**EXHIBIT 2.2(h)**

 

EXECUTION COPY

 

**KERZNERINTERNATIONAL LIMITED**

**KERZNERINTERNATIONAL NORTH AMERICA, INC.**

 

As Issuers

 

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8.875% SeniorSubordinated Notes due 2011

 

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FIFTH SUPPLEMENTALINDENTURE

 

Dated as ofSeptember 10, 2004

 

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Supplementing the Indenturedated as of August 14, 2001, among Kerzner International Limited and KerznerInternational North America, Inc., as Issuers, the Guarantors named therein andThe Bank of New York Trust Company, N.A., as Trustee

 

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**THE BANKOF NEW YORK TRUST COMPANY, N.A.**

 

As Trustee

 

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SUPPLEMENTAL INDENTUREdated as of September 10, 2004, among Kerzner International Limited(formerly known as Sun International Hotels Limited), an international businesscompany organized under the laws of the Commonwealth of The Bahamas (the “Company”or “Kerzner International”), Kerzner International North America, Inc.(formerly known as Sun International North America, Inc.), a Delawarecorporation and a wholly owned subsidiary of the Company (together with theCompany, the “Issuers”); Kerzner International Development Services (UK) Ltd.,Kerzner UK Hotel Properties Ltd., Kerzner International Palm Island Limited,Kerzner International UAE Limited, Kerzner International Employment ServicesLtd., Kerzner International Development FZ-LLC (Dubai Free Zone), KerznerInternational Management FZ-LLC (Dubai Free Zone), Kerzner InvestmentsAcquisitions Limited, One&Only Management Limited and One&Only ResortsLimited (collectively, the “Additional Guarantors”); and The Bank of New YorkTrust Company, N.A. (formerly known as The Bank of New York) (the “Trustee”),as Trustee under the Indenture referred to herein.

 

WHEREAS the Issuers, the Guarantors and the Trusteeheretofore executed and delivered an Indenture dated as of August 14, 2001, in respectof the Issuers’ 8.875% Senior Subordinated Notes due 2011, as supplemented bythe Supplemental Indenture dated September 19, 2001, the Second SupplementalIndenture dated May 20, 2002, the Third Supplemental Indenture dated November18, 2002 and the Fourth Supplemental Indenture dated May 7, 2003 (suchindenture, as supplemented, the “Indenture”);

 

WHEREAS, the Additional Guarantors each have agreed tobecome a “Guarantor” under the Indenture, in each case in order tounconditionally guarantee all of the Issuers’ obligations under the Securitiespursuant to a Guarantee on the terms and conditions set forth herein; and

 

WHEREAS, pursuant to Section 9.1 of theIndenture, the parties hereto are authorized to execute and deliver thisSupplemental Indenture;

 

NOW, THEREFORE, the Issuers, the Additional Guarantorsand the Trustee agree as follows for the equal and ratable benefit of theHolders of the Securities:

 

**ARTICLE I**

 

**Guarantee**

 

SECTION 1.01.  a.  Guarantees.

 

(i)            Inconsideration of good and valuable consideration, the receipt and sufficiencyof which is hereby acknowledged, each of the Additional Guarantors herebyirrevocably and unconditionally guarantees, as of the respective effectivedates shown on Schedule I hereto, jointly and

 

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severally, on a senior subordinated basis (the “Guarantee”)to each Holder of a Security authenticated and delivered by the Trustee and tothe Trustee and its successors and assigns, irrespective of the validity and enforceabilityof the Indenture, the Securities or the obligations of the Issuers under theIndenture or the Securities, that: (w) the principal and premium (if any) ofand interest (and Liquidated Damages, if any) on the Securities will be paid infull when due, whether at the maturity or interest payment date, byacceleration, call for redemption, upon an Change of Control Offer, an AssetSale Offer or otherwise; (x) all other obligations of the Issuers to theHolders or the Trustee under the Indenture or the Securities will be promptlypaid in full or performed, all in accordance with the terms of this Indentureand the Securities; and (y) in case of any extension of time of payment orrenewal of any Securities or any of such other obligations, they will be paidin full when due or performed in accordance with the terms of the extension orrenewal, whether at maturity, by acceleration, call for redemption, upon anOffer to Purchase or otherwise.  Failingpayment when due of any amount so guaranteed for whatever reason, eachAdditional Guarantor shall be obligated to pay the same before failure so topay becomes an Event of Default.

 

(ii)           EachAdditional Guarantor hereby agrees that its obligations with regard to thisGuarantee shall be unconditional, irrespective of the validity, regularity orenforceability of the Securities or the Indenture, the absence of any action toenforce the same, the recovery of any judgment against the Issuers, any actionto enforce the same or any other circumstances that might otherwise constitutea legal or equitable discharge or defense of a guarantor.  Each Additional Guarantor hereby waivesdiligence, presentment, demand of payment, filing of claims with a court in theevent of insolvency or bankruptcy of the Issuers, any right to require aproceeding first against the Issuers or right to require the prior dispositionof the assets of the Issuers to meet its obligations, protest, notice and alldemands whatsoever and covenants that this Guarantee will not be dischargedexcept by complete performance of the obligations contained in the Securitiesand the Indenture.

 

(iii)          Ifany Holder or the Trustee is required by any court or otherwise to return toeither the Issuers or any Additional Guarantor, or any Custodian, Trustee, orsimilar official acting in relation to either the Issuers or such AdditionalGuarantor, any amount paid by either the Issuers or such Additional Guarantorto the Trustee or such Holder, this Guarantee, to the extent theretoforedischarged, shall be reinstated in full force and effect.  Each Additional Guarantor agrees that it willnot be entitled to any right of subrogation in relation to the Holders inrespect of any obligations guaranteed hereby until payment in full of allobligations guaranteed hereby.  EachAdditional Guarantor further agrees that, as between such Additional Guarantor,on the one hand, and the Holders and the Trustee, on the other hand, (i) thematurity of the obligations

 

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guaranteed hereby may be accelerated as provided inSection 6.2 of the Indenture for the purposes of this Guarantee,notwithstanding any stay, injunction or other prohibition preventing suchacceleration as to the Issuers of the obligations guaranteed hereby, and (ii) inthe event of any declaration of acceleration of those obligations as providedin Section 6.2 of the Indenture, those obligations (whether or not due andpayable) will forthwith become due and payable by each of the AdditionalGuarantors for the purpose of this Guarantee.

 

(iv)          EachAdditional Guarantor and by its acceptance of a Security issued hereunder eachHolder hereby confirms that it is the intention of all such parties that theguarantee by such Additional Guarantor set forth in Section 1.01(a)(i) not constitute a fraudulent transfer or conveyance forpurpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, theUniform Fraudulent Transfer Act or any similar United States Federal or statelaw.  To effectuate the foregoingintention, the Holders and such Additional Guarantor hereby irrevocably agreethat the obligations of such Additional Guarantor under its guarantee set forthin Section 1.01(a)(i) shall be limited to the maximum amount as will, aftergiving effect to all other contingent and fixed liabilities of such AdditionalGuarantor and after giving effect to any collections from or payments made byor on behalf of any other Guarantor in respect of the obligations of such otherGuarantor under its Guarantee or pursuant to the following paragraph of thisSection 1.01(a)(iv), result in the obligations of such Additional Guarantorunder such guarantee not constituting such a fraudulent transfer or conveyance.

 

Each Additional Guarantorthat makes any payment or distribution under Section 1.01(a)(i)shall be entitled to a contribution from each other Guarantor equal to its ProRata amount of such payment or distribution so long as the exercise of suchright does not impair the rights of the Holders under the Guarantees.  For purposes of the foregoing, the “Pro Rataamount” of any Guarantor means the percentage of the net assets of allGuarantors held by such Additional Guarantor, determined in accordance withGAAP.

 

b.             Executionand Delivery of Guarantee

 

To evidence its Guarantee set forth in Section1.01(a), each Additional Guarantor agrees that a notation of such Guaranteesubstantially in the form annexed to the Indenture as Exhibit B shall beendorsed on each Security authenticated and delivered by the Trustee and thatthis Supplemental Indenture shall be executed on behalf of such AdditionalGuarantor by one Officer by manual or facsimile signature.

 

Each Additional Guarantor agrees that its Guaranteeset forth in Section 1.01 shall remain in full force and effect and apply toall the Securities notwithstanding any failure to endorse on each Security anotation of such Guarantee.

 

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If an Officer whose signature is on a Security nolonger holds that office at the time the Trustee authenticates the Security onwhich a Guarantee is endorsed, the Guarantee shall be valid nevertheless.

 

The delivery of any Security by the Trustee, after theauthentication thereof hereunder, shall constitute due delivery of theGuarantee set forth in the Indenture on behalf of each Additional Guarantor.

 

c.             CertainBankruptcy Events.

 

Each Additional Guarantor hereby covenants and agreesthat in the event of the insolvency, bankruptcy, dissolution, liquidation orreorganization of either of the Issuers, such Additional Guarantor shall notfile (or join in any filing of), or otherwise seek to participate in the filingof, 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 benefitof any such stay of execution, whether under Section 362 or 105 of the UnitedStates Bankruptcy Code or otherwise.

 

d.             Limitationon Merger, Consolidation, etc. of Additional Guarantors.

 

No Additional Guarantor shall consolidate or mergewith or into (whether or not such Additional Guarantor is the surviving person)another person (other than either Issuer or another Guarantor) unless (i)subject to the provisions of the following paragraph, the person formed by orsurviving any such consolidation or merger (if other than such AdditionalGuarantor) assumes all the obligations of such Additional Guarantor pursuant toa supplemental indenture in form reasonably satisfactory to the Trustee,pursuant to which such person shall unconditionally guarantee, on a seniorsubordinated basis, all of such Additional Guarantor’s obligations under suchAdditional Guarantor’s Guarantee and the Indenture on the terms set forth inthe Indenture; and (ii) immediately before and immediately after giving effectto 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 ordisposition (whether by merger, stock purchase, or otherwise) of an AdditionalGuarantor in its entirety to an entity which is not a Subsidiary or thedesignation of a Subsidiary as an Unrestricted Subsidiary, which transaction isotherwise in compliance with the Indenture (including, without limitation, theprovisions of Section 4.13 of the Indenture), such Additional Guarantor will bedeemed released from its obligations under its Guarantee of the Securities; *provided, however,*that any suchtermination shall occur only to the extent that all obligations of suchAdditional Guarantor under all of its guarantees of, and under all of itspledges of assets or other security interests which secure, any Indebtedness ofeither Issuer or any of their Subsidiaries shall also terminate upon suchrelease, sale or transfer.

 

SECTION 1.02.  *Trustee’s Acceptance.  *The Trustee hereby acceptsthis Supplemental Indenture and agrees to perform the same under the terms andconditions set forth in the Indenture.

 

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**ARTICLE II**

**Miscellaneous**

 

SECTION 2.01.  *Interpretation.**  *Upon execution and delivery ofthis Supplemental Indenture, the Indenture shall be modified and amended inaccordance with this Supplemental Indenture, and all the terms and conditionsof both shall be read together as though they constitute one instrument, exceptthat, in case of conflict, the provisions of this Supplemental Indenture willcontrol.  The Indenture, as modified andamended by this Supplemental Indenture, is hereby ratified and confirmed in allrespects and shall bind every Holder of Securities.  In case of conflict between the terms andconditions contained in the Securities and those contained in the Indenture, asmodified and amended by this Supplemental Indenture, the provisions of theIndenture, as modified and amended by this Supplemental Indenture, shallcontrol.

 

SECTION 2.02.  *Conflict with Trust Indenture Act.**  *If any provision of thisSupplemental Indenture limits, qualifies or conflicts with any provision of theTIA that is required under the TIA to be part of and govern any provision ofthis Supplemental Indenture, the provision of the TIA shall control.  If any provision of this SupplementalIndenture modifies or excludes any provision of the TIA that may be so modifiedor excluded, the provision of the TIA shall be deemed to apply to the Indentureas so modified or to be excluded by this Supplemental Indenture, as the casemay be.

 

SECTION 2.03*.**  Severability.  *In case any provision in thisSupplemental Indenture shall be invalid, illegal or unenforceable, thevalidity, legality and enforceability of the remaining provisions shall not inany way be affected or impaired thereby.

 

SECTION 2.04.*  TermsDefined in the Indenture.  *All capitalized terms not otherwise defined hereinshall have the meanings ascribed to them in the Indenture.  Where the context requires, the term “Guarantors”includes both the “Additional Guarantors” (defined herein) and the “Guarantors”party to the Indenture.

 

SECTION 2.05.*  Headings.  *The Article and Section headings of this SupplementalIndenture have been inserted for convenience of reference only, are not to beconsidered a part hereof and shall in no way modify or restrict any of theterms or provisions hereof.

 

SECTION 2.06.*  Benefits of Supplemental Indenture, etc.  *Nothing in this Supplemental Indenture orthe Securities, express or implied, shall give to any Person, other than theparties hereto and thereto and their successors hereunder and thereunder andthe Holders of the Securities, any benefit of any legal or equitable right,remedy or claim under the Indenture, this Supplemental Indenture or theSecurities.

 

SECTION 2.07.*  Successors.  *All agreements of the Issuers and the AdditionalGuarantors in this Supplemental Indenture shall bind their successors.  All agreements of the Trustee in thisSupplemental Indenture shall bind its successors.

 

SECTION 2.08.*  Trustee Not Responsible for Recitals.  *The Trustee shall not be responsible inany manner whatsoever for or in respect of the validity or sufficiency of thisSupplemental Indenture or for or in respect of the correctness of the recitalsof fact contained herein, all of which recitals are made solely by the Issuers.

 

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SECTION 2.09.*  Certain Duties and Responsibilities of the Trustee.  *In entering into this SupplementalIndenture, the Trustee shall be entitled to the benefit of every provision ofthe Indenture relating to the conduct or affecting the liability or affordingprotection to the Trustee, whether or not elsewhere herein so provided.

 

SECTION 2.10.*  Governing Law.  *This Supplemental Indenture shall be governed by andconstrued in accordance with the internal laws of the State of New York, asapplied to contracts made and performed within the State of New York, withoutregard to principles of conflicts of law.* *The Issuers and each AdditionalGuarantor hereby irrevocably submit to the jurisdiction of any New York Statecourt sitting in the Borough of Manhattan in the City of New York or anyFederal court sitting in the Borough of Manhattan in the City of New York inrespect of any suit, action or proceeding arising out of or relating to thisSupplemental Indenture, and irrevocably accepts for itself and in respect ofits property, generally and unconditionally, jurisdiction of the aforesaidcourts.  The Issuers and each AdditionalGuarantor irrevocably waive, to the fullest extent they may effectively do sounder applicable law, trial by jury and any objection which they may now orhereafter have to the laying of the venue of any such suit, action or proceedingbrought in any such court and any claim that any such suit, action orproceeding brought in any such court has been brought in an inconvenientforum.  Nothing herein shall affect theright of the Trustee or any securityholder to serve process in any other mannerpermitted by law or to commence legal proceedings or otherwise proceed againstthe Issuers or any Additional Guarantor in any other jurisdiction.

 

SECTION 2.11.*  DuplicateOriginals.  *All parties may sign any number of copies or counterparts of thisSupplemental Indenture.  Each signed copyor counterpart shall be an original, but all of them together shall representthe same agreement.

 

*[Remainder of page intentionallyleft blank]*

 

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IN WITNESS WHEREOF, each party hereto has caused thisSupplemental Indenture to be signed by its officer thereunto duly authorized asof the date first written above.

 
|   | KERZNER INTERