTERNATIONAL HOTELS LIMITED
and
SUN INTERNATIONAL NORTH AMERICA, INC.,
Issuers,
and
THE GUARANTORS NAMED HEREIN
and
[ ],
Trustee
----------------
INDENTURE
Dated as of [ ]
Page 2
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
- ------- -------
310(a)(1)............................................................... 7.10
(a)(2)............................................................... 7.10
(a)(3)............................................................... N.A.
(a)(4)............................................................... N.A.
(a)(5)............................................................... 7.10
(b) ............................................................... 7.8;
............................................................... 7.10;
................................................................ 13.2
(c) ............................................................... N.A.
311(a) ............................................................... 7.11
(b) ............................................................... 7.11
(c) ............................................................... N.A.
312(a) ............................................................... 2.5
(b) ............................................................... 13.3
(c) ............................................................... 13.3
313(a) ............................................................... 7.6
(b)(1)............................................................... N.A.
(b)(2)............................................................... 7.6
(c) ............................................................... 7.6;
............................................................... 13.2
(d) ............................................................... 7.6
314(a) ............................................................... 4.7;
............................................................... 4.6
(b) ............................................................. N.A.
(c)(1)............................................................... 2.2;
............................................................... 7.2;
............................................................... 13.4
(c)(2)............................................................... 7.2;
............................................................... 13.4
(c)(3)............................................................... N.A
(d) ................................................................ N.A
(e) ............................................................... 13.5
(f) ............................................................... N.A.
315(a) ............................................................... 7.1(b)
(b) ............................................................... 7.5;
............................................................... 7.6;
............................................................... 13.2
(c) ............................................................... 7.1(a)
(d) ............................................................... 7.2;
............................................................... 6.11;
............................................................... 7.1(c)
(e) ............................................................... 6.14
316(a)(last sentence)................................................... 2.9
(a)(1)(A) ......................................................... 6.11
(a)(1)(B) ........................................................... 6.12
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(a)(2)............................................................... N.A.
(b) ............................................................... 6.12;
............................................................... 6.8
317(a)(1)............................................................... 6.3
(a)(2)............................................................... 6.4
(b) ................................................................ 2.4
318(a) ............................................................... 13.1
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
Page 4
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.....................................................
Section 1.2 Incorporation by Reference of TIA...............................
Section 1.3 Rules of Construction...........................................
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating.................................................
Section 2.2 Execution and Authentication; Denominations.....................
Section 2.3 Securities Issuable in Series; Registrar and
Paying Agent..................................................
Section 2.4 Paying Agent to Hold Assets in Trust............................
Section 2.5 Securityholder Lists............................................
Section 2.6 Transfer and Exchange...........................................
Section 2.7 Replacement Securities..........................................
Section 2.8 Outstanding Securities..........................................
Section 2.9 Treasury Securities.............................................
Section 2.10 Temporary Securities............................................
Section 2.11 Cancellation....................................................
Section 2.12 Defaulted Interest..............................................
Section 2.13 CUSIP Numbers...................................................
ARTICLE III
REDEMPTION
Section 3.1 Right of Redemption ............................................
Section 3.2 Redemption Pursuant to Gaming Laws..............................
Section 3.3 Notices to Trustee..............................................
Section 3.4 Selection of Securities to Be Redeemed..........................
Section 3.5 Notice of Redemption............................................
Section 3.6 Effect of Notice of Redemption..................................
Section 3.7 Deposit of Redemption Price.....................................
Section 3.8 Securities Redeemed in Part.....................................
Section 3.9 Applicability of Article........................................
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities...........................................
Section 4.2 Maintenance of Office or Agency.................................
Section 4.3 Limitation on Restricted Payments...............................
Section 4.4 Corporate Existence.............................................
Section 4.5 Payment of Taxes and Other Claims...............................
Section 4.6 Compliance Certificate; Notice of Default.......................
Section 4.7 Reports.........................................................
Section 4.8 Waiver of Stay, Extension or Usury Laws.........................
Section 4.9 Limitation on Transactions with Affiliates......................
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Section 4.10 Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital Stock...................
Section 4.11 Limitation on Dividends and Other Payment
Restrictions Affecting Subsidiaries...........................
Section 4.12 Limitation on Liens Securing Indebtedness.......................
Section 4.13 Limitation on Sale of Assets and
Subsidiary Stock..............................................
Section 4.14 Limitation on Layering Indebtedness.............................
Section 4.15 Limitation on Lines of Business.................................
Section 4.16 Limitation on Status as Investment Company......................
Section 4.17 Future Subsidiary Guarantors....................................
Section 4.18 Payment for Consent.............................................
Section 4.19 Suspended Covenants.............................................
Section 4.20 Payment of Additional Amounts...................................
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 Limitation on Merger, Sale or Consolidation.....................
Section 5.2 Successor Corporation Substituted...............................
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1 Events of Default...............................................
Section 6.2 Acceleration of Maturity Date; Rescission
and Annulment.................................................
Section 6.3 Collection of Indebtedness and Suits for
Enforcement by Trustee........................................
Section 6.4 Trustee May File Proofs of Claim................................
Section 6.5 Trustee May Enforce Claims without Possession
of Securities.................................................
Section 6.6 Priorities......................................................
Section 6.7 Limitation on Suits.............................................
Section 6.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest...............................
Section 6.9 Rights and Remedies Cumulative..................................
Section 6.10 Delay or Omission Not Waiver....................................
Section 6.11 Control by Holders..............................................
Section 6.12 Waiver of Past Default..........................................
Section 6.13 Undertaking for Costs...........................................
Section 6.14 Restoration of Rights and Remedies..............................
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee...............................................
Section 7.2 Rights of Trustee...............................................
Section 7.3 Individual Rights of Trustee....................................
Section 7.4 Trustee's Disclaimer............................................
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Section 7.5 Notice of Defaults..............................................
Section 7.6 Reports by Trustee to Holders...................................
Section 7.7 Compensation and Indemnity......................................
Section 7.8 Replacement of Trustee..........................................
Section 7.9 Successor Trustee by Merger, etc................................
Section 7.10 Eligibility; Disqualification...................................
Section 7.11 Preferential Collection of Claims Against
Issuers.......................................................
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or
Covenant Defeasance...........................................
Section 8.2 Legal Defeasance and Discharge..................................
Section 8.3 Covenant Defeasance.............................................
Section 8.4 Conditions to Legal or Covenant Defeasance......................
Section 8.5 Deposited Cash and U.S. Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions...........
Section 8.6 Repayment to Issuers............................................
Section 8.7 Reinstatement...................................................
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures without Consent of
Holders.......................................................
Section 9.2 Amendments, Supplemental Indentures and
Waivers with Consent of Holders...............................
Section 9.3 Compliance with TIA.............................................
Section 9.4 Revocation and Effect of Consents...............................
Section 9.5 Notation on or Exchange of Securities...........................
Section 9.6 Trustee to Sign Amendments, etc.................................
ARTICLE X
RIGHT TO REQUIRE REPURCHASE
Section 10.1 Repurchase of Securities at Option
of the Holder upon Change of Control..........................
ARTICLE XI
GUARANTEES
Section 11.1 Guarantees......................................................
Section 11.2 Execution and Delivery of Guarantee.............................
Section 11.3 Certain Bankruptcy Events.......................................
Section 11.4 Limitation on Merger, Consolidation, etc. of
Guarantors....................................................
Section 11.5 Future Guarantors...............................................
ARTICLE XII
SUBORDINATION
Section 12.1 Securities Subordinated to Senior Debt..........................
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Section 12.2 No Payment on Securities in Certain
Circumstances.................................................
Section 12.3 Securities Subordinated to Prior Payment
of All Senior Debt on Dissolution, Liquidation
or Reorganization.............................................
Section 12.4 Securityholders to Be Subrogated to Rights of
Holders of Senior Debt........................................
Section 12.5 Obligations of the Issuers Unconditional........................
Section 12.6 Trustee Entitled to Assume Payments Not
Prohibited in Absence of Notice...............................
Section 12.7 Application by Trustee of Assets
Deposited with It.............................................
Section 12.8 Subordination Rights Not Impaired by
Acts or Omissions of the Issuers, Guarantors
or Holders of Senior Debt, etc.;
Modifications.................................................
Section 12.9 Securityholders Authorize Trustee to
Effectuate Subordination of Securities........................
Section 12.10 Right of Trustee to Hold Senior Debt...........................
Section 12.11 Article XII Not to Prevent Events of Default...................
Section 12.12 No Fiduciary Duty of Trustee to Holders of
Senior Debt...................................................
ARTICLE XIII
MISCELLANEOUS
Section 13.1 TIA Controls...................................................
Section 13.2 Notices........................................................
Section 13.3 Communications by Holders with Other Holders...................
Section 13.4 Certificate and Opinion as to Conditions
Precedent....................................................
Section 13.5 Statements Required in Certificate or Opinion..................
Section 13.6 Rules by Trustee, Paying Agent, Registrar......................
Section 13.7 Legal Holidays.................................................
Section 13.8 Governing Law..................................................
Section 13.9 No Adverse Interpretation of Other Agreements..................
Section 13.10 No Recourse Against Others.....................................
Section 13.11 Successors.....................................................
Section 13.12 Duplicate Originals............................................
Section 13.13 Severability...................................................
Section 13.14 Table of Contents, Headings, etc...............................
Page 8
INDENTURE, dated as of [ ], among Sun International Hotels
Limited, an international business company organized under the laws of the
Commonwealth of The Bahamas ("Sun International"), Sun International North
America, Inc., a Delaware corporation and a wholly owned subsidiary of Sun
International ("SINA" and, together with Sun International, the "Issuers"), the
Guarantors referred to below and [ ], a [ ], as Trustee.
The Issuers have duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of their debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Securities"), as in
this Indenture provided.
The Guarantors have duly authorized the execution and delivery of this
Indenture to provide for the Guarantees of the Securities, if any, provided for
herein.
All things necessary to make this Indenture a valid agreement of the
Issuers and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Securities by the holders
thereof, the Issuers, the Guarantors and the Trustee covenant and agree with
each other, for the benefit of the respective Holders from time to time of the
Securities or any series thereof, as follows:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Acceleration Notice" shall have the meaning specified in Section 6.2.
"Acquired Indebtedness" means Indebtedness or Disqualified Capital Stock
of any person existing at the time such person becomes a Subsidiary of either of
the Issuers or is merged or consolidated into or with either of the Issuers or
any of their Subsidiaries.
Page 9
"Acquisition" means the purchase or other acquisition of any person or all
or substantially all the assets of any person by any other person, or the
acquisition of assets that constitute all or substantially all of an operating
unit of business, whether by purchase, merger, consolidation, or other transfer,
and whether or not for consideration.
"Additional Amounts" shall have the meaning specified in Section 4.20.
"Affiliate" means any person directly or indirectly controlling or
controlled by or under direct or indirect common control with Sun International.
For purposes of this definition, the term "control" means the power to direct
the management and policies of a person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise, provided, that, with respect to ownership interest in Sun
International and its Subsidiaries a Beneficial Owner of 10% or more of the
total voting power normally entitled to vote in the election of directors,
managers or trustees, as applicable, shall for such purposes be deemed to
constitute control.
"Affiliate Transaction" shall have the meaning specified in Section 4.9.
"Agent" means any Registrar, Paying Agent or co- Registrar.
"Asset Sale" shall have the meaning specified in Section 4.13.
"Asset Sale Offer" shall have the meaning specified in Section 4.13.
"Asset Sale Offer Amount" shall have the meaning specified in Section
4.13.
"Asset Sale Offer Price" shall have the meaning specified in Section 4.13.
"Average Life" means, as of the date of determination, with respect to any
security or instrument, the quotient obtained by dividing (i) the sum of the
products of (a) the number of years from the date of determination to the date
or dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (ii) the sum of all such principal (or redemption)
payments.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
Page 10
Federal, state or foreign law for the relief of debtors.
"Beneficial Owner" or "beneficial owner" with respect to a series of
Securities has the meaning attributed to it in Rules 13d-3 and 13d-5 under the
Exchange Act (as in effect on the Issue Date of such series), whether or not
applicable, except that a "person" shall be deemed to have "beneficial
ownership" of all shares that any such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time.
"Board of Directors" means, with respect to any person, the Board of
Directors of such person or any committee of the Board of Directors of such
person authorized, with respect to any particular matter, to exercise the power
of the Board of Directors of such person.
"Board Resolution" means, with respect to any person, a duly adopted
resolution of the Board of Directors of such person.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York, New York or the
New York Stock Exchange are authorized or obligated by law or executive order to
close.
"Capital Stock" means, with respect to any corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not otherwise itself capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that corporation.
"Capitalized Lease Obligation" means, as applied to any person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the rental obligations of such person, as lessee, in conformity
with GAAP, is required to be capitalized on the balance sheet of such person.
"Cash" or "cash" means such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public or private debts.
"Cash Equivalent" means (a) (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof), (ii) time deposits and
certificates of deposit of any domestic commercial bank of recognized standing
having capital and surplus in excess of $500 million or (iii)
Page 11
commercial paper issued by others rated at least A-1 or the equivalent thereof
by Standard & Poor's Corporation or at least P-1 or the equivalent thereof by
Moody's Investors Service, Inc., and in the case of each of (i), (ii) and (iii)
above maturing within one year after the date of acquisition or (b) shares of
money market mutual funds or similar funds having assets in excess of $500
million.
"Change of Control" means, with respect to a series of Securities, (i) Sun
International ceases to be the "beneficial owner," directly or indirectly, of
100% of the Equity Interests of SINA; (ii) any sale, transfer or other
conveyance, whether direct or indirect, of all or substantially all of the
assets, on a consolidated basis, of Sun International or SINA, in one
transaction or a series of related transactions (in each case other than to a
person that is a Permitted Holder); (iii) any merger or consolidation of Sun
International with or into any person if, immediately after giving effect to
such transaction, any "person" or "group" (as such terms are used for purposes
of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable)
(other than a Permitted Holder) is or becomes the "beneficial owner," directly
or indirectly, of more than 50% of the total voting power in the aggregate
normally entitled to vote in the election of directors, managers, or trustees,
as applicable, of the surviving entity or entities; (iv) any "per son" or
"group" (as such terms are used for purposes of Sections 13(d) and 14(d) of the
Exchange Act, whether or not applicable) (other than a Permitted Holder) is or
becomes the "beneficial owner," directly or indirectly, of more than 50% of the
total voting power in the aggregate of all classes of Capital Stock of Sun
International then outstanding normally entitled to vote in elections of
directors; (v) during any period of 12 consecutive months after the Issue Date
of such series, individuals who at the beginning of any such 12-month period
constituted the Board of Directors of Sun International or SINA (together with
any new directors whose election by such Board or whose nomination for election
by the shareholders of Sun International or SINA, as applicable, was approved by
a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Board of Directors of Sun International or SINA then in office;
or (vi) the adoption of a plan relating to the liquidation or dissolution of
either of the Issuers.
"Change of Control Offer" shall have the meaning specified in Section
10.1.
"Change of Control Purchase Date" shall have the meaning
Page 12
specified in Section 10.1.
"Change of Control Purchase Price" shall have the meaning specified in
Section 10.1.
"Change of Control Triggering Event" shall be deemed to have occurred with
respect to a series of Securities if either of the Rating Agencies shall
downgrade or withdraw their rating of the Securities of such series as a result
of, or, in any case, within 90 days of, a Change of Control.
"Consolidated Coverage Ratio" of any person on any date of determination
(a "Transaction Date") means the ratio, on a pro forma basis, of (a) the
aggregate amount of Consolidated EBITDA of such person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and businesses permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided, that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Consolidated Coverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness or issuance of any Disqualified
Capital Stock during the Reference Period or subsequent to the Reference Period
and on or prior to the Transaction Date (and the application of the proceeds
therefrom to the extent used to refinance or retire other Indebtedness) shall
be assumed to have occurred on the first day of such Reference Period, and (iv)
the Consolidated Fixed Charges of such person attributable to interest on any
Indebtedness or dividends on any Disqualified Capital Stock bearing a floating
interest (or dividend) rate shall be computed on a pro forma basis as if the
rate in effect on the Transaction Date had been the applicable rate for the
entire period, unless such person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall remain in effect for the
12-month period immediately following the Transaction Date) that has the effect
of fixing the interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
"Consolidated EBITDA" means, with respect to any person, for
Page 13
any period, the Consolidated Net Income of such person for such period adjusted
to add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of (i) Consolidated
income tax expense, (ii) Consolidated depreciation and amortization expense,
provided that consolidated depreciation and amortization of a Subsidiary that is
a less than wholly owned Subsidiary shall only be added to the extent of the
equity interest of such person in such Subsidiary and (iii) Consolidated Fixed
Charges, less any non-cash interest income.
"Consolidated Fixed Charges" of any person means, for any period, the
aggregate amount (without duplication and deter mined in each case in accordance
with GAAP) of (a) interest expensed or capitalized, paid, accrued, or scheduled
to be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of such person and its
Consolidated Subsidiaries during such period, including (i) original issue
discount and non-cash interest payments or accruals on any Indebtedness, (ii)
the interest portion of all deferred payment obligations and (iii) all
commissions, discounts and other fees and charges owed with respect to bankers'
acceptances and letters of credit financings and currency and Interest Swap and
Hedging Obligations, in each case to the extent attributable to such period, but
excluding interest payments on SINA's First Mortgage Non-Recourse Pass Through
Notes due June 30, 2000, and (b) the amount of dividends accrued or payable (or
guaranteed) by such person or any of its Consolidated Subsidiaries in respect of
preferred stock (other than by Subsidiaries of such person to such person or
such person's wholly owned Subsidiaries). For purposes of this definition, (x)
interest on a Capitalized Lease Obligation shall be deemed to accrue at an
interest rate reasonably determined by Sun International to be the rate of
interest implicit in such Capitalized Lease Obligation in accordance with GAAP
and (y) interest expense attributable to any Indebtedness represented by the
guaranty by such person or a Subsidiary of such person of an obligation of
another person shall be deemed to be the interest expense attributable to the
Indebtedness guaranteed.
"Consolidated Net Income" means, with respect to any person for any
period, the net income (or loss) of such person and its Consolidated
Subsidiaries (determined on a consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication): (a) all gains (but not losses)
which are either extraordinary (as determined in accordance with GAAP), unusual
or nonrecurring (including any gain from the sale or other disposition of assets
or currency transactions outside the ordinary course of business or from the
issuance or sale of any
Page 14
capital stock), (b) the net income, if positive, of any person, other than a
Consolidated Subsidiary, in which such person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of any
dividends or distributions actually paid in cash to such person or a wholly
owned Consolidated Subsidiary of such person during such period, but in any case
not in excess of such person's pro rata share of such person's net income for
such period, (c) the net income or loss of any person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition, (d)
the net income, if positive, of any of such person's Consolidated Subsidiaries
to the extent that the declaration or payment of dividends or similar
distributions is not at the time permitted by operation of the terms of its
charter or bylaws or any other agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such Consolidated
Subsidiary, except for existing restrictions under the Credit Agreement and (e)
the net income attributable to the lease with respect to the 10 acres under the
Showboat Casino Hotel in Atlantic City, New Jersey.
"Consolidated Net Worth" of any person at any date means the aggregate
consolidated stockholders' equity of such person (plus amounts of equity
attributable to preferred stock) and its Consolidated Subsidiaries, as would be
shown on the consolidated balance sheet of such person prepared in accordance
with GAAP, adjusted to exclude (to the extent included in calculating such
equity), the amount of any such stockholders' equity attributable to
Disqualified Capital Stock or treasury stock of such person and its Consolidated
Subsidiaries.
"Consolidated Subsidiary" means, for any person, each Subsidiary of such
person (whether now existing or hereafter created or acquired) the financial
statements of which are consolidated for financial statement reporting purposes
with the financial statements of such person in accordance with GAAP.
"Credit Agreement" means the second amended and restated revolving credit
agreement dated as of August 12, 1997, by and among Sun International Bahamas
Limited, Sun International, certain of Sun International's subsidiaries,
certain financial institutions and The Bank of Nova Scotia, as administrative
and collateral agent, providing for an aggregate $375 million revolving credit
facility (excluding any amounts with respect to Interest Swap and Hedging
Obligations complying with the provisions set forth below) (which amount may be
increased to $500 million upon the later of the Paradise Island Expansion
Opening and December 31, 1998), including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as such credit agreement and/or
Page 15
related documents may be amended, restated, supplemented, renewed, replaced or
otherwise modified from time to time whether or not with the same agent,
trustee, representative lenders or holders, and, subject to the proviso to the
next succeeding sentence, irrespective of any changes in the terms and
conditions thereof. Without limiting the generality of the foregoing, the term
"Credit Agreement" shall include agreements in respect of Interest Swap and
Hedging Obligations with lenders party to the Credit Agreement or their
affiliates entered into for bona fide hedging purposes and not entered into for
speculative purposes and shall also include any amendment, amendment and
restatement, renewal, extension, restructuring, supplement or modification to
any Credit Agreement and all refundings, refinancings and replacements of any
Credit Agreement, including any agreement (i) extending or shortening the
maturity of any Indebtedness incurred thereunder or contemplated thereby, (ii)
adding or deleting borrowers or guarantors thereunder, so long as borrowers and
issuers include one or more of Sun International and its Subsidiaries and their
respective successors and assigns, (iii) in creasing the amount of Indebtedness
incurred thereunder or available to be borrowed thereunder, provided that on the
date such Indebtedness is incurred it would not be prohibited by clause (a) of
the definition of "Permitted Indebtedness," or (iv) otherwise altering the terms
and conditions thereof in a manner not prohibited by the terms hereof.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Debt Incurrence Ratio" shall have the meaning specified in Section 4.10.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Defeased Securities" shall have the meaning specified in Section 8.2.
"Definitive Securities" means any security in the form established
pursuant to Section 2.1 which is registered on the books of the Registrar.
"Depository" means, with respect to a series of Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.3
as the Depository with respect to such series of Securities, until a successor
shall have been appointed and become such pursuant to the applicable provision
of this Indenture, and, thereafter, "Depository" shall mean or include such
successor.
Page 16
"Disqualified Capital Stock" means, with respect to a series of
Securities, (i) except as set forth in (ii), with respect to any person, Equity
Interests of such person that, by its terms or by the terms of any security into
which it is convertible, exercisable or exchangeable, is, or upon the happening
of an event or the passage of time would be, required to be redeemed or
repurchased (including at the option of the holder thereof) by such person or
any of its Subsidiaries, in whole or in part, on or prior to the Stated Maturity
of such series of Securities and (ii) with respect to any Subsidiary of such
person (other than the Guarantors), any Equity Interests other than any common
equity with no preference, privileges, or redemption or repayment provisions.
"Equity Interest" of any person means any shares, interests,
participations or other equivalents (however designated) in such person's
equity, and shall in any event include any Capital Stock issued by, or
partnership or membership interests in, such person.
"Event of Default" shall have the meaning specified in Section 6.1.
"Event of Loss" means, with respect to any property or asset, any (i)
loss, destruction or damage of such property or asset or (ii) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Exempted Affiliate Transaction" means transactions solely between Sun
International and any of its wholly owned Subsidiaries or solely among wholly
owned Subsidiaries of Sun International.
"FF&E Indebtedness" means any Indebtedness of a person to any seller or
other person incurred to finance the acquisition (including in the case of a
Capitalized Lease Obligation, the lease) of any gaming facility or hotel or
gaming or hotel related fixtures, furniture or equipment which is directly
related to a Related Business of Sun International and which is incurred
concurrently with such acquisition and is secured only by the assets so
financed.
"GAAP" means United States generally accepted accounting principles set
forth in the opinions and pronouncements of the
Page 17
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession in the United States as in
effect on the Issue Date.
"Gaming Authority" means any agency, authority, board, bureau, commission,
department, office or instrumentality of any nature whatsoever of the United
States or a foreign government, any state, province or any city or other
political subdivision or otherwise and whether now or hereafter in existence, or
any officer or official thereof, responsible for gaming licenses held by Sun
International or a Subsidiary of Sun International.
"Global Security" means, with respect to any series of Securities issued
hereunder, a Security that is executed by the Issuers and authenticated and
delivered by the Trustee to the Depository or pursuant to the Depository's
instruction, all in accordance with this Indenture and any Indentures
supplemental hereto, or resolution of the Board of Directors and set forth in an
Officers' Certificate, which shall be registered in the name of the Depository
or its nominee and which shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, all the outstanding Securities of
such series or any portion thereof, in either case having the same terms,
including the same original issue date, date or dates on which principal is due
and interest rate or method of determining interest.
"Guarantee" shall have the meaning provided in Section 11.1.
"Guarantors" means Sun International Bahamas Limited, Paradise Island
Limited, Island Hotel Company Limited, Paradise Beach Inn Limited, Paradise
Enterprises Limited, Paradise Acquisitions Limited, Sun International
Management Limited, Sun Cove Limited, Resorts International Hotel, Inc., and
GGRI, Inc. and any future newly created, acquired or designated Subsidiary of
Sun International.
"Holder" or "Securityholder" means the person in whose name a Security is
registered on the Registrar's books.
"incur" shall have the meaning specified in Section 4.10.
"Incurrence Date" shall have the meaning specified in Section 4.10.
"Indebtedness" of any person means, without duplication, (a) all
liabilities and obligations, contingent or other wise, of such
Page 18
any person, (i) in respect of borrowed money (whether or not the recourse of the
lender is to the whole of the assets of such person or only to a portion
thereof), (ii) evidenced by bonds, notes, debentures or similar instruments,
(iii) representing the balance deferred and unpaid of the purchase price of any
property or services, except those incurred in the ordinary course of its
business that would constitute ordinarily trade payables to trade creditors that
are not more than 60 days past their original due date, (iv) evidenced by
bankers' acceptances or similar instruments issued or accepted by banks, (v)
relating to any Capitalized Lease Obligation, or (vi) evidenced by a letter of
credit or a reimbursement obligation of such person with respect to any letter
of credit; (b) all net obligations of such person under Interest Swap and
Hedging Obligations; (c) all liabilities and obligations of others of the kind
described in the preceding clause (a) or (b) that such person has guaranteed or
that is otherwise its legal liability or which are secured by any assets or
property of such person and (d) any and all deferrals, renewals, extensions,
refinancing and refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clause (a), (b) or (c), or this clause (d), whether or not between
or among the same parties, and (e) all Disqualified Capital Stock of such person
(measured at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued and unpaid dividends). 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 the 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 (or managing general partner of the issuer) of such Disqualified Capital
Stock.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof.
"Interest Payment Date" means, with respect to a series of Securities, the
stated due date of an installment of interest on such series of Securities.
"Interest Swap and Hedging Obligation" means any obligation of any person
pursuant to any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate exchange agreement, currency
exchange agreement or any other agreement or arrangement designed to protect
against fluctuations in interest rates or currency values, including,
Page 19
without limitation, any arrangement whereby, directly or indirectly, such person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Investment" by any person in any other person means (without duplication)
(a) the acquisition (whether by purchase, merger, consolidation or otherwise) by
such person (whether for cash, property, services, securities or otherwise) of
capital stock, bonds, notes, debentures, partnership or other ownership
interests or other securities, including any options or warrants, of such other
person or any agreement to make any such acquisition; (b) the making by such
person of any deposit with, or advance, loan or other extension of credit to,
such other person (including the purchase of property from another person
subject to an understanding or agreement, contingent or otherwise, to resell
such property to such other person) or any commitment to make any such advance,
loan or extension (but excluding accounts receivable or deposits arising in the
ordinary course of business); (c) other than guarantees of Indebtedness of Sun
International or any Subsidiary to the extent permitted by Section 4.10, the
entering into by such person of any guarantee of, or other credit support or
contingent obligation with respect to, Indebtedness or other liability of such
other person; (d) the making of any capital contribution by such person to such
other person; and (e) the designation by the Board of Directors of Sun
International of any person to be an Unrestricted Subsidiary. Sun International
shall be deemed to make an Investment in an amount equal to the fair market
value of the net assets of any subsidiary (or, if neither Sun International nor
any of its Subsidiaries has theretofore made an Investment in such subsidiary,
in an amount equal to the Investments being made), at the time that such
subsidiary is designated an Unrestricted Subsidiary, and any property
transferred to an Unrestricted Subsidiary from Sun International or a Subsidiary
shall be deemed an Investment valued at its fair market value at the time of
such transfer.
"Investment Grade Rating" means a rating equal to or higher than Baa3 (or
the equivalent) by Moody's (or any successor to the rating agency business
thereof) or BBB- (or the equivalent) by S&P (or any successor to the rating
agency business thereof).
"Investment Grade Status" means, with respect to a series of Securities,
any time at which the ratings of the Securities of such series by both Moody's
(or any successor to the rating agency business thereof) and S&P (or any
successor to the rating
Page 20
agency business thereof) are Investment Grade Ratings.
"Issue Date" means, with respect to a series of Securities, the date of
first issuance of such series of Securities under the Indenture.
"Issuer" means each party named as such in this Indenture until a
successor replaces it pursuant to the Indenture and thereafter means such
successor.
"Junior Security" means, with respect to a series of Securities, any
Qualified Capital Stock and any Indebtedness of an Issuer or a Guarantor, if
any, as applicable, that (i) is subordinated in right of payment to Senior Debt
at least to the same extent as such series of Securities or a Guarantee, if any,
as applicable, (ii) has no scheduled installment of principal due, by
redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of such series of Securities, (iii) does not have covenants or default
provisions materially more beneficial to the holders of such series of
Securities than those in effect with respect to such series of Securities on the
Issue Date of such series of Securities and (iv) was authorized by an order or
decree of a court of competent jurisdiction that gave effect to (and states in
such order or decree that effect has been given to) the subordination of such
securities to all Senior Debt of the applicable Issuer or Guarantor, if any, not
paid in full in cash or Cash Equivalents in connection with such reorganization;
provided that all such Senior Debt is assumed by the reorganized corporation and
the rights of the holders of any such Senior Debt are not, without the consent
of such holders, altered by such reorganization, which consent shall be deemed
to have been given if the holders of such Senior Debt, individually or as a
class, shall have approved such reorganization.
"Legal Holiday" shall have the meaning provided in Section 13.7.
"Lien" means any mortgage, charge, pledge, lien (statutory or otherwise),
privilege, security interest, hypothecation or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired.
"Maturity Date," when used with respect to any Security, means the date
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at Stated Maturity, a Change of Control Purchase Date,
a purchase date with respect to an Asset Sale Offer or by declaration of
acceleration, call for redemption or otherwise.
Page 21
"Moody's" means Moody's Investors Service, Inc.
"Net Cash Proceeds" means, with respect to a series of Securities, the
aggregate amount of Cash or Cash Equivalents received by Sun International in
the case of a sale of Qualified Capital Stock and by Sun International and its
Subsidiaries in respect of an Asset Sale plus, in the case of an issuance of
Qualified Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
Sun International that were issued for cash on or after the Issue Date of such
series of Securities, the amount of cash originally received by Sun
International upon the issuance of such securities (including options, warrants,
rights and convertible or exchangeable debt) less, in each case, the sum of all
payments, fees, commissions and reasonable and customary expenses (including,
without limitation, the fees and expenses of legal counsel and investment
banking fees and expenses) incurred in connection with such Asset Sale or sale
of Qualified Capital Stock, and, in the case of an Asset Sale only, less the
amount (estimated reasonably and in good faith by Sun International) of income,
franchise, sales and other applicable taxes required to be paid by Sun
International or any of its respective Subsidiaries in connection with such
Asset Sale.
"Non-Recourse Indebtedness" means Indebtedness of a person to the extent
that under the terms thereof or pursuant to applicable law (i) no personal
recourse shall be had against such person for the payment of the principal of or
interest or premium, if any, on such Indebtedness, and (ii) enforcement of
obligations on such Indebtedness is limited only to recourse against interests
in property purchased with the proceeds of the incurrence of such Indebtedness
and as to which none of the Issuers or any of its Subsidiaries provides any
credit support or is liable.
"Non-Strategic Real Estate" means (i) any real estate on Paradise Island
in the Bahamas, other than the real estate upon which the Atlantis Resort &
Casino property is located, and (ii) any real property in and around Atlantic
City, New Jersey, other than the Resorts Casino Hotel, the former site of the
Chalfonte Hotel and any other real estate contiguous to such sites.
"Officer" means, with respect to the Issuers, the Chairman of the Board,
the Chief Executive Officer, the President, any Vice President, the Chief
Financial Officer, the Treasurer, the Controller, or the Secretary or Assistant
Secretary.
"Officers' Certificate" means, with respect to the Issuers or any
Guarantor, if any, a certificate signed by two Officers of both of the Issuers
or such Guarantor and otherwise complying
Page 22
with the requirements of Sections 13.4 and 13.5.
"Opinion of Counsel" means a written opinion from legal counsel to the
Issuers complying with the requirements of Sections 13.4 and 13.5. Unless
otherwise required by this Indenture, the counsel may be in-house counsel to
the Issuers.
"Original Issue Discount Security" means any Security which provides that
an amount less than its principal amount is due and payable upon acceleration
after an Event of Default.
"Paradise Island Expansion Opening" means the time when Sun
International's approximately $450 million expansion of its Atlantis Resort &
Casino property located on Paradise Island, The Bahamas shall have been
substantially completed and the new hotel and casino comprising the expansion
shall be ready for occupancy and operation.
"Paying Agent" shall have the meaning specified in Section 2.3.
"Permitted Holder" means Solomon Kerzner, his immediate family or a trust
or similar entity existing solely for his benefit or for the benefit of his
immediate family.
"Permitted Indebtedness" means, with respect to a series of Securities,
Indebtedness incurred as follows:
(a) the Issuers and the Guarantors, if any, may incur (i)
Indebtedness pursuant to the Credit Agreement up to an aggregate principal
amount outstanding (including any Indebtedness issued to refinance, refund or
replace such Indebtedness) at any time of $375 million (excluding any amounts
with respect to Interest Swap and Hedging Obligations) (which amount may be in
creased to $500 million upon the later to occur of the Paradise Island Expansion
Opening or December 31, 1998), minus the amount of any such Indebtedness retired
with Net Cash Proceeds from any Asset Sale or assumed by a transferee in an
Asset Sale (provided any commitment in respect of such Indebtedness is
permanently reduced) and (ii) the Issuers and the Guarantors, if any, may incur
Indebtedness with respect to Interest Swap and Hedging Obligations entered into
for bona fide hedging purposes and not entered into for speculative purposes;
(b) the Issuers and the Guarantors, if any, may incur Indebtedness
evidenced by the Securities and the Guarantees and represented by the Indenture
up to the amounts specified therein as of the date thereof;
(c) the Issuers and the Guarantors, if any, may incur
Page 23
FF&E Indebtedness on or after the Issue Date of such series, provided, that (i)
such FF&E Indebtedness is Non-Recourse Indebtedness and (ii) such Indebtedness
shall not constitute more than 100% of the cost (determined in accordance with
GAAP) to the Issuers or such Guarantor, if any, as applicable, of the property
so purchased or leased;
(d) the Issuers and the Guarantors, if any, may incur Indebtedness
solely in respect of bankers acceptances and performance bonds (to the extent
that such incurrence does not result in the incurrence of any obligation to
repay any obligation relating to borrowed money of others), all in the ordinary
course of business in accordance with customary industry practices, in amounts
and for the purposes customary in their industry;
(e) the Issuers may incur Indebtedness to any wholly owned
Subsidiary, and any wholly owned Subsidiary may incur Indebtedness to any other
wholly owned Subsidiary or to an Issuer; provided, that, in the case of
Indebtedness of the Issuers (other than Indebtedness that is required to be
pledged to the lenders under the Credit Agreement), such obligations shall be
unsecured and subordinated in all respects to the Issuers' obligations pursuant
to the Securities of such series, and the date of any event that causes a
Subsidiary to no longer be a wholly owned Subsidiary shall be an Incurrence
Date; and
(f) the Issuers and their Subsidiaries, as applicable, may incur
Refinancing Indebtedness with respect to any Indebtedness or Disqualified
Capital Stock, as applicable, described in clauses (b) and (f) of this
definition or incurred under the Debt Incurrence Ratio contained in Section 4.10
or which is outstanding on the Issue Date of such series of Securities so long
as such Refinancing Indebtedness is secured only by the assets that secured the
Indebtedness so refinanced or otherwise replaced.
"Permitted Investment" means, with respect to a series of Securities, (a)
any Investment in any of such series of Securities; (b) any Investment in Cash
Equivalents; (c) any Investment in intercompany notes to the extent permitted
under clause (b) of the definition of "Permitted Indebtedness"; (d) any
Investment in a person in a Related Business who, after such Investment, becomes
a Subsidiary of an Issuer and a Guarantor (if so required) of the Securities of
such series; and (e) any Investment in any property or assets to be used by an
Issuer or Guarantor, if any, in a Related Business.
"Permitted Lien" means, with respect to a series of Securities, (a) any
Lien securing such series of Securities;
Page 24
(b) any Lien securing Indebtedness of a person existing at the time such person
becomes a Subsidiary or is merged with or into either of the Issuers or a
Subsidiary of either of the Issuers or Liens securing Indebtedness incurred in
connection with an Acquisition, provided that such Liens were in existence prior
to the date of such acquisition, merger or consolidation, were not incurred in
anticipation thereof, and do not extend to any other assets; (c) any Lien in
favor of either of the Issuers or any Guarantor, if any; and (d) any Lien
arising from FF&E Indebtedness permitted to be incurred under clause (c) of the
definition of "Permitted Indebtedness", provided such Lien relates solely to the
property which is subject to such FF&E Indebtedness.
"person" means any individual, limited liability company, corporation,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof.
"Place of Payment" means, when used with respect to the Securities of any
series, the place or places where the principal of, and premium, if any, and
interest on, the Securities of that series are payable as specified pursuant to
Section 2.4.
"principal" of any Indebtedness (including the Securities) means the
principal of such Indebtedness plus any applicable premium, if any, on such
Indebtedness.
"Property" or "property" means any right or interest in or to property or
assets of any kind whatsoever, whether real, personal or mixed and whether
tangible, intangible, contingent, indirect or direct.
"Public Equity Offering" means an underwritten public offering of Common
Stock of Sun International.
"Qualified Capital Stock" means any Capital Stock of Sun International
that is not Disqualified Capital Stock.
"Qualified Exchange" means, with respect to a series of Securities, any
legal defeasance, redemption, retirement, repurchase or other acquisition of
Capital Stock or Indebtedness of Sun International issued on or after the Issue
Date of such series with the Net Cash Proceeds received by Sun International
from the substantially concurrent sale of Qualified Capital Stock or any
exchange of Qualified Capital Stock for any Capital Stock or Indebtedness of Sun
International issued on or after the Issue Date of such series.
"Rating Agencies" means S&P and Moody's or any successor to
Page 25
the respective rating agency businesses thereof.
"Record Date" means, with respect to a series of Securities, a Record Date
specified in such series of Securities whether or not such Record Date is a
Business Day.
"Redemption Date," when used with respect to any series of Securities to
be redeemed, means the date fixed for such redemption pursuant to Article III of
this Indenture and the Securities of such series.
"Redemption Price," when used with respect to any series of Security to be
redeemed, means the redemption price for such redemption set forth in the
Securities of such series, which shall include in each case accrued and unpaid
interest with respect to such Securities to the applicable Redemption Date.
"Reference Period" with regard to any person means the four full fiscal
quarters (or such lesser period during which such person has been in existence)
ended immediately preceding any date upon which any determination is to be made
pursuant to the terms of the Securities or the Indenture.
"Refinancing Indebtedness" means, with respect to a series of Securities,
Indebtedness or Disqualified Capital Stock (a) issued in exchange for, or the
proceeds from the issuance and sale of which are used substantially concurrently
to repay, redeem, defease, refund, refinance, discharge or otherwise retire for
value, in whole or in part, or (b) constituting an amendment, modification or
supplement to, or a deferral or renewal of ((a) and (b) above are, collectively,
a "Refinancing"), any Indebtedness or Disqualified Capital Stock in a principal
amount or, in the case of Disqualified Capital Stock, liquidation preference,
not to exceed (after deduction of reasonable and customary fees and expenses
incurred in connection with the Refinancing) the lesser of (i) the principal
amount or, in the case of Disqualified Capital Stock, liquidation preference, of
the Indebtedness or Disqualified Capital Stock so Refinanced and (ii) if such
Indebtedness being Refinanced was issued with an original issue discount, the
accreted value thereof (as deter mined in accordance with GAAP) at the time of
such Refinancing; provided, that (A) such Refinancing Indebtedness of any
Subsidiary of Sun International shall only be used to Refinance out standing
Indebtedness or Disqualified Capital Stock of such Subsidiary, (B) such
Refinancing Indebtedness shall (x) not have an Average Life shorter than the
Indebtedness or Disqualified Capital Stock to be so refinanced at the time of
such Refinancing and (y) in all respects, be no less subordinated or junior, if
applicable, to the rights of Holders of such series of Securities than was the
Indebtedness or Disqualified Capital
Page 26
Stock to be refinanced and (C) such Refinancing Indebtedness shall have a final
stated maturity or redemption date, as applicable, no earlier than the final
stated maturity or redemption date, as applicable, of the Indebtedness or
Disqualified Capital Stock to be so refinanced.
"Registrar" shall have the meaning specified in Section 2.3.
"Related Business" means the gaming or hotel business and other businesses
necessary for, or in the good faith judgment of the Board of Directors of Sun
International, incident to, connected with, arising out of, or developed or
operated to permit or facilitate the conduct or pursuit of the gaming or hotel
business (including developing or operating sports or entertainment facilities,
retail facilities, restaurants, night clubs, transportation and communications
services or other related activities or enterprises and any additions or
improvements thereto) and potential opportunities in the gaming or hotel
business.
"Representative" means The Bank of Nova Scotia or any successor or
successors under the Credit Agreement.
"Required Regulatory Redemption" shall have the meaning specified in
Section 3.2.
"Restricted Payment" means, with respect to any person, (a) the
declaration or payment of any dividend or other distribution in respect of
Equity Interests of such person or any parent or Subsidiary of such person, (b)
any payment on account of the purchase, redemption or other acquisition or
retirement for value of Equity Interests of such person or any Subsidiary or
parent of such person, (c) other than with the proceeds from the substantially
concurrent sale of, or in exchange for, Refinancing Indebtedness, any purchase,
redemption, or other acquisition or retirement for value of, any payment in
respect of any amendment of the terms of or any defeasance of, any Subordinated
Indebtedness, directly or indirectly, by such person or a parent or Subsidiary
of such person prior to the scheduled maturity, any scheduled repayment of
principal, or scheduled sinking fund payment, as the case may be, of such
Indebtedness and (d) any Investment by such person, other than a Permitted
Investment; provided, however, that the term "Restricted Payment" does not
include (i) any dividend, distribution or other payment on or with respect to
Equity Interests of an Issuer to the extent payable solely in shares of
Qualified Capital Stock of such Issuer; or (ii) any dividend, distribution or
other payment to the Issuers, or to any Guarantors, if any, by Sun International
or any of its Subsidiaries.
Page 27
"S&P" means Standard & Poor's Ratings Group, a division of the McGraw-Hill
Companies, Inc.
"SEC" means the Securities and Exchange Commission.
"Security or Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any debt security or debt securities,
as the case may be, of any series authenticated and delivered under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Securities Custodian" means the Trustee, as custodian with respect to the
Securities in global form, or any successor entity thereto.
"Securityholder" See "Holder."
"Senior Debt" of Sun International, SINA or any Guarantor, if any, means,
with respect to a series of Securities, Indebtedness (including and together
with all monetary obligations in respect of the Credit Agreement, and interest,
whether or not allowable, accruing on Indebtedness incurred pursuant to the
Credit Agreement after the filing of a petition initiating any proceeding under
any bankruptcy, insolvency or similar law or which would have accrued but for
such filing) of Sun International, SINA or such Guarantor arising under the
Credit Agreement or that, by the terms of the instrument creating or evidencing
such Indebtedness, is expressly designated Senior Debt and made senior in right
of payment to such series of Securities or the applicable Guarantee, if any;
provided, that in no event shall Senior Debt include (a) Indebtedness to any
Subsidiary of Sun International or any officer, director or employee of Sun
International or any Subsidiary of Sun International (other than Indebtedness
that is required to be pledged to the lenders under the Credit Agreement), (b)
Indebtedness incurred in violation of the terms of the Indenture or such series
of Securities, (c) Indebtedness to trade creditors, (d) Disqualified Capital
Stock, and (e) any liability for taxes owed or owing by Sun International, SINA
or such Guarantor.
"Significant Subsidiary" shall, with respect to a series of Securities,
have the meaning provided under Regulation S-X under the Securities Act, as in
effect on the Issue Date of such series.
"Stated Maturity" means, with respect to a series of
Page 28
Securities, the date specified in such series of Securities as the fixed date on
which the payment of principal of such series of Securities is due and payable,
including pursuant to any mandatory redemption provision (but excluding any
provision providing for the repurchase of such series of Securities at the
option of the holder thereof upon the happening of any contingency beyond the
control of the Issuers unless such contingency has occurred).
"Subordinated Debt Securities" shall have the meaning assigned to it in
the first paragraph of Article XII.
"Subordinated Indebtedness" means, with respect to a series of Securities
or a Guarantee, if any, Indebtedness of Sun International, SINA or a Guarantor,
if any, that is subordinated in right of payment to such series of Securities or
such Guarantee, if any, as applicable, in any respect or, for purposes of the
definition of Restricted Payments only, has a stated maturity on (except for
such series of Securities) or after the Stated Maturity of such series of
Securities.
"Subsidiary," with respect to any person, means (i) a corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such person, by such person and one or more Subsidiaries of such person or by
one or more Subsidiaries of such person, (ii) any other person (other than a
corporation) in which such person, one or more Subsidiaries of such person, or
such person and one or more Subsidiaries of such person, directly or indirectly,
at the date of determination thereof has at least majority ownership interest,
or (iii) a partnership in which such person or a Subsidiary of such person is,
at the time, a general partner. Notwithstanding the foregoing, an Unrestricted
Subsidiary shall not be a Subsidiary of Sun International or any Subsidiary of
Sun International. Unless the context requires otherwise, Subsidiary means each
direct and indirect Subsidiary of Sun International.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb) as in effect on the date of the execution of this Indenture,
except as permitted in Section 9.3.
"Trustee" means the party named as such in the recitals or appointed as
such from time to time pursuant to Section 7.8 and, subject to the provisions of
Article VII, includes its or their successors and assigns. If at any time there
is more than one such person, "Trustee" as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of that
series.
Page 29
"Trust Officer" means any officer within the corporate trust department
(or any successor group) of the Trustee including any vice president, assistant
vice president, assistant secretary or any other officer or assistant officer of
the Trustee customarily performing functions similar to those per formed by the
persons who at that time shall be such officers, and also means, with respect to
a particular corporate trust matter, any other officer of the corporate trust
department (or any successor group) of the Trustee to whom such trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Unrestricted Subsidiary" means any subsidiary of Sun International (other
than SINA) that does not own any Capital Stock of, or own or hold any Lien on
any property of, Sun International or any other Subsidiary of Sun International
or SINA and that shall be designated an Unrestricted Subsidiary by the Board of
Directors of Sun International; provided, that (i) such subsidiary shall not
engage, to any substantial extent, in any line or lines of business activity
other than a Related Business, (ii) neither immediately prior thereto nor after
giving pro forma effect to such designation would there exist a Default or Event
of Default and (iii) immediately after giving pro forma effect thereto, Sun
International could incur at least $1.00 of Indebtedness pursuant to the Debt
Incurrence Ratio in Section 4.10. The Board of Directors of Sun International
may designate any Unrestricted Subsidiary to be a Subsidiary, provided, that (i)
no Default or Event of Default is existing or will occur as a consequence
thereof and (ii) immediately after giving effect to such designation, on a pro
forma basis, Sun International could incur at least $1.00 of Indebtedness
pursuant to the Debt Incurrence Ratio in Section 4.10. Each such designation
shall be evidenced by filing with the Trustee a certified copy of the resolution
giving effect to such designation and an Officers' Certificate certifying that
such designation complied with the foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations of, or
noncallable obligations guaranteed by, the United States of America for the
payment of which obligation or guarantee the full faith and credit of the United
States of America is pledged.
"wholly owned Subsidiary" means a Subsidiary all the Equity Interests of
which are owned by Sun International or one or more wholly owned Subsidiaries of
Sun International, except for directors' qualifying shares.
Section 1.2 Incorporation by Reference of TIA.
Whenever this Indenture refers to a provision of the TIA, such provision
is incorporated by reference in and made a part of
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this Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Holder or a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers and any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them thereby.
Section 1.3 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words
in the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) "herein," "hereof" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(vii) references to Sections or Articles means
reference to such Section or Article in this Indenture, unless stated
otherwise.
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ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating.
The Securities of each series and the Trustee's certificate or
certificates of authentication, in respect thereof, shall be in such form
(including, in the case of the Securities, global form) as shall be established
by or pursuant to a Board Resolution of each of the Issuers or in one or more
indentures supplemental hereto in each case with such appropriate provisions as
are required or permitted by this Indenture. The Securities may have
identifications, notations, legends or endorsements as required by law, stock
exchange rule or usage. The Issuers shall approve the form of the Securities and
any notation, legend or endorsement on them. If the form of any series of
Securities is established by action taken pursuant to a Board Resolution, a copy
of an appropriate record of such action shall be certified by the Secretary or
any Assistant Secretary of the Issuers and delivered to the Trustee at or prior
to the delivery of a written order of the Issuers in the form of an Officers'
Certificate for the authentication and delivery of such Securities. Each
Security shall be dated the date of its authentication.
The terms and provisions contained in the Securities of each series shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Issuers and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
Section 2.2 Execution and Authentication; Denominations.
Two Officers shall sign, or one Officer shall sign and one Officer shall
attest to, the Securities for the Issuers by manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheless and the
Issuers shall nevertheless be bound by the terms of such Securities and this
Indenture.
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security, but such
signature shall be conclusive evidence that the Security has been authenticated
pursuant to the terms of this Indenture.
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The Trustee shall authenticate a series of Securities upon a written order
of the Issuers in the form of an Officers' Certificate with respect to such
series. The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
As Trustee
By:
Authorized Signatory
The Officers' Certificate shall specify the amount of Securities to be
authenticated and the date on which the Securities are to be authenticated. The
aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture is unlimited. Upon the written order of the Issuers in the
form of an Officers' Certificate, the Trustee shall authenticate Securities in
substitution of Securities originally issued to reflect any name change of
either of the Issuers.
The Trustee may appoint an authenticating agent accept able to the Issuers
to authenticate Securities. Unless otherwise provided in the appointment, an
authenticating agent may authenticate Securities whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as an
Agent to deal with the Issuers, any Affiliate of the Issuers or any of their
respective Subsidiaries.
Unless provided otherwise in connection with the establishment of a series
of Securities pursuant to Section 2.3, Securities of such series shall be
issuable only in registered form without coupons in denominations of $1,000 and
any integral multiple thereof.
Section 2.3 Securities Issuable in Series; Registrar and Paying Agent.
The aggregate Principal Amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution by each
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of the Issuers and set forth in an Officers' Certificate, or established in one
or more indentures supplemental hereto, prior to the issuance of any series of
Securities:
(1) the title of the Securities of the series (which shall distinguish the
Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Sections
2.6, 2.7, 2.10 and 9.5 and except for any Securities which, pursuant to Section
2.2 are deemed never to have been authenticated and delivered hereunder) and any
provisions relating to the seniority or subordination of all or any portion of
the indebtedness evidenced thereby to other indebtedness of the Issuers;
(3) the person to whom any interest on a Security of the series shall be
payable, if other than the person in whose name that Security is registered at
the close of business on the record date for such interest;
(4) the date or dates on which the principal of any Securities of the
series is payable or the method of determination thereof;
(5) the rate or rates (which may be fixed or variable) at which any
Securities of the series shall bear interest, if any, the date or dates from
which any such interest shall accrue, the dates on which any such interest shall
be payable and the record date for any such interest payable on any such payment
date;
(6) any terms applicable to original issue discount, if any (as that term
is defined in the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), including the rate or rates at which such original issue discount,
if any, shall accrue;
(7) the place or places where the principal of and interest on any
Securities of the series shall be payable;
(8) the period or periods within which, the price or prices at which and
the terms and conditions upon which any Securities of the series may be
redeemed, in whole or in part, at the option of the Issuers and, if other than
by a Board Resolution, the manner in which any election by the Issuers to redeem
the Securities shall be evidenced.
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(9) the obligation, if any, of the Issuers to redeem or purchase any
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of the Holder thereof and the period or periods within which, the
price or prices at which and the terms and conditions upon which any Securities
of the series shall be redeemed or purchased, in whole or in part, pursuant to
such obligation;
(10) the terms and conditions, if any, upon which the Securities of the
series may or must be converted into other securities of the Issuers or
exchanged for the other securities of the Issuers or another enterprise;
(11) if other than denomination of $1,000 and any integral multiple
thereof, the denominations in which any Securities of the series shall be
issuable;
(12) if the amount of principal of or interest on any Securities of the
series is to be determined with reference to an index, pursuant to a formula or
by another method, the manner in which such amounts shall be determined and the
calculation agent, if any, with respect thereto;
(13) if the principal of or interest on any Securities of the series is to
be payable, at the election of the Issuers or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency units in which
the principal of or interest on such Securities as to which such election is
made shall be payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable (or the manner
in which such amount shall be determined);
(14) if other than the entire principal amount thereof, the portion of the
principal amount of any Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.2;
(15) if the principal amount payable at the maturity of any Securities of
the series will not be determinable as of any one or more dates prior to
maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon any
maturity date other than the Stated Maturity or which shall be deemed to be
outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);
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(16) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Article VIII, and, if other than
by a Board Resolution, the manner in which any election by the Issuers to
defease such Securities shall be evidenced;
(17) any addition to or change in the Events of Default which applies to
any Securities of the series and any change in the right of the Trustee or the
requisite Holders of such Securities to declare the principal amount thereof due
and payable pursuant to Section 6.2;
(18) if applicable, any provisions for securing all or any portion of the
Indebtedness evidenced by the Securities of the series;
(19) if applicable, any provisions relating to the seniority or
subordination of all or any portion of the Indebtedness evidenced by the
Securities of the series to other Indebtedness of the Issuers including, as
applicable, other Indebtedness evidenced by Securities;
(20) any addition to or change in the covenants set forth in Article 4
which applies to Securities of the series;
(21) whether the Securities of the series shall be issued in whole or in
part in temporary or permanent form of a Global Security or Securities and, if
so, the initial Depository with respect to any such temporary or permanent
Global Security or Securities, and if other than as provided in Section 2.8,
whether and the circumstances under which beneficial owners of interests in any
such temporary or permanent Global Security or Securities may exchange such
interests for Securities of such series and of like tenor of any authorized form
and denomination; and
(22) any other material terms of the Securities of such series (which
terms shall not be inconsistent with the provisions of this Indenture, but which
may modify or delete any provision of this Indenture with respect to such
series, provided that no such term may modify or delete any provision hereof if
imposed by the TIA, and provided further that any modification or deletion of
the rights, duties or immunities of the Trustee hereunder shall have been
consented to in writing by the Trustee.
If any of the foregoing terms are not available at the time such Board
Resolution is adopted, or such Officers' Certificate or any supplemental
indenture is executed, such resolution, Officers' Certificate or supplemental
indenture may reference the document or documents to be created in which such
terms will be
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set forth prior to the issuance of such Securities.
The Issuers shall maintain an office or agency in the Borough of
Manhattan, The City of New York, where each series of Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency in the Borough of Manhattan, The City of New York where
Securities may be presented for payment ("Paying Agent") and an office or agency
where notices and demands to or upon the Issuers in respect of each series of
the Securities may be served. The Issuers may act as Registrar or Paying Agent,
except that, for the purposes of Articles III, VIII, X and Section 4.13 neither
Issuer nor any Affiliate thereof shall act as Paying Agent. The Issuers may
appoint one or more co-registrars and one or more additional paying agents for
each series of Securities. The Registrar shall keep a register of the Securities
and of their transfer and exchange. The Issuers may have one or more
co-Registrars and one or more additional Paying Agents. The term "Paying Agent"
includes any additional Paying Agent. The term "Registrar" includes any
co-registrar. The Issuers may change any Paying Agent or Registrar upon 30 days'
notice to the Trustee. The Issuers hereby initially appoint the Trustee as
Registrar and Paying Agent, and the Trustee hereby initially agrees so to act.
The Issuers shall enter into an appropriate written agency agreement with
any Agent not a party to this Indenture, which agreement shall implement the
provisions of this Indenture that relate to such Agent. The Issuers shall
promptly notify the Trustee in writing of the name and address of any such
Agent. If the Issuers fail to maintain a Registrar or Paying Agent, the Trustee
shall act as such.
The Issuers initially appoint The Depository Trust Company ("DTC") to act
as Depository with respect to the Global Securities.
The Issuers initially appoint the Trustee to act as Securities Custodian
with respect to the Global Securities.
The Issuers shall, if the Securities of any series are listed on a
national securities exchange, designate as authenticating agent, Registrar and
Paying Agent with respect to the Securities of such series a bank or trust
company in good standing, organized under the laws of the United States of
America or any State, doing business in or having a correspondent relationship
with a bank or trust company doing business in the Borough of Manhattan, City of
New York, State of New York, and having a capital and surplus (including
subordinated capital notes and earned surplus) aggregating at least $10,000,000
(except with respect to Article VIII, in which case the Paying
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Agent (if other than the Trustee) shall have a capital and surplus (including
subordinated capital notes and earned surplus) aggregating at least
$100,000,000). Whenever, pursuant to this Indenture, the Trustee is obligated,
empowered or authorized to perform any act with respect to the authentication
and issuance of the Securities of any series, or their transfer, other than the
authentication and issuance of Securities of such series upon original issue or
in cases of Securities of such series mutilated, destroyed, lost or stolen, such
act may be performed by the authenticating agent and Registrar for such series,
notwithstanding anything in this Indenture to the contrary. Whenever, pursuant
to this Indenture, the Trustee is obligated, empowered or authorized to perform
any act with respect to payment of the principal of or interest on the
Securities of any series, such acts may be performed by the paying Agent for
such series, notwithstanding anything in this Indenture to the contrary.
The Issuers covenant that whenever necessary to avoid or fill a vacancy in
the office of authenticating agent, Registrar or Paying Agent for any series of
Securities, the Issuers will appoint a successor authenticating agent, Registrar
or Paying Agent, as the case may be, so that there shall, at all times that the
Securities of such series are listed on a national securities exchange, be one
or more offices or agencies in the Borough of Manhattan, City of New York, State
of New York, acceptable to such exchange, where Securities of such series may be
presented or surrendered for payment and where Securities of such series may be
surrendered for registration of transfer or exchange.
In case, at the time of the appointment of a successor to the
authenticating agent, any of the Securities of a series shall have been
authenticated but not delivered, any such successor may adopt the certificate of
authentication of the original authenticating agent or of any successor to it as
authenticating agent hereunder, and deliver such Securities so authenticated;
and in case at any time any of the Securities of a series shall not have been
authenticated, any successor to the authenticating agent by merger or
consolidation may authenticate such Securities either in the name of its
predecessor hereunder or in the name of the successor authenticating agent; and
in all such cases such certificate shall have the full force which it is
anywhere in the Securities of such series or in this Indenture provided that the
certificate of authentication shall have.
Section 2.4 Paying Agent to Hold Assets in Trust.
The Issuers shall require each Paying Agent other than the Trustee to
agree in writing that each Paying Agent shall hold in
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trust for the benefit of Holders or the Trustee all assets held by the Paying
Agent for the payment of principal of or interest on a series of the Securities
(whether such assets have been distributed to it by the Issuers or any other
obligor on such series of Securities), and shall notify the Trustee in writing
of any Default by the Issuers (or any other obligor on such series of
Securities) in making any such payment. If either Issuer or any Subsidiary
thereof acts as Paying Agent, it shall segregate such assets and hold them as a
separate trust fund for the benefit of the Holders or the Trustee for such
series of Securities. The Issuers at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Issuers to the Paying Agent, the Paying Agent (if other than
either of the Issuers) shall have no further liability for such assets.
Section 2.5 Securityholder Lists.
The Trustee shall, for each series of Securities, preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders of such series. If the Trustee is not the
Registrar, the Issuers shall furnish to the Trustee on or before the third
Business Day preceding each Interest Payment Date and at such other times as the
Trustee may request in writing, but in any event at least semi-annually, a list
in such form and as of such date as the Trustee reasonably may require of the
names and addresses of Holders of such series. The Trustee, the Registrar and
the Issuers shall, for each series of Securities, provide a current
securityholder list to any Gaming Authority upon demand.
Section 2.6 Transfer and Exchange.
(a) When Definitive Securities are presented to the Registrar or a
co-Registrar with a request
(x) to register the transfer of such Definitive Securities or
(y) to exchange such Definitive Securities for an equal
principal amount of Definitive Securities of other authorized
denominations,
the Registrar or co-Registrar shall register the transfer or make the exchange
as requested if its reasonable requirements for such transaction are met;
provided, however, that the Definitive
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Securities surrendered for transfer or exchange shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably satisfactory
to the Registrar or co-Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing.
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A Definitive Security of any series
may not be exchanged for a beneficial interest in a Global Security of such
series except upon satisfaction of the requirements set forth below. Upon
receipt by the Registrar of a Definitive Security of any series, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Registrar, together with written instructions directing the Registrar to
make, or to direct the Securities Custodian to make, an endorsement on the
Global Security of such series to reflect an increase in the aggregate principal
amount of the Securities represented by such Global Security of such series,
then the Registrar shall cancel such Definitive Security and cause, or direct
the Securities Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depository and the Securities Custodian, the
aggregate principal amount of Securities of such series represented by the
Global Security of such series to be increased accordingly. If no Global
Securities of such series are then outstanding, the Issuers shall issue and the
Trustee shall authenticate a new Global Security of such series in the
appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities of any series or beneficial interests therein
shall be effected through the Depository with respect to such series, in
accordance with this Indenture and the procedures of such Depository.
(d) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Any person having a beneficial interest in a Global
Security of any series may upon request exchange such beneficial interest
for a Definitive Security of such series. Upon receipt by the Trustee of
written instructions or such other form of instructions as is customary
for the Depository for such series from the Depository or its nominee on
behalf of any person having a beneficial interest in a Global Security and
upon receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depository, and if such beneficial
interest is being transferred to the person designated by the Depository
as being the beneficial owner, a
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certification from such person to that effect (all of which may be
submitted by facsimile), then the Registrar or the Securities Custodian,
at the direction of the Trustee, will cause, in accordance with the
standing instructions and procedures existing between the Depository and
the Securities Custodian, the aggregate principal amount of the Global
Security of such series to be reduced and, following such reduction, the
Issuers will execute and the Trustee will authenticate and deliver to the
transferee a Definitive Security of such series in the appropriate
principal amount.
(ii) Definitive Securities of any series issued in
exchange for a beneficial interest in a Global Security for such series
pursuant to this Section 2.7(d) shall be registered in such names and in
such authorized denominations as the Depository for such series, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Registrar shall deliver such Definitive
Securities to the persons in whose names such Securities are so
registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in subsection (f) of this Section 2.7), a Global Security
of any series may not be transferred as a whole except by the Depository for
such series to a nominee of such Depository or by a nominee of such Depository
to the Depository or another nominee of such Depository or by such Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository.
(f) Authentication of Definitive Securities in Absence of
Depository. If at any time:
(i) the Depository for the Securities of any series
notifies the Issuers that the Depository is unwilling or unable to
continue as Depository for the Global Securities of such series and a
successor Depository for the Global Securities of such series is not
appointed by the Issuers within 90 days after delivery of such notice; or
(ii) the Issuers, in their sole discretion, notify the
Trustee in writing that they elect to cause the issuance of Definitive
Securities of such series under this Indenture,
then the Issuers will execute, and the Trustee, upon receipt of an Officers'
Certificate requesting the authentication and delivery of Definitive Securities
of such series, will authenticate and make available for delivery Definitive
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Securities of such series, in an aggregate principal amount equal to the
principal amount of the Global Securities of such series, in exchange for such
Global Securities.
(g) Cancellation and/or Adjustment of Global Security. At such time
as all beneficial interests in a Global Security of any series have either been
exchanged for Definitive Securities, redeemed, repurchased or cancelled, such
Global Security shall be returned to or retained and cancelled by the Trustee.
At any time prior to such cancellation, if any beneficial interest in a Global
Security of any series is exchanged for Definitive Securities of such series,
redeemed, repurchased or cancelled, the principal amount of Securities of such
series represented by such Global Security shall be reduced and an endorsement
shall be made on such Global Security, by the Trustee or the Securities
Custodian, at the direction of the Trustee, to reflect such reduction.
(h) Obligations with respect to Transfers and Exchanges of
Definitive Securities.
(i) To permit registrations of transfers and exchanges,
the Issuers shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities of any series at the request of the
Registrar or co-Registrar for such series.
(ii) No service charge shall be made for any
registration of transfer or exchange, but the Issuers may require payment
of a sum sufficient to cover any transfer tax, assessments, or similar
govern mental charge payable in connection therewith (other than any such
transfer taxes, assessments, or similar governmental charge payable upon
exchanges or transfers pursuant to Section 2.2, 2.11, 3.6, 4.13, 9.5 or
10.1).
(iii) Except for a redemption of Securities pursuant to
Section 3.2 or upon an order of any Gaming Authority, the Registrar or
co-Registrar for a series of Securities shall not be required to register
the transfer of or exchange of (a) any Definitive Security of such series
selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Definitive Security being redeemed in
part, or (b) any Security of any series for a period beginning 15 days
before the mailing of a notice of an offer to repurchase pursuant to
Article XII or Section 4.13 hereof or a notice of redemption of Securities
pursuant to Article III hereof and ending at the close of business on the
day of such mailing.
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(iv) All Definitive Securities and Global Securities of
any series issued upon any registration of transfer or exchange of
Definitive Securities or Global Securities of such series shall be the
valid obligations of the Issuers, evidencing the same debt, and entitled
to the same benefits under the Indenture, as the Definitive Securities or
Global Securities of such series surrendered upon such registration of
transfer or exchange.
(v) The Issuers shall not be required:
(1) to issue, register the transfer of or exchange
Securities of any series during a period beginning at the opening of
business 15 days before the day of any selection of Securities of such
series for redemption under Article III and ending at the close of
business on the day of selection, or
(2) to register the transfer of any Security of
such series so selected for redemption in whole or in part, except the
unredeemed portion of any Security of such series being redeemed in part.
(vi) Prior to due presentment for registration of
transfer of any Security of a series, the Trustee, any Agent and the
Issuers may deem and treat the person in whose name such Security is
registered as the absolute owner of such Security for the purpose of
receiving payment of principal of and interest on such Security and for
all other purposes whatsoever, whether or not such Security is overdue,
and neither the Trustee, any Agent nor the Issuers shall be affected by
notice to the contrary.
Section 2.7 Replacement Securities.
If a mutilated Security of any series is surrendered to the Trustee or if
the Holder of a Security of any series claims and submits an affidavit or other
evidence, satisfactory to the Trustee, to the Trustee to the effect that such
Security has been lost, destroyed or wrongfully taken, the Issuers shall issue
and the Trustee shall authenticate a replacement Security of such series if the
Trustee's requirements are met. If required by the Trustee or the Issuers, such
Holder must provide an indemnity bond or other indemnity, sufficient in the
judgment of both the Issuers and the Trustee, to protect the Issuers, the
Trustee or any Agent from any loss which any of them may suffer if a Security of
any series is replaced. The Issuers may charge such Holder for their reasonable,
out-of-pocket expenses in replacing a Security of any series.
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Every replacement Security is an additional obligation of the Issuers.
Section 2.8 Outstanding Securities.
Securities of any series outstanding at any time are all the Securities of
such series that have been authenticated by the Trustee except those cancelled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Security effected by the Trustee hereunder and those described in
this Section 2.8 as not outstanding. A Security does not cease to be outstanding
because the Issuers or an Affiliate of the Issuers holds the Security, except as
provided in Section 2.9.
If a Security of any series is replaced pursuant to Section 2.7 (other
than a mutilated Security surrendered for replacement), it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser. A mutilated Security ceases
to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.7.
If, with respect to a series, on a Redemption Date or the Maturity Date
for such series the Paying Agent (other than the Issuers or an Affiliate of the
Issuers) holds cash sufficient to pay all of the principal and interest due on
the Securities of such series payable on that date and payment of such
Securities called for redemption is not otherwise prohibited, then on and after
that date such Securities cease to be outstanding and interest on them ceases to
accrue.
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination. When
requested by the Trustee, the Issuers will advise the Trustee in writing of such
amount, showing its computations in reasonable detail.
Section 2.9 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of any series have concurred in any direction, amendment, supplement,
waiver or consent, Securities of such series owned by the Issuers, any
Guarantor, if any, and Affiliates of the Issuers or of any Guarantor, if any,
shall be disregarded, except that, for the purposes of determining whether
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the Trustee shall be protected in relying on any such direction, amendment,
supplement, waiver or consent, only Securities that a Trust Officer of the
Trustee actually knows are so owned shall be disregarded.
Section 2.10 Temporary Securities.
Until definitive Securities of any series are ready for delivery, the
Issuers may prepare, the Guarantors, if any, shall endorse and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have variations that the Issuers reasonably and in good faith
consider appropriate for temporary Securities of such series. Without
unreasonable delay, the Issuers shall prepare, the Guarantors, if any, shall
endorse and the Trustee shall authenticate definitive Securities of any series
in exchange for temporary Securities of such series. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as permanent Securities authenticated and delivered
hereunder.
Section 2.11 Cancellation.
The Issuers at any time may deliver Securities of any series to the
Trustee for cancellation. The Registrar and the Paying Agent shall forward to
the Trustee Securities of any series surrendered to them for transfer, exchange
or payment. The Trustee, or at the direction of the Trustee, the Registrar or
the Paying Agent (other than the Issuers or an Affiliate of the Issuers), and no
one else, shall cancel and, at the written direction of the Issuers, shall
dispose of all Securities of any series surrendered for transfer, exchange,
payment or cancellation in accordance with its customary procedures. Subject to
Section 2.7, the Issuers may not issue new Securities of any series to replace
Securities of such series it has paid or delivered to the Trustee for
cancellation. No Securities of any series shall be authenticated in lieu of or
in exchange for any Securities of such series cancelled as provided in this
Section 2.11, except as expressly permitted in the form of Securities and as
permitted by this Indenture.
Section 2.12 Defaulted Interest.
If the Issuers default on a payment of interest on the Securities of any
series, the Issuers shall pay the defaulted interest, plus (to the extent
lawful) interest on the defaulted interest, to the persons who are Holders of
such series on a Record Date (or at the Issuers' option a subsequent special
record date), which date shall be the fifteenth day next
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preceding the date fixed by the Issuers for the payment of defaulted interest,
whether or not such day is a Business Day, unless the Trustee fixes another
record date. At least 15 days before the subsequent special record date, the
Issuers shall mail to each Holder with a copy to the Trustee a notice that
states the subsequent special record date, the payment date and the amount of
defaulted interest, and interest payable on such defaulted interest, if any, to
be paid.
Section 2.13 CUSIP Numbers.
The Issuers in issuing the Securities of any series may use "CUSIP"
numbers (if then generally in use), and, if so, the Trustee shall use "CUSIP"
numbers in notices of redemption as a convenience to Holders of such series;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities of such series
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Securities of such
series, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuers will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE III
REDEMPTION
The provisions of this Article III shall be applicable to the Securities
of any series unless this Article III is designated, pursuant to Section 2.3, as
being inapplicable to the Securities of such series. In addition, it shall be
established prior to the issuance of any series of Securities, pursuant to
Section 2.3, whether any provision concerning redemption of the Securities,
other than or in addition to those specified below, shall be applicable to such
series. Provisions of this Article III designated, pursuant to Section 2.3, as
being inapplicable 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
III, unless the context otherwise requires, all references to Securities (and
all references to other defined terms with respect to such series of Securities)
refer only to a series of Securities for which such provision has not been
designated, pursuant to Section 2.3, as being inapplicable. Notwithstanding the
foregoing, each series of Securities shall contain the provisions in Section 3.2
relating to Required Regulatory Redemptions.
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Section 3.1 Right of Redemption.
At their election, the Issuers may redeem the Securities in whole or in
part, at any time or from time to time on or after March 15, 2002, at the
Redemption Prices specified below, plus accrued but unpaid interest to the
Redemption Date. Except as provided in this paragraph, the next following
paragraph, Section 3.2 and the terms of the Securities, the Securities may not
otherwise be redeemed at the option of the Issuers.
Year Percentage
- ---- ----------
2002.................................................... 104.500%
2003.................................................... 103.000%
2004.................................................... 101.500%
2005 and thereafter..................................... 100.000%
On or prior to March 15, 2000, upon a Public Equity Offering of Ordinary
Shares for cash of Sun International, up to 35% of the aggregate principal
amount of the Securities may be redeemed at the option of the Issuers with cash
from the Net Cash Proceeds of such Public Equity Offering, at 109% of the
principal amount thereof (subject to the right of Holders of record on a Record
Date to receive interest due on an Interest Payment Date that is on or prior to
such Redemption Date), plus accrued but unpaid interest to the date of
redemption; provided, however, that immediately following each such redemption
not less than 65% of the aggregate principal amount of the Securities are
outstanding, provided, further that such redemption shall occur within 120 days
of such Public Equity Offering.
Securities may be redeemed at the option of the Issuers, in whole but not
in part, upon not less than 30 nor more than 60 days' notice given as provided
herein, at any time at a redemption price equal to the principal amount thereof,
plus accrued and unpaid interest, if any, thereon, to the date fixed for
redemption if, as a result of any change in or amendment to the laws, treaties,
rulings or regulations of The Bahamas, or of any political subdivision or taxing
authority thereof or therein, or any change in the official position of the
applicable taxing authority regarding the application or interpretation of such
laws, treaties, rulings or regulations (including a holding judgment or order of
a court of competent jurisdiction) or any execution thereof or amendment
thereto, which is enacted into law or otherwise becomes effective after the
Issue Date, either Issuer is or would be required on the next succeeding
Interest Payment Date to pay Additional Amounts on the Securities as a result of
the imposition of a Bahamian withholding tax and the
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payment of such Additional Amounts cannot be avoided by the use of any
reasonable measures available to the Issuers which do not cause the Issuers to
incur any material costs. The Issuers shall also pay to holders on the
redemption date any Additional Amounts then due and which will become due as a
result of the redemption or would otherwise be payable.
Prior to the publication of any notice of redemption in accordance with
the foregoing, the Issuers shall deliver to the Trustee for such series an
Officers' Certificate stating that (i) the payment of Additional Amounts cannot
be avoided by the use of any reasonable measures available to the Issuers which
do not cause the Issuers to incur any material costs and (ii) the Issuers are
entitled to effect such redemption based on the written, substantially
unqualified Opinion of Counsel, which counsel shall be reasonably acceptable to
the Trustee, and the Issuers have or will become obligated to pay Additional
Amounts as a result of such change or amendment. The notice, once delivered by
the Issuers to the Trustee, will be irrevocable.
Section 3.2 Redemption Pursuant to Gaming Laws.
If a Holder or a beneficial owner of Securities is required by any Gaming
Authority to be found suitable to hold the Securities, the Holder shall apply
for a finding of suitability within 30 days after a Gaming Authority request or
sooner if so required by such Gaming Authority. The applicant for a finding of
suitability must pay all costs of the investigation for such finding of
suitability. If a Holder or beneficial owner is required to be found suitable to
hold the Securities and is not found suitable by a Gaming Authority, the Holder
shall, to the extent required by applicable law, dispose of his Securities
within 30 days or within that time prescribed by a Gaming Authority, whichever
is earlier. If the Holder fails to dispose of his Securities within such time
period, the Issuers may, at their option, redeem such Holder's Securities (a
"Required Regulatory Redemption") at, depending on applicable law, (i) the
principal amount thereof, together with accrued and unpaid interest to the date
of the finding of unsuitability by a Gaming Authority, (ii) the amount that such
Holder paid for the Securities, (iii) the fair market value of the Securities,
(iv) the lowest of clauses (i), (ii) and (iii), or (v) such other amount as may
be deter mined by the appropriate Gaming Authority.
Section 3.3 Notices to Trustee.
If the Issuers elect to redeem Securities of any series pursuant to this
Article III, they shall notify the Trustee in writing of the date on which the
Securities are to be redeemed ("Redemption Date") and the principal amount of
Securities to be
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redeemed and whether they want the Trustee to give notice of redemption to the
Holders in the name of and at the expense of the Issuers.
If the Issuers elect to reduce the principal amount of Securities of any
series to be redeemed pursuant to the terms of the Securities by crediting
against any such redemption Securities it has not previously delivered to the
Trustee for cancellation, it shall so notify the Trustee of the amount of the
reduction and deliver such Securities with such notice.
The Issuers shall give each notice to the Trustee provided for in this
Section 3.3 at least 45 days (unless a shorter period is acceptable to the
Trustee) before the Redemption Date (unless a different notice period shall be
required by a Gaming Authority with respect to a Required Regulatory
Redemption).
Section 3.4 Selection of Securities to Be Redeemed.
If less than all of the Securities of a series are to be redeemed (except
in the case of a Required Regulatory Redemption), the Trustee shall select from
among such Securities to be redeemed pro rata or by lot or by such other method
as the Trustee shall determine to be fair and appropriate and in such manner as
complies with any applicable legal and stock exchange requirements.
The Trustee shall make the selection from the Securities outstanding and
not previously called for redemption and shall promptly notify the Issuers in
writing of the Securities selected for redemption and, in the case of any such
Security selected for partial redemption, the principal amount thereof to be
redeemed. Securities in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Securities that have denominations larger
than $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption.
Section 3.5 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Issuers shall mail a notice of redemption by first class mail, postage prepaid,
to each Holder whose Securities are to be redeemed (unless a different notice
period shall be required by any Gaming Authority). At the Issuers' request, the
Trustee shall give the notice of redemption in the Issuers' name and at the
Issuers' expense. Each notice for redemption shall identify the Securities to be
redeemed
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(including the series) and shall state:
(1) the Redemption Date;
(2) the Redemption Price, including the amount of
accrued but unpaid interest to be paid upon such redemption;
(3) the name, address and telephone number of the
Paying Agent for the Securities being redeemed;
(4) that Securities called for redemption must be
surrendered to the Paying Agent for such Securities at the address
specified in such notice to collect the Redemption Price;
(5) that, unless (a) the Issuers default in their
obligation to deposit cash with the Paying Agent in accordance with
Section 3.7 hereof, interest on Securities called for redemption ceases to
accrue on and after the Redemption Date and the only remaining right of
the Holders of such Securities is to receive payment of the Redemption
Price, including accrued but unpaid interest, upon surrender to the Paying
Agent of the Securities called for redemption and to be redeemed;
(6) if any Security is being re deemed in part,
the portion of the principal amount, equal to $1,000 or any integral
multiple thereof, of such Security to be redeemed and that, after the
Redemption Date, and upon surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion
thereof will be issued;
(7) if less than all Securities of such series are
to be redeemed, the identification of the particular Securities (or
portion thereof) to be redeemed, as well as the aggregate principal amount
of such Securities to be redeemed and the aggregate principal amount of
Securities to be outstanding after such partial redemption;
(8) the CUSIP number of the Securities to be
redeemed; and
(9) that the notice is being sent pursuant to this
Section 3.5 and pursuant to the optional redemption provisions of the
terms of the Securities.
Section 3.6 Effect of Notice of Redemption.
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Once notice of redemption is mailed in accordance with Section 3.5,
Securities called for redemption become due and payable on the Redemption Date
and at the Redemption Price set forth in the terms of such Securities, including
accrued but unpaid interest. Upon surrender to the Trustee or Paying Agent, such
Securities called for redemption shall be paid at the Redemption Price,
including interest, if any, accrued to and unpaid on the Redemption Date;
provided that if the Redemption Date is after a regular Record Date and on or
prior to the Interest Payment Date, the accrued interest shall be payable to the
Holder of the redeemed Securities registered on the relevant Record Date; and
provided further that if a Redemption Date is a Legal Holiday, payment shall be
made on the next succeeding Business Day and no interest shall accrue for the
period from such Redemption Date to such succeeding Business Day.
Section 3.7 Deposit of Redemption Price.
On or before the Redemption Date, the Issuers shall deposit with the
Paying Agent (other than the Issuers or an Affiliate of either of the Issuers)
cash sufficient to pay the Redemption Price of, including accrued but unpaid
interest on, all Securities to be redeemed on such Redemption Date (other than
Securities or portions thereof called for redemption on that date that have been
delivered by the Issuers to the Trustee for cancellation). The Paying Agent
shall promptly return to the Issuers any cash so deposited that is not required
for that purpose upon the written request of the Issuers.
If the Issuers comply with the preceding paragraph and the other
provisions of this Article III and payment of the Securities called for
redemption is not otherwise prohibited, interest on the Securities to be
redeemed will cease to accrue on the applicable Redemption Date, whether or not
such Securities are presented for payment. Notwithstanding anything herein to
the contrary, if any Security surrendered for redemption in the manner provided
in the Securities shall not be so paid upon surrender for redemption because of
the failure of the Issuers to comply with the preceding paragraph and the other
provisions of this Article III, interest shall continue to accrue and be paid
from the Redemption Date until such payment is made on the unpaid principal,
and, to the extent lawful, on any interest not paid on such unpaid principal, in
each case at the rate and in the manner provided in Section 4.1 hereof and the
Securities.
Section 3.8 Securities Redeemed in Part.
Upon surrender of a Security of any series that is to be redeemed in part,
the Issuers shall execute and the Trustee shall
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authenticate and deliver to the Holder, without service charge, a new Security
or Securities of the same series equal in principal amount to the unredeemed
portion of the Security surrendered.
ARTICLE IV
COVENANTS
Any or all of the provisions of this Article IV 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. In addition, it shall be
established prior to the issuance of any series of Securities, pursuant to
Section 2.3, whether any covenant or covenants other than or in addition to
those specified below shall be applicable to such series. Provisions of this
Article IV not designated, pursuant to Section 2.3, 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 IV, unless the context otherwise
requires, all references to Securities (and all references to other defined
terms with respect to such series of Securities) refer only to a series of
Securities for which such provision has been designated, pursuant to Section
2.3, as being applicable.
Section 4.1 Payment of Securities.
The Issuers shall pay the principal of and interest on the Securities on
the dates and in the manner provided in the Securities and this Indenture. An
installment of principal of or interest on Securities shall be considered paid
on the date it is due if the Trustee or Paying Agent (other than the Issuers or
an Affiliate of either of the Issuers) holds for the benefit of the Holders, on
or before 10:00 a.m., New York City time, on that date, cash deposited and
designated for and sufficient to pay the installment.
The Issuers shall pay interest on overdue principal and on overdue
installments of interest at the rate specified in the Securities, to the extent
lawful.
Section 4.2 Maintenance of Office or Agency.
The Issuers and the Guarantors, if any, shall maintain in each Place of
Payment for any series of Securities, an office or agency where Securities of
such series may be presented or surrendered for payment, where Securities of
such series may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Issuers and the Guarantors, if any, in
respect of the Securities of such series and this Indenture may be served. The
Issuers and the Guarantors, if
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any, shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the corporate trust office of the
Trustee, and the Issuers hereby appoint the Trustee as their agent to receive
all presentations, surrenders, notices and demands.
The Issuers and the Guarantors, if any, may also from time to time
designate different or additional offices or agencies to be maintained for such
purposes (in or outside of such Place of Payment), and may from time to time
rescind any such designation; provided, however, that no such designation or
rescission shall in any manner relieve the Issuers of their obligations
described in the preceding paragraph. The Issuers will give prompt written
notice to the Trustee of any such additional designation or rescission of
designation and any change in the location of any such different or additional
office or agency.
Section 4.3 Limitation on Restricted Payments.
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, 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 Merger 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.
Page 53
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 SIIL,
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 4.4 Corporate Existence.
Subject to Article V, the Issuers and the Guarantors, if any, shall do or
cause to be done all things necessary to preserve and keep in full force and
effect their corporate existence and the corporate or other existence of each of
their Subsidiaries in accordance with the respective organizational documents of
each of them and the rights (charter and statutory) and corporate franchises of
the Issuers and the Guarantors, if any, and each of their Subsidiaries;
provided, however, that neither the Issuers nor any of the Guarantors, if any,
shall be required to preserve, with respect to itself, any right or franchise,
and with respect to any of their Subsidiaries, any such existence, right or
franchise, if (a) the Board of Directors of Sun International shall determine
reasonably and in good faith that the preservation thereof is no longer
desirable in the conduct of the business of the Issuers and (b) the loss thereof
is not disadvantageous in any material respect to the Holders.
Section 4.5 Payment of Taxes and Other Claims.
The Issuers and the Guarantors, if any, shall, and shall cause each of
their Subsidiaries to, pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all taxes, assessments and
governmental charges (including withholding taxes and any penalties, interest
and additions to taxes) levied or imposed upon the Issuers, any Guarantor, if
any, or any of their Subsidiaries or properties and assets of the Issuers, any
Guarantor, if any, or any of their Subsidiaries and (ii) all lawful claims,
whether for labor, materials, supplies, services or anything else, which have
become due and payable and
Page 54
which by law have or may become a Lien upon the property and assets of the
Issuers, any Guarantor, if any, or any of their Subsidiaries; provided, however,
that neither the Issuers nor any Guarantor, if any, shall be required to pay or
discharge or cause to be paid or discharged any such tax, assessment, charge or
claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings and for which disputed amounts adequate reserves have
been established in accordance with GAAP.
Section 4.6 Compliance Certificate; Notice of Default.
(a) The Issuers shall deliver to the Trustee within 120 days after
the end of their fiscal year an Officers' Certificate, one of the signers of
which shall be the principal executive, financial or accounting officer of the
Issuers, complying (whether or not required) with Section 314(a)(4) of the TIA
and stating that a review of their activities and the activities of their
Subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Issuers have kept, observed, performed and fulfilled their obligations (without
regard to notice requirements or grace periods) under this Indenture and further
stating, as to each such Officer signing such certificate, whether or not the
signer knows of any failure by the Issuers, any Guarantor, if any, or any
Subsidiary of the Issuers or any Guarantor, if any, to comply with any
conditions or covenants in this Indenture and, if such signer does know of such
a failure to comply, the certificate shall describe such failure with
particularity. The Officers' Certificate shall also notify the Trustee should
the relevant fiscal year-end on any date other than the current fiscal year end
date.
(b) So long as not contrary to the then current recommendation of
the American Institute of Certified Public Accountants, the Issuers shall
deliver to the Trustee within 120 days after the end of each of their fiscal
years a written report of a firm of independent certified public accountants
with an established national reputation stating that in conducting their audit
for such fiscal year, nothing has come to their attention that caused them to
believe that the Issuers or any Subsidiary of the Issuers were not in compliance
with the provisions set forth in Section 4.3, 4.10 or 4.13 or Article X of this
Indenture.
(c) The Issuers shall, so long as any of the Securities are
outstanding, deliver to the Trustee, immediately upon becoming aware of any
Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Issuers are
taking or propose to take with respect thereto. The Trustee shall not be
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deemed to have knowledge of a Default or an Event of Default unless one of its
Trust Officers receives notice of the Default giving rise thereto from the
Issuers or any of the Holders.
Section 4.7 Reports.
Whether or not Sun International or SINA is subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act, each of Sun
International and SINA shall deliver to the Trustee and to each Holder within 15
days after it is or would have been (if it were subject to such reporting
obligations) required to furnish such with the Commission, annual and quarterly
financial statements substantially equivalent to financial statements that would
have been included in reports filed with the Commission, if such entity were
subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Issuers' certified independent public accountants as such would be required in
such reports to the Commission, and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required and, to the extent permitted by the Exchange Act or the
Commission, file with the Commission the annual, quarterly and other reports
which it is or would have (if it were subject to such reporting obligations)
been required to file with the Commission. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuers' compliance with any of their covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
Section 4.8 Waiver of Stay, Extension or Usury Laws.
Each of the Issuers and each Guarantor, if any, covenants (to the extent
that it may lawfully do so) that it will not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law or any usury law or other law wherever enacted which would
prohibit or forgive the Issuers or any Guarantor, if any, from paying all or any
portion of the principal of or interest on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that they may lawfully do so) each of the Issuers and each Guarantor, if any,
hereby expressly waives all benefit or advantage of any such law insofar as such
law applies to the Securities, and covenant that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the
Page 56
execution of every such power as though no such law had been enacted.
Section 4.9 Limitation on Transactions with Affiliates.
None of the Issuers or any of their Subsidiaries will be permitted on or
after the Issue Date to enter into or suffer to exist any contract, agreement,
arrangement or transaction with any Affiliate (an "Affiliate Transaction"), or
any series of related Affiliate Transactions (other than Exempted Affiliate
Transactions) (i) unless it is determined that the terms of such Affiliate
Transaction are fair and reasonable to Sun International or such Subsidiary, as
applicable, and no less favorable to Sun International or such Subsidiary, as
applicable, than could have been obtained in an arm's length transaction with a
non-Affiliate and (ii) if involving consideration to either party in excess of
$2 million, unless such Affiliate Transaction(s) has been approved by a majority
of the members of the Board of Directors that are disinterested in such
transaction and (iii) if involving consideration to either party in excess of
$15 million, unless in addition to the foregoing Sun International, prior to the
consummation thereof, obtains a written favorable opinion as to the fairness of
such transaction to Sun International from a financial point of view from an
independent investment banking firm of national reputation.
Section 4.10 Limitation on Incurrence of Additional Indebtedness and
Disqualified Capital Stock.
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 2.0 to l (the "Debt Incurrence Ratio"), then the Issuers and the
Page 57
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 4.11 Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.
The Issuers and the Guarantors, if any, will not, and will not permit any
of their Subsidiaries to, individually or collectively, directly or indirectly,
create, assume or suffer to exist any consensual restriction on the ability of
any Subsidiary of Sun International, SINA or such Guarantor, if any, to pay
dividends or make other distributions to or on behalf of, or to pay any
obligation to or on behalf of, or otherwise to transfer assets or property to or
on behalf of, or make or pay loans or advances to or on behalf of, Sun
International, SINA, the Guarantors, if any, or any Subsidiary of any of them,
or to guaranty the Securities, except (a) restrictions imposed by the Securities
or herein, (b) restrictions imposed by applicable law, (c) existing restrictions
under the Credit Agreement, (d) restrictions under any Acquired Indebtedness not
incurred in violation of the Indenture or any agreement relating to any
property, asset, or business acquired by Sun International or any of its
Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition and are not applicable to any person, other than the person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired, (e) any such restriction or requirement imposed by
Indebtedness incurred under paragraph (a) of the definition of "Permitted
Indebtedness," provided such restriction or requirement is no more restrictive
than that imposed by the Credit Agreement as of the Issue Date, (f) restrictions
with respect solely to a Subsidiary of Sun International imposed pursuant to a
binding agreement that has been entered into for the sale or disposition of all
or substantially all of the Equity Interests or assets of such Subsidiary,
provided such restrictions apply solely to the Equity Interests or assets of
such Subsidiary that are being sold, (g) restrictions on transfer contained in
FF&E Indebtedness incurred pursuant to paragraph (c) of the definition of
"Permitted Indebtedness," provided such restrictions relate only to the transfer
of the property acquired with the proceeds of such FF&E Indebtedness, and (h) in
connection with and pursuant to Permitted Refinancings,
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replacements of restrictions imposed pursuant to clauses (a), (c) or (d) of this
paragraph that are not more restrictive than those being replaced and do not
apply to any other person or assets than those that would have been covered by
the restrictions in the Indebtedness so refinanced. Notwithstanding the
foregoing, neither (a) customary provisions restricting subletting or assignment
of any lease, license or contract entered into in the ordinary course of
business, consistent with industry practice, nor (b) Liens permitted under the
terms of the Indenture shall in and of themselves be considered a restriction on
the ability of the applicable Subsidiary to transfer such agreement or assets,
as the case may be.
Section 4.12 Limitation on Liens Securing Indebtedness.
The Issuers and the Guarantors, if any, will not, and will not permit any
of their Subsidiaries to, individually or collectively, create, incur, assume or
suffer to exist any Lien of any kind, other than Permitted Liens, upon any of
their respective assets now owned or acquired on or after the date of the
Indenture or upon any income or profits therefrom securing any Indebtedness of
the Issuers, the Guarantors, if any, or any of their Subsidiaries other than
Senior Debt, unless the Issuers and Guarantors, if any, each provide, and cause
their Subsidiaries to provide, concurrently therewith, that the Securities are
equally and ratably so secured, provided that, if such Indebtedness is
Subordinated Indebtedness, the Lien securing such Subordinated Indebtedness
shall be subordinate and junior to the Lien securing the Securities with the
same relative priority as such Subordinated Indebtedness shall have with respect
to the Securities.
Section 4.13 Limitation on Sale of Assets and Subsidiary Stock.
The Issuers and the Guarantors, if any, will not, and will not permit any
of their Subsidiaries to, individually or collectively, in one or a series of
related transactions, convey, sell, transfer, assign or otherwise dispose of,
directly or indirectly, any of its property, business or assets, including by
merger or consolidation (in the case of a Guarantor, if any, or a Subsidiary of
Sun International or SINA), and including any sale or other transfer or issuance
of any Equity Interests of any Subsidiary of Sun International or SINA, whether
by Sun International, SINA or a Subsidiary of either or through the issuance,
sale or transfer of Equity Interests by a Subsidiary of Sun International or
SINA, and including any sale and leaseback transaction (an "Asset Sale"), unless
(i)(a) within 360 days after the date of such Asset Sale, the Net Cash Proceeds
therefrom (the "Asset Sale Offer Amount") are applied to the
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optional redemption of the Securities in accordance with the terms of the
Indenture or to the repurchase of the Securities pursuant to an irrevocable,
unconditional cash offer (the "Asset Sale Offer") to repurchase Securities at a
purchase price of 100% of principal amount (the "Asset Sale Offer Price")
together with accrued and unpaid interest to the date of payment, made within
330 days of such Asset Sale or (b) within 330 days following such Asset Sale,
the Asset Sale Offer Amount is (1) invested in assets and property (other than
notes, bonds, obligation and securities) which in the good faith judgment of the
Board will immediately constitute or be a part of a Related Business of Sun
International, SINA or such Subsidiary (if it continues to be a Subsidiary)
immediately following such investment or (2) used to permanently reduce Senior
Debt (provided that in the case of a revolver or similar arrangement that makes
credit available, such commitment is so permanently reduced by such amount),
(ii) no more than the greater of (A) $20 million or (B) 15% of the total
consideration for such Asset Sale or series of related Asset Sales consists of
consideration other than cash or Cash Equivalents, provided however, that more
than 15% of the total consideration may consist of consideration other than cash
or Cash Equivalents if (A) the portion of such consideration that does not
consist of cash or Cash Equivalents consists of assets of a type ordinarily used
in the operation of a Related Business (including Capital Stock of a person that
becomes a wholly owned Subsidiary and that holds such assets) to be used by the
Issuers or a Subsidiary in the conduct of a Related Business, (B) the terms of
such Asset Sale have been approved by a majority of the members of the Board of
Directors of Sun International having no personal stake in such transaction, and
(C) if the value of the assets being disposed of by the Issuers or such
Subsidiary in such transaction (as determined in good faith by such members of
the Board of Directors) is at least $10 million, the Board of Directors of Sun
International has received a written opinion of a nationally recognized
investment banking firm to the effect that such Asset Sale is fair, from a
financial point of view, to Sun International and Sun International has
delivered a copy of such opinion to the Trustee, (iii) no Default or 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 Asset Sale, and (iv) if the
value of the assets disposed of is at least $5 million, the Board of Directors
of Sun International determines in good faith that Sun International or such
Subsidiary, as applicable, receives fair market value for such Asset Sale (as
evidenced by a resolution of the Board of Directors).
Notwithstanding the foregoing provisions of the prior paragraph:
(i) Sun International and its Subsidiaries may, in the
ordinary course of
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business, convey, sell, transfer, assign or otherwise dispose of inventory
acquired and held for resale in the ordinary course of business;
(ii) Sun International and its Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets pursuant to and in
accordance with Article V;
(iii) Sun International and its Subsidiaries may sell or
dispose of damaged, worn out or other obsolete property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of Sun International or such Subsidiary, as
applicable;
(iv) the Issuers and the Subsidiaries may convey, sell,
transfer, assign or otherwise dispose of assets to any Issuer or any of
their wholly owned Guarantors; and
(v) the Issuers may sell their Equity Interests in
Non-Strategic Real Estate.
An Asset Sale Offer may be deferred until the accumulated Net Cash
Proceeds from Asset Sales not applied to the uses set forth in (i) above (the
"Excess Proceeds") exceeds $20 million and that each Asset Sale Offer shall
remain open for 20 Business Days following its commencement (the "Asset Sale
Offer Period"). Upon expiration of the Asset Sale Offer Period, the Issuers
shall apply the Asset Sale Offer Amount plus an amount equal to accrued and
unpaid interest to the purchase of all Securities properly tendered (on a pro
rata basis if the Asset Sale Offer Amount is insufficient to purchase all
Securities so tendered) at the Asset Sale Offer Price (together with accrued and
unpaid interest). To the extent that the aggregate amount of Securities tendered
pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the
Issuers may use any remaining Net Cash Proceeds for general corporate purposes
as otherwise permitted by the Indenture and following the consummation of each
Asset Sale Offer the Excess Proceeds amount shall be reset to zero. For purposes
of (ii) above, total consideration received means the total consideration
received for such Asset Sales minus the amount of (a) Senior Debt assumed by a
transferee which assumption permanently reduces the amount of Indebtedness
outstanding on the Issue Date or permitted pursuant to clause (a) or (c) of the
definition of Permitted Indebtedness (including that in the case of a revolver
or similar arrangement that makes credit available, such commitment is so
reduced by such amount), (b) FF&E Indebtedness secured solely by the assets sold
and assumed by a transferee and (c) property that within 30 days of such Asset
Sale is converted into Cash or Cash Equivalents).
All Net Cash Proceeds from an Event of Loss shall be invested, used
for prepayment of Senior Debt, or used to repurchase Securities, all within the
period and as otherwise provided above in clauses (i)(a) or (i)(b) of the first
paragraph of this covenant.
In addition to the foregoing, Sun International will not, and will
not permit any Subsidiary to, directly or indirectly make any Asset Sale of any
of the Equity Interests of any Subsidiary except (i) pursuant to an Asset Sale
of all the Equity Interests of such Subsidiary or (ii) pursuant to an Asset Sale
of shares of common stock with no preferences or special rights or privileges
and with no redemption or prepayment provisions, provided that after such sale
the Issuers or their Subsidiaries own at least 50.1% of the voting and economic
interests of the Capital Stock of such Subsidiary.
Notice of an Asset Sale Offer shall be sent, on or prior to the
commencement of the Asset Sale Offer, by first-class mail, by the Issuers to
each Holder at its registered address, with a copy to the Trustee. The Asset
Sale Offer shall remain open for at least 20 Business Days following its
commencement. The notice to the Holders shall contain all information,
instructions and materials required by applicable law or otherwise material to
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such Holders' decision to tender Securities pursuant to the Asset Sale Offer.
The notice, which (to the extent consistent with this Indenture) shall govern
the terms of an Asset Sale Offer, shall state:
(1) that the Asset Sale Offer is being made
pursuant to such notice and this Section 4.13;
(2) the Asset Sale Offer Amount, the Asset Sale
Offer Price (including the amount of accrued but unpaid interest) and the
date of purchase;
(3) that any Security or portion thereof not
tendered or accepted for payment will continue to accrue interest if
interest is then accruing;
(4) that, unless the Issuers default in depositing
cash with the Paying Agent (which may not for purposes of this Section
4.13, notwithstanding anything in this Indenture to the contrary, be the
Issuers or any Affiliate of either of the Issuers) in accordance with the
last paragraph of this clause (b), any Security, or portion thereof,
accepted for payment pursuant to the Asset Sale Offer shall cease to
accrue interest after the Asset Sale Purchase Date;
(5) that Holders electing to have a Security, or
portion thereof, purchased pursuant to an Asset Sale Offer will be
required to surrender their Security, with the form entitled "Option of
Holder to Elect Purchase" on the reverse of the Security completed, to the
Paying Agent (which may not for purposes of this Section 4.13,
notwithstanding any other provision of this Indenture, be the Issuers or
any Affiliate of either of the Issuers) at the address specified in the
notice;
(6) that Holders will be entitled to withdraw
their elections, in whole or in part, if the Paying Agent receives, prior
to the expiration of the Asset Sale Offer, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount of the
Securities the Holder is withdrawing and a statement containing a
facsimile signature and stating that such Holder is withdrawing his
election to have such principal amount of Securities purchased;
(7) that if Securities in a principal amount in
excess of the principal amount of Securities to be acquired pursuant to
the Asset Sale Offer are tendered and not withdrawn, the Issuers shall
purchase Securities on a
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pro rata basis (with such adjustments as may be deemed appropriate by the
Issuers so that only Securities in denominations of $1,000 or integral
multiples of $1,000 shall be acquired);
(8) that Holders whose Securities were purchased
only in part will be issued new Securities equal in principal amount to
the unpurchased portion of the Securities surrendered; and
(9) the circumstances and relevant facts regarding
such Asset Sales.
The Issuers agree that any Asset Sale Offer shall be made in compliance
with all applicable laws, rules, and regulations, including, if applicable,
Regulation 14E of the Exchange Act and the rules and regulations thereunder and
all other applicable Federal and state securities laws, and any provisions of
this Indenture which conflict with such laws shall be deemed to be superseded by
the provisions of such laws.
On or before the date of purchase, the Issuers shall (i) accept for
payment Securities or portions thereof properly tendered pursuant to the Asset
Sale Offer (on a pro rata basis if required pursuant to paragraph (7) above),
(ii) deposit with the Paying Agent cash sufficient to pay the Asset Sale Offer
Price for all Securities or portions thereof so accepted and (iii) deliver to
the Trustee Securities so accepted together with an Officers' Certificate
setting forth the Securities or portions thereof being purchased by the Issuers.
The Paying Agent shall promptly mail or deliver to Holders of Securities so
accepted payment in an amount equal to the Asset Sale Offer Price for such
Securities, and the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Security equal in principal amount to any unpurchased portion
of the Security surrendered. Any Securities not so accepted shall be promptly
mailed or delivered by the Issuers to the Holder thereof.
Section 4.14 Limitation on Layering Indebtedness.
The Issuers and the Guarantors, if any, will not, individually or
collectively, directly or indirectly, incur, or suffer to exist any Indebtedness
that is subordinate in right of payment to any other Indebtedness of either
Issuer or any Guarantor, if any, unless, by its terms, such Indebtedness is
subordinate in right of payment to, or ranks pari passu with, the Securities or
the Guarantee, if any, as applicable.
Section 4.15 Limitation on Lines of Business.
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None of the Issuers or any of their Subsidiaries shall directly or
indirectly engage to any substantial extent in any line or lines of business
activity other than that which, in the good faith judgment of the Board of
Directors of the Sun International, is a Related Business.
Section 4.16 Limitation on Status as Investment Company.
None of Sun International or any of its Subsidiaries shall become required
to be registered as an "investment company" (as that term is defined in the
Investment Company Act of 1940, as amended), or otherwise become subject to
regulation under the Investment Company Act.
Section 4.17 Future Subsidiary Guarantors.
The Issuers covenant and agree that, if any Guarantees are outstanding,
they shall cause each person that becomes a Subsidiary of either Issuer to
execute a Guarantee in the form of each Guarantee outstanding pursuant to
Section 2.03 and shall cause such Subsidiary to enter into a supplemental
indenture for the purpose of jointly and severally guaranteeing, irrevocably and
unconditionally, on a senior subordinated basis, the Issuers' obligations to pay
principal, premium and interest on the Securities.
Section 4.18 Payment for Consent.
None of the Issuers or any of their Subsidiaries or Unrestricted
Subsidiaries shall, directly or indirectly, pay or cause to be paid any
consideration, whether by way of interest, fee or otherwise, to any Holder of
any Securities for, or as an inducement to, any consent, waiver or amendment of
any of the terms or provisions of the Indenture or the Securities unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Securities which so consent, waive or agree to amend in the time frame set forth
in the solicitation documents relating to such consent, waiver or agreement,
which solicitation documents must be mailed to all Holders of the Securities
prior to the expiration of the solicitation.
Section 4.19 Suspended Covenants.
During any period of time that (i) the Securities have Investment Grade
Status and (ii) no Default or Event of Default has occurred and is continuing
under the Indenture with respect to the Securities, the Issuers and their
Subsidiaries will not be subject to Section 4.3, 4.10 or 4.13 (collectively, the
"Suspended Covenants"). In the event that the Issuers and their Subsidiaries are
not subject to the Suspended Covenants with
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respect to the Securities for any period of time as a result of the preceding
sentence and, subsequently, either of the Rating Agencies withdraws its rating
or assigns the Securities a rating below the required Investment Grade Ratings,
then the Issuers and their Subsidiaries will thereafter again be subject to the
Suspended Covenants for the benefit of the Securities and compliance with
Section 4.3 made after the time of such withdrawal or assignment will be
calculated in accordance with the terms of Section 4.3 as if such covenant had
been in effect during the entire period of time from the Issue Date with respect
to the Securities.
Section 4.20 Payment of Additional Amounts.
The Issuers will, subject to the limitations and exceptions set forth
below, pay to each Holder such amounts (the "Additional Amounts") as may be
necessary in order that every net payment or deemed payment of (i) principal,
premium and interest, if any, with respect to a Security, or (ii) net proceeds
on the sale or exchange of a Security, each after deduction or withholding for
or on account of any taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of the government of The
Bahamas or any authority thereof or therein having power to tax, will result in
the receipt by the Holders of the amounts that would have been received by them
had no such deduction or withholding been required; provided, however, that no
such Additional Amounts shall be payable in respect of any Security for:
(1) any tax, duty, assessment, or other governmental charge which would
not have been imposed but for the fact that such Holder:
(a) is a resident, domiciliary or national of, or
engaged in business or maintains a permanent establishment or was
physically present in, The Bahamas or any political subdivision thereof or
therein or otherwise has some connection with The Bahamas other than the
mere ownership of, or receipt of payment under, such Security;
(b) presented such Security for payment in The Bahamas
or any political subdivision thereof or therein, unless such Security
could not have been presented for payment elsewhere; or
(c) presented such Security for payment more than 30
days after the date on which the payment in respect of such Security
became due and payable or provided for, whichever is later, except to the
extent that the Holder would have been entitled to such Additional Amounts
if it had presented such Security for payment on any day within
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such period of 30 days;
(2) any estate, inheritance, gift, sales, transfer, or similar tax,
assessment or other governmental charge or any taxes, duties, assessments or
other governmental charges that are payable otherwise than by deduction or
withholding from payments on the Security;
(3) any tax, duty, assessment, or other governmental charge imposed on a
Holder that is not the beneficial owner of a Security to the extent that the
beneficial owner would not have been entitled to the payment of Additional
Amounts had the beneficial owner directly held the Security; or
(4) any combination of items (1), (2) and (3);
Whenever there is mentioned herein in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security or
the net proceeds received on the sale or exchange of any Security, such mention
shall be deemed to include mention of the payment of Additional Amounts provided
for in the Indenture to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to the Indenture.
Without limiting a Holder's right to receive payment of Additional
Amounts, in the event that Additional Amounts actually paid with respect to the
Securities are based on rates of deduction or withholding of Bahamian taxes in
excess of the appropriate rate applicable to the Holder of such Securities and,
as a result thereof, such Holder of Securities is entitled to make a claim for a
refund or credit of such excess, then such Holder of Securities shall, by
accepting the Securities and receiving a payment of Additional Amounts, be
deemed to have assigned and transferred all right, title and interest to any
such claim for a refund or credit of such excess to the Issuers. By making such
assignment, the Holder of Securities makes no representation or warranty that
the Issuers will be entitled to receive such claim for a refund or credit and
incurs no other obligation with respect thereto.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 Limitation on Merger, Sale or Consolidation.
Neither of the Issuers will, directly or indirectly, consolidate with or
merge with or into another person or sell,
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lease, convey or transfer all or substantially all of its assets (computed as to
each Issuer on a consolidated basis), whether in a single transaction or a
series of related transactions, to another person or group of affiliated persons
or adopt a Plan of Liquidation, unless (i) either (a) Sun International or SINA,
as applicable, is the resulting surviving or transferee entity (the "Successor
Company") or (b) the Successor Company or, in the case of a Plan of Liquidation,
the entity which receives the greatest value from such Plan of Liquidation is a
corporation organized under the laws of the Commonwealth of the Bahamas (in the
case of Sun International only) or the United States, any state thereof or the
District of Columbia and expressly assumes by supplemental indenture all of the
obligations of Sun International or SINA, as applicable, in connection with the
Securities and the Indenture; (ii) no Default or Event of Default shall exist or
shall occur immediately after giving effect on a pro forma basis to such
transaction; and (iii) immediately after giving effect to such transaction on a
pro forma basis, the Consolidated Net Worth of the Successor Company or, in the
case of a Plan of Liquidation, the entity which receives the greatest value from
such Plan of Liquidation is at least equal to the Consolidated Net Worth of Sun
International or SINA, as applicable, immediately prior to such transaction; and
(iv) immediately after giving effect to such transaction on a pro forma basis,
the Successor Company or, in the case of a Plan of Liquidation, the entity which
receives the greatest value from such Plan of Liquidation would immediately
thereafter be permitted to incur at least $1.00 of additional Indebtedness
pursuant to the Debt Incurrence Ratio set forth in Section 4.10, if such
covenant applies to a series of outstanding Securities.
On or prior to the consummation of the proposed transaction, the Issuers
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or disposition and such supplemental indenture
executed in connection therewith comply with this Indenture. The Trustee shall
be entitled to conclusively rely upon such Officers' Certificate and Opinion of
Counsel.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of all or substantially all of the properties and assets of one or
more Subsidiaries, the interest of Sun International or SINA, as applicable, in
which constitutes all or substantially all of the properties and assets of Sun
International or SINA, as applicable, shall be deemed to be the transfer of all
or substantially all of the properties and assets of Sun International, or SINA,
as applicable.
Section 5.2 Successor Corporation Substituted.
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Upon any consolidation or merger or any transfer of all or substantially
all of the assets of Sun International or SINA, as applicable, or consummation
of a Plan of Liquidation in accordance with the foregoing, the successor
corporation formed by such consolidation or into which Sun International or SINA
is merged or to which such transfer is made or, in the case of a Plan of
Liquidation, the entity which receives the greatest value from such Plan of
Liquidation shall succeed to, and be substituted for, and may exercise every
right and power of, Sun International or SINA, as applicable, under the
Indenture with the same effect as if such successor corporation had been named
therein as Sun International or SINA, as applicable, and Sun International or
SINA, as applicable, shall be released from the obligations under the Securities
and the Indenture except with respect to any obligations that arise from, or are
related to, such transaction.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Any or all of the provisions of this Article VI 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. In addition, it shall be
established prior to the issuance of any series of Securities, pursuant to
Section 2.3, whether any default or event of default other than or in addition
to those specified below shall be applicable to such series. Provisions of this
Article VI not designated, pursuant to Section 2.3, 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 VI, unless the context otherwise
requires, all references to Securities (and all references to other defined
terms with respect to such series of Securities) refer only to a series of
Securities for which such provision has been designated, pursuant to Section
2.3, as being applicable.
Section 6.1 Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
caused voluntarily or involuntarily or effected, without limitation, by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
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(1) the failure by the Issuers to pay any
installment of interest the Securities as and when the same becomes due
and payable and the continuance of any such failure for 30 days;
(2) the failure by the Issuers to pay all or any
part of the principal, or premium, if any, on the Securities when and as
the same becomes due and payable at maturity, redemption, by acceleration
or otherwise, whether or not prohibited by the subordination provisions of
the Indenture, including, without limitation, payment of the Change of
Control Purchase Price or the Asset Sale Offer Price, or otherwise;
(3) the failure by either of the Issuers or any of
their Subsidiaries otherwise to comply with Section 4.13 and Articles V
and X;
(4) (A) failure by either of the Issuers or any of
their Subsidiaries to observe or perform any other covenant or agreement
contained in Article IV (except as provided in clauses (1), (2) and (3)
above) and the continuance of such failure for a period of 30 days after
written notice is given to the Issuers by the Trustee or to the Issuers
and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities then outstanding, or (B) failure by either of the
Issuers or any of their Subsidiaries to observe or perform any other
covenant or agreement contained in the Securities or herein (except as
provided for in clauses (1), (2), (3) and (4)(A) above) and the
continuance of such failure for 60 days after written notice is given to
the Issuers by the Trustee or the Issuers and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Securities then
outstanding;
(5) a decree, judgment, or order by a court of
competent jurisdiction shall have been entered adjudicating either or both
of the Issuers or any of their Significant Subsidiaries as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of either or both of the Issuers or any of their
Significant Subsidiaries under any bankruptcy or similar law, and such
decree or order shall have continued undischarged and unstayed for a
period of 60 consecutive days; or a decree or order of a court of
competent jurisdiction, judgment appointing a receiver, liquidator,
trustee, or assignee in bankruptcy or insolvency for either or both of the
Issuers, any of their Significant Subsidiaries, or any substantial part of
the property of any
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such person, or for the winding up or liquidation of the affairs of any
such person, shall have been entered, and such decree, judgment, or order
shall have remained in force undischarged and unstayed for a period of 60
days;
(6) either or both of the Issuers or any of their
Significant Subsidiaries shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under any bankruptcy or similar law or similar
statute, or shall consent to the filing of any such petition, or shall
consent to the appointment of a Custodian, receiver, liquidator, trustee,
or assignee in bankruptcy or insolvency of it or any substantial part of
its assets or property, or shall make a general assignment for the benefit
of creditors, or shall admit in writing its inability to pay its debts as
they become due;
(7) a default in Indebtedness of either of the
Issuers or any of their Subsidiaries with an aggregate principal amount in
excess of $10 million (a) resulting from the failure to pay any principal
at final stated maturity or (b) as a result of which the maturity of such
Indebtedness has been accelerated prior to its stated maturity;
(8) final unsatisfied judgments not covered by
insurance aggregating in excess of $10 million, at any one time rendered
against either of the Issuers or any of their Subsidiaries and either (a)
the commencement by any creditor of any enforcement proceeding upon any
such judgment that is not promptly stayed or (b) such judgment is not
stayed, bonded or discharged within 60 days; and
(9) any other Event of Default provided under the
terms of the Securities pursuant to Section 2.3.
Section 6.2 Acceleration of Maturity Date; Rescission and Annulment.
If an Event of Default occurs and is continuing (other than an Event of
Default specified in clauses (5) and (6), above, relating to either of the
Issuers or any of their Significant Subsidiaries,) then in every such case,
unless the principal of all of the series of Securities shall have already
become due and payable, either the Trustee or the Holders of 25% in aggregate
principal amount of the Securities then outstanding, by notice in writing to the
Issuers (and to the Trustee if given by Holders) (an "Acceleration Notice"), may
declare all principal and
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premium, if any, determined as set forth below, and accrued and unpaid interest
thereon to be due and payable immediately; provided, however, that if any Senior
Debt is outstanding pursuant to the Credit Agreement, such acceleration shall
not be effective until the earlier of (x) the fifth Business Day after the
giving to Sun International and the Representative of such written notice,
unless such Event of Default is cured or waived prior to such date and (y) the
date of acceleration of any Senior Debt under the Credit Agreement. If an Event
of Default specified in clauses (5) and (6) above relating to either of the
Issuers or any of their Significant Subsidiaries occurs, all principal and
accrued interest thereon will be immediately due and payable on all outstanding
Securities without any declaration or other act on the part of Trustee or the
Holders.
At any time after such a declaration of acceleration being made and before
a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article VI, the Holders of a majority in
aggregate principal amount of then outstanding Securities, by written notice to
the Issuers and the Trustee, may rescind, on behalf of all Holders, any such
declaration of acceleration if:
(1) the Issuers have paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any,
applicable to) any Securities which would become due otherwise than
by such declaration of acceleration, and interest thereon at the
rate borne by the Securities,
(C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate borne
by the Securities,
(D) all sums paid or advanced by the Trustee
hereunder and the compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and
(2) all Events of Default, other than the
nonpayment of amounts which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 6.12.
Notwithstanding the previous sentence of this Section 6.2, no
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waiver shall be effective for any Event of Default or event which with notice or
lapse of time or both would be an Event of Default with respect to any covenant
or provision which cannot be modified or amended without the consent of the
Holder of each outstanding Security, unless all such affected Holders agree, in
writing, to waive such Event of Default or other event. No such waiver shall
cure or waive any subsequent default or impair any right consequent thereon.
Section 6.3 Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Issuers covenant that if an Event of Default in payment of principal,
premium, or interest specified in Section 6.1(1) or (2) occurs and is
continuing, the Issuers shall, upon demand of the Trustee, pay to it, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for principal, premium (if any) and interest and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate borne by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
compensation to, and expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Issuers fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust in favor of the
Holders, may institute a judicial proceeding for the collection of the sums so
due and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Issuers or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Issuers or any other obligor
upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
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liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Issuers or any other obligor upon the
Securities or the property of the Issuers or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Issuers for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise to take any and
all actions under the TIA, including
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect
of the Securities and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment, or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5 Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding
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instituted by the Trustee shall be brought in its own name as trustee of an
express trust in favor of the Holders, and any recovery of judgment shall, after
provision for the payment of compensation to, and expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section 6.6 Priorities.
Subject to Article XII, any money collected by the Trustee pursuant to
this Article VI shall be applied in the following order, at the date or dates
fixed by the Trustee and, in case of the distribution of such money on account
of principal, premium (if any) or interest, upon presentation of the Securities
and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the Trustee in payment of all amounts due pursuant to Section
7.7;
SECOND: To the Holders in payment of the amounts then due and unpaid for
principal of, premium (if any) and interest on, the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium (if any) and interest,
respectively; and
THIRD: To whomsoever may be lawfully entitled thereto, the remainder, if
any.
Section 6.7 Limitation on Suits.
No Holder of any Security shall have any right to order or direct the
Trustee to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(A) such Holder has previously given written
notice to the Trustee of a continuing Event of Default;
(B) the Holders of not less than 25% in
principal amount of then outstanding Securities shall have made
written request to the Trustee to institute proceedings in respect
of such Event of Default in its own name as Trustee hereunder;
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(C) such Holder or Holders have offered to
the Trustee reasonable security or indemnity against the costs,
expenses and liabilities to be incurred or reasonably probable to be
incurred in compliance with such request;
(D) the Trustee for 60 days after its
receipt of such notice, request and offer of indemnity has failed to
institute any such proceeding; and
(E) no direction inconsistent with such
written request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the
outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
Section 6.8 Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision of this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, and premium (if any) and interest on, such Security
on the Maturity Dates or Interest Payment Dates, as applicable, of such payments
as expressed in such Security (in the case of redemption, the Redemption Price
on the Redemption Date; in the case of a Change of Control, the Change of
Control Purchase Price, on the Change of Control Purchase; and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 6.9 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or
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employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 6.10 Delay or Omission Not Waiver.
No delay or omission by the Trustee or by any Holder of any Security to
exercise any right or remedy arising upon any Event of Default shall impair the
exercise of any such right or remedy or constitute a waiver of any such Event of
Default. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 6.11 Control by Holders.
The Holder or Holders of a majority in aggregate principal amount of then
outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred upon the Trustee; provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture,
(2) the Trustee shall not determine that the
action so directed would be unjustly prejudicial to the Holders not taking
part in such direction, and
(3) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 6.12 Waiver of Past Default.
Subject to Section 6.8, the Holder or Holders of not less than a majority
in aggregate principal amount of the outstanding Securities may, by written
notice to the Trustee on behalf of all Holders, prior to the declaration of the
maturity of the Securities, waive any past default hereunder and its
consequences, except a default
(A) in the payment of the principal of,
premium, if any, or interest on, any Security as specified in
clauses (1) and (2) of Section 6.1, or
(B) in respect of a covenant or provision
hereof which, under Article IX, cannot be
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modified or amended without the consent of the Holder of each
outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair the exercise of any right arising therefrom.
Section 6.13 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted to be taken by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section 6.13 shall not apply to any
suit instituted by the Issuers, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in aggregate principal amount of the outstanding Securities, or to
any suit instituted by any Holder for enforcement of the payment of principal
of, or premium (if any) or interest on, any Security on or after the Maturity
Date of such Security.
Section 6.14 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every case, subject to any determination in such
proceeding, the Issuers, the Guarantors, the Trustee and the Holder or Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holder or Holders
shall continue as though no such proceeding had been instituted.
ARTICLE VII
TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
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Indenture and covenants and agrees to perform the same, as herein expressed.
Section 7.1 Duties of Trustee.
(a) If a Default or an Event of Default has occurred and is
continuing with respect to any series of Securities, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture and use the same
degree of care and skill in their exercise as a prudent person would exercise or
use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of a Default or an Event of
Default with respect to any series of Securities:
(1) The Trustee with respect to such series need
perform only those duties as are specifically set forth in this Indenture
and no others, and no covenants or obligations shall be implied in or read
into this Indenture which are adverse to the Trustee.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of
subsection (b) of this Section 7.1.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was grossly negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.12.
(d) The Trustee shall comply with any order or
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directive of a Gaming Authority that the Trustee submit, at the expense of the
Issuers, an application for any license, finding of suitability or other
approval pursuant to any gaming law and will cooperate fully and completely in
any proceeding related to such application; provided, however, that in the event
the Trustee in its reasonable judgment determines that complying with such order
or directive would subject it or its officers or directors to unreasonable or
onerous requirements, the Trustee may, at its option, resign as Trustee in lieu
of complying with such order or directive; and provided, further, that no
resignation shall become effective until a successor Trustee is appointed and
delivers a written acceptance in accordance with Section 7.8 hereof.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or to take or omit to take any action
under this Indenture or at the request, order or direction of the Holders or in
the exercise of any of its rights or powers if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it.
(f) Every provision of this Indenture that in any way relates to the
Trustee is subject to subsections (a), (b), (c), (d) and (e) of this Section
7.1.
(g) The Trustee shall not be liable for interest on any assets
received by it except as the Trustee may agree in writing with the Issuers.
Assets held in trust by the Trustee need not be segregated from other assets
except to the extent required by law.
Section 7.2 Rights of Trustee.
Subject to Section 7.1:
(a) The Trustee may conclusively rely on any document believed by it
to be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may consult
with counsel of its selection and may require an Officers' Certificate or an
Opinion of Counsel, which shall conform to Sections 13.4 and 13.5. The Trustee
shall not be liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
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(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any agent appointed with
due care.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, notice, request, direction, consent, order, bond,
debenture, or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby.
(g) Except with respect to Section 4.1, the Trustee shall have no
duty to inquire as to the performance of the Issuers' covenants in Article IV
hereof. In addition, the Trustee shall not be deemed to have knowledge of any
Default or Event of Default except (i) any Event of Default occurring pursuant
to Sections 6.1(1), 6.1(2) and 4.1, or (ii) any Default or Event of Default of
which the Trustee shall have received written notification or obtained actual
knowledge.
Section 7.3 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner
or pledgee of Securities of any series and may otherwise deal with the Issuers,
any Guarantor, if any, any of their respective Subsidiaries, or their respective
Affiliates with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee must comply with Sections
7.10 and 7.11.
Section 7.4 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of this
Indenture or the Securities and it shall not be accountable for the Issuers' use
of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities (other than the Trustee's certificate of
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authentication) or for the use or application of any funds received by a Paying
Agent other than the Trustee.
Section 7.5 Notice of Defaults.
If a Default or an Event of Default with respect to any series of
Securities occurs and is continuing and if it is actually known to the Trustee
for such Securities, the Trustee shall mail to each Securityholder of such
series notice of the uncured Default or Event of Default within 90 days after
such Default or Event of Default occurs. Except in the case of a Default or an
Event of Default in payment of principal (or premium, if any) of, or interest on
such series of Securities (including the payment of the Change of Control
Purchase Price on the Change of Control Purchase Date, the Redemption Date, and
the Asset Sale Offer Price on the relevant purchase date), the Trustee may
withhold the notice if and so long as a Trust Officer in good faith determines
that withholding the notice is in the interest of the Securityholders of such
series.
Section 7.6 Reports by Trustee to Holders.
If required by law, within 60 days after each January 31 beginning with
the January 31 following the date of this Indenture, the Trustee with respect to
each series of securities shall mail to each Securityholder of such series a
brief report dated as of such January 31 that complies with TIA ss. 313(a). If
required by law, the Trustee with respect to each series of securities also
shall comply with TIA ss.ss. 313(b) and 313(c).
The Issuers shall promptly notify the Trustee in writing if the Securities
of any series become listed on any stock exchange or automatic quotation system.
A copy of each report at the time of its mailing to Securityholders shall
be mailed to the Issuers and filed with the SEC and each stock exchange, if any,
on which the Securities are listed.
Section 7.7 Compensation and Indemnity.
The Issuers shall pay to the Trustee from time to time such compensation
as shall be agreed in writing between the Issuers and the Trustee for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuers shall reimburse the
Trustee upon request for all reasonable disbursements, expenses and advances
incurred or made by it. Such expenses shall include the reasonable compensation,
disbursements, fees and expenses of the Trustee's agents, accountants, experts
and counsel.
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The Issuers shall indemnify the Trustee (in its capacity as Trustee,
Registrar and Paying Agent) and each of its officers, directors,
attorneys-in-fact and agents for, and hold it harmless against, any claims,
loss, damage, demand, fee, expense (including but not limited to reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel),
loss or liability incurred by them without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
trust and their rights or duties hereunder including the reasonable costs and
expenses of defending them selves against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Issuers promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Issuers shall defend the claim and
the Trustee shall provide reasonable cooperation at the Issuers' expense in the
defense. The Trustee may have separate counsel and the Issuers shall pay the
reasonable fees and expenses of such counsel; provided that the Issuers will not
be required to pay such fees and expenses if they assume the Trustee's defense
and there is no conflict of interest between the Issuers and the Trustee in
connection with such defense. The Issuers need not pay for any settlement made
without their written consent. The Issuers need not reimburse any expense or
indemnify against any loss or liability to the extent incurred by the Trustee
through its negligence, bad faith or wilful misconduct.
To secure the Issuers' payment obligations in this Section 7.7, the
Trustee with respect to each series of Securities shall have a lien prior to the
Securities of such series on all assets held or collected by the Trustee, in its
capacity as Trustee, except assets held in trust to pay principal and premium,
if any, of or interest on particular Securities of such series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The Issuers' obligations under this Section 7.7 and any lien arising
hereunder shall survive the resignation or removal of the Trustee, the discharge
of the Issuers' obligations pursuant to Article VIII of this Indenture and any
rejection or termination of this Indenture under any Bankruptcy Law.
Section 7.8 Replacement of Trustee.
The Trustee with respect to any series of Securities may
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resign by so notifying the Issuers in writing; provided, however, that no such
resignation shall be effective until a successor Trustee with respect to such
series has accepted its appointment pursuant to this Section 7.8. The Holder or
Holders of a majority in principal amount of the outstanding Securities of any
series may remove Trustee for such series by so notifying the Issuers and such
Trustee in writing and may appoint a successor trustee with the Issuers'
consent. The Issuers may remove the Trustee with respect to any series of
Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver, Custodian, or other public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason with respect to the Securities of one or more series,
the Issuers shall promptly appoint a successor Trustee with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any series. Within one year after the successor Trustee takes
office, the Holder or Holders of a majority in principal amount of the
Securities of such series may appoint a successor Trustee to replace the
successor Trustee appointed by the Issuers.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Issuers. Immediately after that and provided
that all sums owing to the Trustee provided for in Section 7.7 have been paid,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee, subject to the lien provided in Section 7.7, the resignation
or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. A successor Trustee shall mail notice of its succession to each
Holder.
In case of the appointment hereunder of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Issuers, the retiring
Trustee and each successor
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Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees as co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates, but, on request of
the Issuers or any successor Trustee, such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, subject, nevertheless, to its lien, if any,
provided for in Section 7.7. Each successor Trustee shall mail a notice of its
succession to the Holders of Securities of the particular series with respect to
which such successor Trustee has been appointed.
If a successor Trustee with respect to the Securities of such series does
not take office within 60 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Issuers or the Holder or Holders of at least 10% in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
If the Trustee fails to comply with Section 7.10, any Securityholder of
any series for which the Trustee acts in such capacity may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor
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Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8,
the Issuers' obligations under Section 7.7 shall continue for the benefit of the
retiring Trustee.
Section 7.9 Successor Trustee by Merger, etc.
If the Trustee with respect to the Securities of any series consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation, the resulting, surviving or
transferee corporation without any further act shall, if such resulting,
surviving or transferee corporation is otherwise eligible hereunder, be the
successor Trustee with respect to the Securities of such series.
Section 7.10 Eligibility; Disqualification.
The Trustee with respect to the securities of each series of Securities
shall at all times satisfy the requirements of TIA ss. 310(a)(1) and TIA ss.
310(a)(5). The Trustee with respect to the securities of each series of
Securities shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition. The Trustee
with respect to the securities of each series of Securities shall comply with
TIA ss. 310(b).
Section 7.11 Preferential Collection of Claims against Issuers.
The Trustee with respect to the securities of each series of Securities
shall comply with TIA ss. 311(a), excluding any creditor relationship listed in
TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to
TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Option to Effect Legal Defeasance or Covenant Defeasance.
The Issuers may, at their option, by Board Resolution, at any time, elect
to have Section 8.2 or Section 8.3 applied to all outstanding Securities or all
outstanding Securities of any series upon compliance with the conditions set
forth below in this Article VIII.
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Section 8.2 Legal Defeasance and Discharge.
Upon the Issuers' exercise under Section 8.1 of the option applicable to
this Section 8.2, the Issuers and the Guarantors, if any, shall be deemed to
have been discharged from their respective obligations with respect to all
outstanding Securities or all outstanding securities of any series (the
"Defeased Securities") on the date the conditions set forth below are satisfied
(hereinafter, "Legal Defeasance"). For this purpose, such Legal Defeasance means
that the Issuers shall be deemed to have paid and discharged the entire
Indebtedness represented by the Defeased Securities, which shall thereafter be
deemed to be "outstanding" only for the purposes of Section 8.5 and the other
Sections of this Indenture referred to in (a) and (b) below, and to have
satisfied all their other obligations under such Defeased Securities and this
Indenture (and the Trustee, on demand of and at the expense of the Issuers,
shall execute proper instruments acknowledging the same), except for the
following which shall survive until otherwise terminated or discharged
hereunder: (a) the rights of Holders of Defeased Securities to receive solely
from the trust fund described in Section 9.4, and as more fully set forth in
such section, payments in respect of the principal of, premium, if any, and
interest on such Securities when such payments are due, (b) the Issuers'
obligations with respect to such Defeased Securities under Sections 2.4, 2.6,
2.7, 2.10 and 4.2, (c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and the Issuers' obligations in connection therewith and (d)
this Article VIII. Subject to compliance with this Article VIII, the Issuers may
exercise their option under this Section 8.2 notwithstanding the prior exercise
of their option under Section 8.3 with respect to a series of Securities.
Section 8.3 Covenant Defeasance.
Upon the Issuers' exercise under Section 8.1 of the option applicable to
this Section 8.3, the Issuers shall be re leased from their obligations under
the covenants contained in Sections 4.3, 4.6, 4.7, 4.9, 4.10, 4.11, 4.12, 4.13,
4.14, 4.15 and 4.16, Article V and Article X, in each case, as applicable, with
respect to the Defeased Securities on and after the date the conditions set
forth below are satisfied (hereinafter, "Covenant Defeasance"), and the Defeased
Securities shall thereafter be deemed not "outstanding" for the purposes of any
direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder. For this
purpose, such Covenant Defeasance means that, with respect to the Defeased
Securities, the Issuers need not comply with and shall have no liability in
respect of
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any term, condition or limitation set forth in any such covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
covenant or by reason of any reference in any such covenant to any other
provision herein or in any other document, but, except as specified above, the
remainder of this Indenture and such Defeased Securities shall be unaffected
thereby. In addition, upon the Issuers' exercise under Section 8.1 of the option
applicable to this Section 8.3, Sections 6.1(3) through 6.1(8) shall not
constitute Events of Default.
Section 8.4 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.2 or Section 8.3 to the outstanding Securities or a series thereof, as
the case may be:
(a) The Issuers shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 7.10 who shall agree to comply with the provisions of this Article VIII
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities, (a) cash in an amount, or (b)
U.S. Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not
later than one day before the due date of any payment, cash in an amount, or (c)
a combination thereof, in such amounts, as in each case will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge the principal of, premium, if any, and interest on the outstanding
Securities of such series on the stated maturity or on the applicable redemption
date, as the case may be, of such principal or installment of principal,
premium, if any, or interest; provided that the Trustee shall have been
irrevocably instructed to apply such funds to said payments with respect to such
Securities.
(b) In the case of an election under Section 8.2, the Issuers shall
have delivered to the Trustee for the applicable series an Opinion of Counsel in
the United States reasonably satisfactory to the Trustee confirming that (i)
the Issuers have received from, or there has been published by, the Internal
Revenue Service a ruling or (ii) since the date hereof, there has been a change
in the applicable Federal income tax law, in either case to the effect that, and
based thereon such opinion shall confirm that, the Holders of the outstanding
Securities of that series will not recognize income, gain or loss for Federal
income tax purposes as a result of such Legal Defeasance and will be
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subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Legal Defeasance has not
occurred;
(c) In the case of an election under Section 8.3, the Issuers shall
have delivered to the Trustee for the applicable series an Opinion of Counsel in
the United States to the effect that the Holders of the outstanding Securities
of that series will not recognize income, gain or loss for Federal income tax
purposes as a result of such Covenant Defeasance and will be subject to Federal
income tax in the same amount, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(d) No Default or Event of Default with respect to the Securities of
that series shall have occurred and be continuing on the date of such deposit
or, in so far as Section 7.1(5) or 7.1(6) is concerned, at any time in the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(e) Such Legal Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which either of the Issuers or any of
their Subsidiaries is a party or by which either of the Issuers or any of their
Subsidiaries is bound;
(f) In the case of an election under either Section 8.2 or 8.3, the
Issuers shall have delivered to the Trustee for the applicable series an
Officers' Certificate stating that the deposit made by the Issuers pursuant to
its election under Section 8.2 or 8.3 was not made by the Issuers with the
intent of preferring the Holders of such series over other creditors of the
Issuers or with the intent of defeating, hindering, delaying or defrauding
creditors of the Issuers or others;
(g) The Issuers shall have delivered to the Trustee for the
applicable series an Officers' Certificate and an Opinion of Counsel in the
United States, each stating that the conditions precedent provided for, in the
case of the Officers' Certificate, in subsections (a) through (f) of this
Section 8.4 and, in the case of the Opinion of Counsel, subsections (a) (with
respect to the validity and perfection of the security interest), (b), (c) and
(e) of this Section 8.4 have been complied with as contemplated by this Section
8.4.
Section 8.5 Deposited Cash and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
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Subject to Section 8.6, all cash and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee for the applicable
series (or other qualifying trustee, collectively for purposes of this Section
8.5, the "Trustee") pursuant to Section 8.4 in respect of the Defeased
Securities shall be held in trust and applied by such Trustee, in accordance
with the provisions of such Defeased Securities and this Indenture, to the
payment, either directly or through any Paying Agent as the Trustee may
determine, to the Holders of such Defeased Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Issuers shall pay and indemnify such Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 8.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of Defeased Securities.
Section 8.6 Repayment to Issuers.
Anything in this Article VIII to the contrary notwithstanding, the Trustee
shall deliver or pay to the Issuers from time to time upon the request of the
Issuers any funds or U.S. Government Obligations held by it as provided in
Section 8.4 which, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereto delivered to the
Trustee (which may be the opinion delivered under Section 8.4(a)), are in excess
of the amount thereof which would then be required to be deposited to effect an
equivalent Legal Defeasance or Covenant Defeasance.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Issuers, in trust for the payment of the principal of, premium, if any, or
interest on any Defeased Security and remaining unclaimed for two years after
such principal, and premium, if any, or interest has become due and payable
shall be paid to the Issuers on their request; and the Holder of such Defeased
Security shall thereafter look only to the Issuers for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Issuers cause to be published once, in the New York Times and The Wall Street
Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30
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days from the date of such notification or publication, any unclaimed balance of
such money then remaining will be repaid to the Issuers.
Section 8.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any funds or U.S.
Government Obligations in accordance with Section 8.2 or 8.3, as the case may
be, by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Issuers' obligations under this Indenture and the Defeased Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 8.2
or 8.3 until such time as the Trustee or Paying Agent is permitted to apply such
money in accordance with Section 8.2 and 8.3, as the case may be; provided,
however, that, if the Issuers make any payment of principal of, premium, if any,
or interest on any such Security following the reinstatement of its obligations,
the Issuers shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the Cash held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holder, the Issuers or any Guarantor, if any,
when authorized by Board Resolutions, and the Trustee, at any time and from time
to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency, or
to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided such action pursuant to this clause (1) shall
not adversely affect the interests of any Holder in any respect;
(2) to add to the covenants of the Issuers for the
benefit of the Holders of all the Securities or any series thereof, or to
surrender any right or power herein conferred upon the Issuers or to make
any other change that does not adversely affect the rights of any Holder;
provided that the Issuers have delivered to the Trustee an Opinion of
Counsel stating that such change does not adversely affect the rights of
any Holder;
(3) to provide for additional Guarantors of all the
Securities or any series thereof;
(4) to add to, change or eliminate any of the provisions
of this Indenture (which addition, change or elimination may apply to one
or more series of Securities), provided that any such addition, change or
elimination other than those permitted by all or any of clauses (1), (2),
(3), (5) and (6) of this Section 9.1 shall neither (a) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (b) modify the
rights of the Holder of any such Security with respect to such provision;
(5) to evidence the succession of another person to
either of the Issuers, and the assumption by any such successor of the
obligations of such Issuer, herein and in the Securities in accordance
with Article V; or
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(6) to comply with the TIA.
Section 9.2 Amendments, Supplemental Indentures and Waivers with Consent
of Holders.
Subject to Section 6.8 and the last sentence of this paragraph, with the
consent of the Holders of any series of not less than a majority in aggregate
principal amount of then outstanding Securities of such series, by written act
of said Holders delivered to the Issuers and the Trustee for such series, the
Issuers and any Guarantor, if any, when authorized by Board Resolutions, and
such Trustee may amend or supplement this Indenture with respect to such series
or the Securities of such series or enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture with respect
of such series or the Securities of such series or of modifying in any manner
the rights of the Holders of such series under this Indenture with respect of
such series or the Securities of such series. Subject to Section 6.8 and the
last sentence of this paragraph, the Holder or Holders of a majority in
principal amount of then outstanding Securities of such series may waive
compliance by the Issuers or any Guarantor, if any, with any provision of this
Indenture with respect to that series or the Securities of such series.
Notwithstanding the foregoing provisions of this Section 9.2, without the
consent of each Holder affected thereby, no such amendment, supplemental
indenture or waiver shall:
(1) reduce the percentage of principal amount of
Securities whose Holders must consent to an amendment, supplement or
waiver of any provision of this Indenture or the Securities;
(2) reduce the rate or extend the time for payment of
interest on any Security;
(3) reduce the principal amount of any Security, or
reduce the Change of Control Purchase Price or the Asset Sale Offer Price;
(4) change the Stated Maturity of any Security;
(5) alter the redemption provisions of Article III in a
manner adverse to any Holder;
(6) make any changes in the provisions concerning
waivers of Defaults or Events of Default by
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Holders of the Securities (except to in crease any percentage of
Securities required to consent to a waiver or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby) or
the rights of Holders to recover the principal or premium of, interest on,
or redemption payment with respect to, any Security;
(7) make any changes in Section 6.8, 6.12 or this third
sentence of this Section 9.2;
(8) make the principal of, or the interest on, any
Security payable with anything or at anywhere other than as provided for
in this Indenture and the Securities of the series concerned as in effect
on the date hereof; or
(9) make the Securities or Guarantees, if any, further
subordinated in right of payment to any extent or under any circumstances
to any other indebtedness.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Issuers shall mail to the Holders affected thereby a notice
briefly describing the amendment, supplement or waiver. Any failure of the
Issuers to mail such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
After an amendment, supplement or waiver under this Section 9.2 or 9.4
becomes effective, it shall bind each Holder of the series of Securities
affected by such amendment, supplement or waiver.
In connection with any amendment, supplement or waiver under this Article
IX, the Issuers may, but shall not be obligated to, offer to any Holder who
consents to such amendment, supplement or waiver, or to all Holders,
consideration for such Holder's consent to such amendment, supplement or waiver.
Section 9.3 Compliance with TIA.
Every amendment, waiver or supplement of this Indenture or the Securities
shall comply with the TIA as then in effect.
Section 9.4 Revocation and Effect of Consents.
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Until an amendment, waiver or supplement becomes effective, a consent to
it by a Holder is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of his Security by written notice to the Issuers
or the person designated by the Issuers as the person to whom consents should be
sent if such revocation is received by the Issuers or such person before the
date on which the Trustee receives an Officers' Certificate certifying that the
Holders of the requisite principal amount of Securities have consented (and not
theretofore revoked such consent) to the amendment, supplement or waiver.
The Issuers may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver, which record date shall be the date so fixed by the
Issuers notwithstanding the provisions of the TIA. If a record date is fixed,
then notwithstanding the last sentence of the immediately preceding paragraph,
those persons who were Holders at such record date, and only those persons (or
their duly designated proxies), shall be entitled to revoke any consent
previously given, whether or not such persons continue to be Holders after such
record date. No such consent shall be valid or effective for more than 90 days
after such record date.
After an amendment, supplement or waiver becomes effective, it shall bind
every Securityholder of the affected series, unless it makes a change described
in any of clauses (1) through (9) of Section 9.2, in which case, the amendment,
supplement or waiver shall bind only each Holder of a Security who has consented
to it and every subsequent Holder of a Security or portion of a Security that
evidences the same debt of the same series as the consenting Holder's Security;
provided that any such waiver shall not impair or affect the right of any Holder
to receive payment of principal and premium of and interest on a Security, on or
after the respective dates set for such amounts to become due and payable
expressed in such Security, or to bring suit for the enforcement of any such
payment on or after such respective dates.
Section 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the Trustee or
require the Holder to put an appropriate notation on the Security. The Trustee
may place an
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appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Issuers or the Trustee so determines, the
Issuers in exchange for the Security shall issue, the Guarantors, if any, shall
endorse and the Trustee shall authenticate a new Security that reflects the
changed terms. Any failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment, supplement or waiver.
Section 9.6 Trustee to Sign Amendments, etc.
The Trustee shall execute any amendment, supplement or waiver authorized
pursuant to this Article IX provided that the Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver which affects the
Trustee's own rights, duties or immunities under this Indenture. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Officers' Certificate and Opinion of Counsel stating that the execution of any
amendment, supplement or waiver authorized pursuant to this Article IX is
authorized or permitted by this Indenture.
ARTICLE X
RIGHT TO REQUIRE REPURCHASE
Any or all of the provisions of this Article X 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. In addition, it shall be
established prior to the issuance of any series of Securities, pursuant to
Section 2.3, whether any right or rights other than or in addition to those
specified below shall be applicable to such series. Provisions of this Article X
not designated, pursuant to Section 2.3, 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 X, unless the context otherwise requires, all
references to Securities (and all references to other defined terms with respect
to such series of Securities) refer only to a series of Securities for which
such provision has been designated, pursuant to Section 2.3, as being
applicable.
Section 10.1 Repurchase of Securities at Option of the Holder upon Change
of Control.
(a) In the event that a Change of Control Triggering Event occurs,
each Holder of Securities shall have the right, at such Holder's option, subject
to the terms and conditions of this
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Indenture, to require the Issuers to repurchase all or any part of such Holder's
Securities (provided, that the principal amount of such Securities at maturity
must be $1,000 or an integral multiple thereof) on the date that is no later
than 45 Business Days after the occurrence of such Change of Control Triggering
Event (the "Change of Control Purchase Date"), at a cash price equal to 101% of
the principal amount thereof (the "Change of Control Purchase Price"), plus
accrued but unpaid interest, if any, to the Change of Control Purchase Date.
(b) In the event that, pursuant to this Section 10.1, the Issuers
shall be required to commence an offer to purchase Securities (a "Change of
Control Offer"), the Issuers shall follow the procedures set forth in this
Section 10.1 as follows:
(1) the Change of Control Offer shall commence within 20
Business Days following the Change of Control Triggering Event;
(2) the Change of Control Offer shall remain open for at
least 20 Business Days;
(3) within 5 Business Days following the expiration of
a Change of Control Offer, the Issuers shall purchase all of the tendered
Securities at the Change of Control Purchase Price, plus accrued interest;
(4) if the Change of Control Purchase Date is on or
after an interest payment record date and on or before the related
interest payment date, any accrued interest will be paid to the person in
whose name a Security is registered at the close of business on such
record date, and no additional interest will be payable to
Securityholders who tender Securities pursuant to the Change of Control
Offer;
(5) the Issuers shall use their best efforts to provide
the Trustee with notice of the Change of Control Offer at least 5 Business
Days before the commencement of any Change of Control Offer; and
(6) on or before the commencement of any Change of
Control Offer, the Issuers or the Trustee (upon the request and at the
expense of the Issuers) shall send, by first-class mail, a notice to each
of the Securityholders, which (to the extent consistent with this
Indenture) shall govern the terms of the Change of Control Offer and shall
state:
(i) that the Change of Control Offer is
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being made pursuant to this Section 10.1 and that all Securities, or
portions thereof, tendered will be accepted for payment;
(ii) the Change of Control Purchase Price (including
the amount of accrued but unpaid interest) and the Change of Control
Purchase Date;
(iii) that any Security, or portion thereof, not
tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Issuers default in depositing
cash with the Paying Agent in accordance with the last paragraph of
this subsection (b), or such payment is prevented for any reason,
any Security, or portion thereof, accepted for payment pursuant to
the Change of Control Offer shall cease to accrue interest after the
Change of Control Purchase Date;
(v) that Holders electing to have a Security, or portion
thereof, purchased pursuant to a Change of Control Offer will be
required to surrender the Security, with the form entitled "Option
of Holder to Elect Purchase" on the re verse of the Security
completed, to the Paying Agent (which may not for purposes of this
Section 10.1, notwithstanding anything in this Indenture to the
contrary, be the Issuers or any Affiliate of either of the Issuers)
at the address specified in the notice prior to the expiration of
the Change of Control Offer;
(vi) that Holders will be entitled to withdraw their
election, in whole or in part, if the Paying Agent receives, prior
to the expiration of the Change of Control Offer, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Securities the Holder is withdrawing and a
statement containing a facsimile signature and stating that such
Holder is withdrawing his election to have such principal amount of
Securities purchased; and
(vii) a brief description of the events resulting in
such Change of Control Triggering Event.
Any such Change of Control Offer shall comply with any and all applicable
provisions of Federal and state laws, including those regulating tender offers,
if applicable, and any provisions of this Indenture which conflict with such
laws shall be deemed
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to be superseded by the provisions of such laws.
On or before the Change of Control Purchase Date, the Issuers shall (i)
accept for payment Securities or portions thereof properly tendered pursuant to
the Change of Control Offer prior to the expiration of the Change of Control
Offer, (ii) deposit with the Paying Agent cash sufficient to pay the Change of
Control Purchase Price (including accrued and unpaid interest) of all Securities
so tendered and (iii) deliver to the Trustee Securities so accepted together
with an Officers' Certificate listing the Securities or portions thereof being
purchased by the Issuers. The Paying Agent shall promptly pay to the Holders of
Securities so accepted payment in an amount equal to the Change of Control
Purchase Price (plus accrued and unpaid interest), and the Trustee shall
promptly authenticate and mail or deliver to such Holders a new Security equal
in principal amount to any unpurchased portion of the Security surrendered.
ARTICLE XI
GUARANTEES
Any or all of the provisions of this Article XI 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. In addition, it shall be
established prior to the issuance of any series of Securities, pursuant to
Section 2.3, whether any guarantee or guarantees other than or in addition to
those specified below shall be applicable to such series. Provisions of this
Article XI not designated, pursuant to Section 2.3, 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 XI, unless the context otherwise
requires, all references to Securities (and all references to other defined
terms with respect to such series of Securities) refer only to a series of
Securities for which such provision has been designated, pursuant to Section
2.3, as being applicable.
Section 11.1 Guarantees.
(a) In consideration of good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, each of the 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 enforce ability of this Indenture, the
Securities or the obligations of the Issuers under this Indenture or the
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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 this Indenture or the Securities
will be promptly paid in full or performed, all in accordance with the terms of
this 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 Guarantor shall be obligated to pay the
same before failure so to pay becomes an Event of Default.
(b) Each 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 this 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 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 this Indenture.
(c) If any Holder or the Trustee is required by any court or
otherwise to return to either the Issuers or any Guarantor, or any Custodian,
Trustee, or similar official acting in relation to either the Issuers or such
Guarantor, any amount paid by either the Issuers or such Guarantor to the
Trustee or such Holder, this Guarantee, to the extent theretofore discharged,
shall be reinstated in full force and effect. Each 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 Guarantor further agrees that, as between
such 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 for the purposes of this Guarantee, notwithstanding
any stay, injunction or other prohibition preventing such
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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, those obligations (whether or not due and payable) will forthwith
become due and payable by each of the Guarantors for the purpose of this
Guarantee.
(d) Each 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 Guarantor set forth in Section 11.1(a) 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 Guarantor hereby irrevocably agree that the obligations of such
Guarantor under its guarantee set forth in Section 11.1(a) shall be limited to
the maximum amount as will, after giving effect to all other contingent and
fixed liabilities of such 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 11.1(d), result in the obligations of such
Guarantor under such guarantee not constituting such a fraudulent transfer or
conveyance.
Each Guarantor that makes any payment or distribution under Section
11.1(a) 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 Guarantor means the
percentage of the net assets of all Guarantors held by such Guarantor,
determined in accordance with GAAP.
Section 11.2 Execution and Delivery of Guarantee.
To evidence its Guarantee set forth in Section 11.1, each Guarantor agrees
that a notation of such Guarantee substantially in the form established
pursuant to Section 2.3 shall be endorsed on each Security authenticated and
delivered by the Trustee and that this Indenture shall be executed on behalf of
such Guarantor by two Officers or an Officer and an Assistant Secretary by
manual or facsimile signature.
Each Guarantor agrees that its Guarantee set forth in Section 11.1 shall
remain in full force and effect and apply to all the applicable Securities
notwithstanding any failure to endorse on each Security a notation of such
Guarantee.
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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 Guarantor.
Section 11.3 Certain Bankruptcy Events.
Each Guarantor hereby covenants and agrees that in the event of the
insolvency, bankruptcy, dissolution, liquidation or reorganization of either of
the Issuers, such 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.
Section 11.4 Limitation on Merger, Consolidation, etc. of Guarantors.
No Guarantor shall consolidate or merge with or into (whether or not such
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 Guarantor) assumes all the
obligations of such 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
Guarantor's obligations under such 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 other wise) of a 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), such 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
Guarantor
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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 11.5 Future Guarantors.
Upon the acquisition by the Issuers or any Guarantor of the Capital Stock
of any person, if, as a result of such acquisition, such person becomes a
Subsidiary, such Subsidiary shall fully and unconditionally guarantee on a
senior subordinated basis the obligations of the Issuers with respect to payment
and performance of the Securities and the other obligations of the Issuers under
this Indenture to the same extent that such obligations are guaranteed by the
other Guarantors pursuant to Section 11.1; and, within 60 days of the date of
such occurrence, such Subsidiary shall execute and deliver to the Trustee a
supple mental indenture making such Subsidiary a party to this Indenture.
ARTICLE XII
SUBORDINATION
Unless otherwise designated pursuant to Section 2.3, the provisions of
this Article XII shall be applicable to the Securities of each series
(Securities of such series being referred to as "Subordinated Debt Securities").
Provisions of this Article XII designated, pursuant to Section 2.3, as being
inapplicable 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 XII,
unless the context otherwise requires, all references to Securities (and all
references to other defined terms with respect to such series of Securities)
refer only to a series of Securities for which such provision has not been
designated, pursuant to Section 2.3, as being inapplicable.
Section 12.1 Securities Subordinated to Senior Debt.
The Issuers, the Guarantors, if any, and each Holder, by its acceptance of
Subordinated Debt Securities, agree that (a) the payment of the principal of and
interest on the Subordinated Debt Securities and (b) any other payment in
respect of the Subordinated Debt Securities, including on account of the
acquisition or redemption of the Subordinated Debt Securities by the Issuers or
the Guarantors (including, without limitation, pursuant to Section 4.13 or
10.1), if any, is subordinated, to the extent and in the manner provided in this
Article XII, to the prior payment in full in Cash or Cash Equivalents of all
Senior
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Debt of the Issuers and the Guarantors, if any, and that these subordination
provisions are for the benefit of the holders of Senior Debt.
This Article XII shall constitute a continuing offer to all persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Debt, and such provisions are made for the benefit of the holders of Senior
Debt, and such holders are made obligees hereunder and any one or more of them
may enforce such provisions.
Section 12.2 No Payment on Securities in Certain Circumstances.
(a) No payment of any kind or character from any source may be made
by or on behalf of the Issuers or a Guarantor, if any, as applicable, on account
of the principal of, premium, if any, or interest or Additional Amounts on the
Subordinated Debt Securities (including any repurchases of Subordinated Debt
Securities and rescission payments), or on account of the redemption provisions
of the Subordinated Debt Securities, for cash or property (other than from the
trust described in Article VIII), (i) upon the maturity of any Senior Debt of
the Issuers or such Guarantor by lapse of time, acceleration (unless waived) or
otherwise, unless and until all principal of, premium, if any, the interest on
and any fee or other amount due in respect of such Senior Debt are first paid in
full in cash or Cash Equivalents or otherwise to the extent holders accept
satisfaction of amounts due by settlement in other than cash or Cash
Equivalents, or (ii) in the event of default in the payment of any principal of,
premium, if any, or interest on or any fee or other amount due in respect of
Senior Debt of the Issuers or such Guarantor, if any, when it becomes due and
payable, whether at maturity or at a date fixed for prepayment or by declaration
or otherwise (a "Payment Default"), unless and until such Payment Default has
been cured or waived or otherwise has ceased to exist.
(b) Upon (i) the happening of an event of default (other than a
Payment Default) that permits the holders of Senior Debt to declare such Senior
Debt to be due and payable and (ii) written notice of such event of default
given to the Trustee by the Representative under the Credit Agreement or the
holders of an aggregate of at least $25 million principal amount outstanding of
any other Senior Debt or their representative (a "Payment Blockage Notice"),
then, unless and until such event of default has been cured or waived or
otherwise has ceased to exist, no payment (by set-off or otherwise) may be made
by or on behalf of the Issuers or a Guarantor, if any, which is an obligor under
such Senior Debt on account of the principal of, premium, if any
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or interest or Additional Amounts on the Subordinated Debt Securities, including
any repurchases of Subordinated Debt Securities and rescission payments, or on
account of the redemption provisions of the Subordinated Debt Securities, other
than payments from the trust described in Article VIII; provided, however, that
so long as the Credit Agreement is in effect, a Payment Blockage Notice may only
be given by the Representative under the Credit Agreement unless otherwise
agreed in writing by the requisite lenders under the Credit Agreement.
Notwithstanding the immediately preceding sentence, unless the Senior Debt in
respect of which such event of default exists has been declared due and payable
in its entirety within 179 days after the Payment Blockage Notice is delivered
as set forth above (the "Payment Blockage Period") (and such declaration has not
been rescinded or waived), at the end of the Payment Blockage Period, the
Issuers and the Guarantors, if any, shall be required to pay, unless a Payment
Default has then occurred and is continuing, all sums not paid to the Holders of
the Subordinated Debt Securities during the Payment Blockage Period due to the
foregoing prohibitions and to resume all other payments as and when due the
Subordinated Debt Securities. Any number of Payment Blockage Notices may be
given; provided, however, that (i) not more than one Payment Blockage Notice
shall be given within a period of any 360 consecutive days, and (ii) no default
that existed upon the date of such Payment Blockage Notice or the commencement
of such Payment Blockage Period (whether or not such event of default is on the
same issue of Senior Debt) shall be made the basis for the commencement of any
other Payment Blockage Period, unless such event of default shall have been
cured or waived for a period of not less than 90 days.
(c) In furtherance of the provisions of Section 12.1, in the event
that, notwithstanding the foregoing provisions of this Section 12.2 or the
provisions of Section 12.3, any payment or distribution of assets (other than
from the trust described in Article VIII and, in the case of Section 12.3,
Junior Securities) shall be received by the Trustee or the Holders at a time
when such payment or distribution is prohibited by such provisions, such payment
or distribution shall be held in trust for the benefit of the holders of such
Senior Debt, and shall be paid or delivered by the Trustee or such Holders, as
the case may be, to the holders of such Senior Debt remaining unpaid or
unprovided for or to their representative or representatives, or to the trustee
or trustees under any indenture pursuant to which any instruments evidencing any
of such Senior Debt may have been issued, ratably according to the aggregate
principal amounts remaining unpaid on account of such Senior Debt held or
represented by each, for application to the payment of all such Senior Debt
remaining unpaid, to the extent necessary to pay all such Senior Debt in full in
cash or Cash Equivalents or otherwise
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to the extent holders accept satisfaction of amounts due by settlement in other
than cash or Cash Equivalents after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
Section 12.3 Securities Subordinated to Prior Payment of All Senior Debt
on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of either Issuer or a Guarantor, if any,
upon any dissolution, winding up, total or partial liquidation or reorganization
of either Issuer or a Guarantor, if any, whether voluntary or involuntary, in
bankruptcy, insolvency, receivership or a similar proceeding or upon assignment
for the benefit of creditors or any marshalling of assets or liabilities:
(a) the holders of all Senior Debt of such Issuer or such Guarantor,
as applicable, will first be entitled to receive payment on account of all
principal of, premium, if any, interest on and fees and other amounts payable in
respect of such Senior Debt in full in cash or Cash Equivalents or otherwise to
the extent holders accept satisfaction of amounts due by settlement in other
than cash or Cash Equivalents before the Holders of Subordinated Debt Securities
are entitled to receive any payment on account of principal of, premium, if any,
and interest or Additional Amounts on the Subordinated Debt Securities,
including any repurchase of Subordinated Debt Securities and rescission
payments, or on account of the redemption provisions of the Subordinated Debt
Securities, other than Junior Securities or from the trust described in Article
VIII; and
(b) any payment or distribution of assets of such Issuer or such
Guarantor, if any, of any kind or character from any source, whether in cash,
property or securities (other than Junior Securities or from the trust described
in Article VIII) to which the Holders of Subordinated Debt Securities or the
Trustee on behalf of such Holders would be entitled (by set-off or other wise),
except for the provisions of Article VIII, will be paid by the liquidating
trustee or agent or other person making such a payment or distribution directly
to the holders of such Senior Debt or their representative to the extent
necessary to make payment in full in cash or Cash Equivalents on all such Senior
Debt remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
Section 12.4 Securityholders to Be Subrogated to Rights of Holders of
Senior Debt.
Subject to the payment in full in Cash or Cash Equivalents
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of all Senior Debt of the Issuers and the Guarantors as provided herein, the
Holders of Subordinated Debt Securities shall be subrogated to the rights of the
holders of such Senior Debt to receive payments or distributions of assets of
the Issuers and the Guarantors, if any, applicable to the Senior Debt until all
amounts owing on the Subordinated Debt Securities shall be paid in full, and for
the purpose of such subrogation no such payments or distributions to the holders
of such Senior Debt by or on behalf of the Issuers or the Guarantors, if any, or
by or on behalf of the Holders by virtue of this Article XII, which otherwise
would have been made to the Holders of Subordinated Debt Securities shall, as
between the Issuers and Guarantors, if any, and such Holders, be deemed to be
payment by the Issuers or Guarantors, if any, or on account of such Senior Debt,
it being understood that the provisions of this Article XII are and are intended
solely for the purpose of defining the relative rights of the Holders of
Subordinated Debt Securities, on the one hand, and the holders of such Senior
Debt, on the other hand.
If any payment or distribution to which the Holders would otherwise have
been entitled but for the provisions of this Article XII shall have been
applied, pursuant to the provisions of this Article XII, to the payment of
amounts payable under Senior Debt of the Issuers or the Guarantors, then the
Holders of Subordinated Debt Securities shall be entitled to receive from the
holders of such Senior Debt any payments or distributions received by such
holders of Senior Debt in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Debt in full in Cash or Cash
Equivalents.
Section 12.5 Obligations of the Issuers Unconditional.
Nothing contained in this Article XII or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as between the Issuers and
Guarantors, if any, and any Holders, the obligation of each such person, which
is absolute and unconditional, to pay to the Holders the principal of, premium,
if any, and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the Holders and creditors of the Issuers and the Guarantors,
if any, other than the holders of the Senior Debt, nor shall anything herein or
therein prevent the Trustee or any Holder from exercising all remedies otherwise
permitted by applicable law upon default under this Indenture, subject to the
rights, if any, under this Article XII and under the proviso to Section 6.2, of
the holders of Senior Debt in respect of cash, property or securities of the
Issuers or the Guarantors, if any, received upon the exercise of any such remedy
or otherwise. Notwithstanding anything to the contrary in this Article XII or
elsewhere in this Indenture or in
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the Securities, upon any distribution of assets of the Issuers referred to in
this Article XII, the Trustee, subject to the provisions of Sections 6.1 and
6.2, and the Holders shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a certificate of the
liquidating Trustee or agent or other person making any distribution to the
Trustee or to the Holders for the purpose of ascertaining the persons entitled
to participate in such distribution, the holders of the Senior Debt and other
Indebtedness of the Issuers and the Guarantors, if any, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XII so long as such court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article XII. Nothing in this Section 12.5
shall apply to the claims of, or payments to, the Trustee under or pursuant to
Section 6.7.
Section 12.6 Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment to or by
the Trustee unless and until a Trust Officer of the Trustee or any Paying Agent
shall have received, no later than two Business Days prior to such payment,
written notice thereof from the Issuers or from one or more holders of Senior
Debt or from any representative therefor and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Sections 7.1 and 7.2,
shall be entitled in all respects conclusively to assume that no such fact
exists. The Issuers shall give prompt written notice to the Trustee of any fact
actually known to the Issuers which would prohibit the making of any payment to
or by the Trustee in respect of the Securities.
Section 12.7 Application by Trustee of Assets Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in accordance
with Article VIII shall be for the sole benefit of Securityholders and, to the
extent allocated for the payment of Subordinated Debt Securities, shall not be
subject to the subordination provisions of this Article XII. Otherwise, any
deposit of assets with the Trustee or any Paying Agent (whether or not in trust)
for the payment of principal of or interest on any Subordinated Debt Securities
shall be subject to the provisions of Sections 12.1, 12.2, 12.3 and 12.4;
provided that, if prior to two Business Days preceding the date on which by the
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terms of this Indenture any such assets may become distributable for any purpose
(including without limitation, the payment of either principal of or interest on
any Security) the Trustee or such Paying Agent shall not have received with
respect to such assets the written notice provided for in Section 12.6, then the
Trustee or such Paying Agent shall have full power and authority to receive such
assets and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such date.
Section 12.8 Subordination Rights Not Impaired by Acts or Omissions of the
Issuers, Guarantors or Holders of Senior Debt, etc.; Modifications.
No right of any present or future holders of any Senior Debt to enforce
subordination provisions contained in this Article XII shall at any time in any
way be prejudiced or impaired by any act or failure to act on the part of the
Issuers, the Guarantors, if any, or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Issuers or the Guarantors, if
any, with the terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The holders of
Senior Debt may ex tend, renew, modify or amend the terms of the Senior Debt or
any security therefor and release, sell or exchange such security and otherwise
deal freely with the Issuers and the Guarantors, if any, all without affecting
the liabilities and obligations of the parties to this Indenture or the Holders.
The subordination provisions are solely for the benefit of the holders from time
to time of Senior Debt and may not be rescinded, cancelled, amended or modified
in any way other than any amendment or modification that would not adversely
affect the rights of any holder of Senior Debt or any amendment or modification
that is consented to by each holder of Senior Debt that would be affected
thereby. The subordination provisions of this Article XII shall continue to be
effective or be reinstated, as the case may be, if at any time payment and
performance of the Senior Debt is, pursuant to applicable law, avoided,
recovered or rescinded or must otherwise be restored or returned by any holder
of Senior Debt, whether as a "voidable preference," "fraudulent conveyance,"
"fraudulent transfer," or otherwise, all as though such payment or performance
had not been made.
Section 12.9 Securityholders Authorize Trustee to Effectuate Subordination
of Securities.
Each Holder of the Subordinated Debt Securities by his acceptance thereof
authorizes and expressly directs the Trustee on his behalf to take such action
as may be necessary or
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appropriate to effectuate the subordination provisions contained in this Article
XII and to protect the rights of the Holders pursuant to this Indenture, and
appoints the Trustee his attorney-in-fact for such purpose, including, in the
event of any dissolution, winding up, liquidation or reorganization of the
Issuers or any Guarantor (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Issuers and the Guarantors), if
any, the immediate filing of a claim for the unpaid balance of his Subordinated
Debt Securities in the form required in said proceedings and cause said claim
to be approved. If the Trustee does not file a proper claim or proof of debt in
the form required in such proceeding prior to 30 days before the expiration of
the time to file such claim or claims, then the holders of the Senior Debt or
their representative are or is hereby authorized to have the right to file and
are or is hereby authorized to file an appropriate claim for and on behalf of
the Holders of said Subordinated Debt Securities. Nothing herein contained shall
be deemed to authorize the Trustee or the holders of Senior Debt or their
representative to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Subordinated Debt Securities or the rights of any
Holder thereof, or to authorize the Trustee or the holders of Senior Debt or
their representative to vote in respect of the claim of any Securityholder in
any such proceeding.
Section 12.10 Right of Trustee to Hold Senior Debt.
The Trustee shall be entitled to all of the rights set forth in this
Article XII in respect of any Senior Debt at any time held by it to the same
extent as any other holder of Senior Debt, and nothing in this Indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
Section 12.11 Article XII Not to Prevent Events of Default.
The failure to make a payment on account of principal of, premium, if any,
or interest on the Subordinated Debt Securities by reason of any provision of
this Article XII shall not be construed as preventing the occurrence of a
Default or an Event of Default under Section 7.1 or in any way limit the rights
of the Trustee or any Holder to pursue any other rights or remedies with respect
to the Subordinated Debt Securities.
Section 12.12 No Fiduciary Duty of Trustee to Holders of Senior Debt.
Notwithstanding anything to the contrary herein, the Trustee
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shall not be deemed to owe any fiduciary duty to any present or future holders
of Senior Debt, and shall not be liable to any such holders (other than for its
wilful misconduct or negligence) if it shall in good faith mistakenly pay over
or distribute to the Holders of Subordinated Debt Securities or the Issuers or
Guarantors, if any, or any other person, cash, property or securities to which
any holders of Senior Debt shall be entitled by virtue of this Article XII or
otherwise. The Trustee undertakes to perform or to observe only such of the
covenants and obligations as are specifically set forth in this Article XII, and
no implied covenants or obligations with respect to such holders of Senior Debt
shall be implied in this Indenture against the Trustee. Nothing in this Section
12.12 shall affect the obligation of any other such person to hold such payment
for the benefit of, and to pay such payment over to, the holders of Senior Debt
or their representative. In the event of any conflict between the fiduciary duty
of the Trustee to the Holders of Subordinated Debt Securities and its duty to
the holders of Senior Debt, the Trustee is expressly authorized to resolve such
conflict in favor of the Holders.
ARTICLE XIII
MISCELLANEOUS
Section 13.1 TIA Controls.
If any provision of this Indenture limits, qualifies, or conflicts with
the duties imposed by operation of the TIA, the imposed duties, upon
qualification of this Indenture under the TIA, shall control.
Section 13.2 Notices.
Any notices or other communications to the Issuers, the Guarantors or the
Trustee required or permitted hereunder shall be in writing, and shall be
sufficiently given if made by hand delivery, by telecopier or registered or
certified mail, postage prepaid, return receipt requested, addressed as follows:
if to the Issuers or any Guarantor, if any,:
Sun International Hotels Limited
Coral Towers
Paradise Island, Bahamas
Attention: General Counsel
Telephone: (242) 363-3000
Telecopy: (242) 363-3703
if to the Trustee:
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[ ]
The Issuers, the Guarantors, if any, or the Trustee by notice to each
other party may designate additional or different addresses as shall be
furnished in writing by such party. Any notice or communication to the Issuers,
the Guarantors or the Trustee shall be deemed to have been given or made as of
the date so delivered, if personally delivered; when receipt is acknowledged, if
telecopied; and 5 Business Days after mailing if sent by registered or certified
mail, postage prepaid (except that a notice of change of address shall not be
deemed to have been given until actually received by the addressee).
Any notice or communication mailed to a Securityholder shall be mailed to
him by first class mail or other equivalent means at his address as it appears
on the registration books of the Registrar and shall be sufficiently given to
him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 13.3 Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Guarantors, the Trustee, the Registrar and any
other person shall have the protection of TIA ss. 312(c).
Section 13.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take any
action under this Indenture, the Issuers shall furnish to the Trustee:
(1) an Officers' Certificate (in form and substance
reasonably satisfactory to the Trustee) stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (in form and substance
reasonably satisfactory to the Trustee) stating
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that, in the opinion of such counsel, all such conditions precedent have
been complied with.
Section 13.5 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
each such person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
Section 13.6 Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules for its
functions.
Section 13.7 Legal Holidays.
A "Legal Holiday" used with respect to a particular place of payment is a
Saturday, a Sunday or a day on which banking institutions in New York, New York
are not required to be open. If a payment date is a Legal Holiday in New York,
New York, payment may be made at such place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 13.8 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
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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 INDENTURE AND THE SECURITIES,
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 13.9 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of any of the Issuers, the Guarantors or any of their
Subsidiaries. Any such indenture, loan or debt agreement may not be used to
interpret this Indenture.
Section 13.10 No Recourse Against Others.
A director, officer, employee, stockholder or incorporator, as such, of
the Issuers or the Guarantors shall not have any liability for any obligations
of the Issuers or the Guarantors under the Securities or this Indenture. Each
Securityholder by accepting a Security waives and releases all such liability.
Such waiver and release are part of the consideration for the issuance of the
Securities.
Section 13.11 Successors.
All agreements of the Issuers and the Guarantors in this Indenture and the
Securities shall bind their successors. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 13.12 Duplicate Originals.
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All parties may sign any number of copies or counter parts of this
Indenture. Each signed copy or counterpart shall be an original, but all of them
together shall represent the same agreement.
Section 13.13 Severability.
In case any one or more of the provisions in this Indenture or in the
Securities shall be held invalid, illegal or unenforceable, in any respect for
any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions shall not in any way be
affected or impaired thereby, it being intended that all of the provisions
hereof shall be enforceable to the full extent permitted by law.
Section 13.14 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and headings of the Articles
and the Sections of this 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.
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SIGNATURE
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
SUN INTERNATIONAL HOTELS LIMITED
By:
Name:
Title:
SUN INTERNATIONAL NORTH AMERICA, INC.
By:
Name:
Title:
[ ] as Trustee
By:
Name:
Title:
GUARANTORS:
SUN INTERNATIONAL BAHAMAS LIMITED
By:
Name:
Title:
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PARADISE ISLAND LIMITED
By:
Name:
Title:
ISLAND HOTEL COMPANY LIMITED
By:
Name:
Title:
PARADISE BEACH INN LIMITED
By:
Name:
Title:
PARADISE ENTERPRISES LIMITED
By:
Name:
Title:
PARADISE ACQUISITIONS LIMITED
By:
Name:
Title:
SUN INTERNATIONAL MANAGEMENT LIMITED
By:
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Name:
Title:
SUN COVE, LTD.
By:
Name:
Title:
RESORTS INTERNATIONAL HOTEL, INC.
By:
Name:
Title:
GGRI, INC.
By:
Name:
Title: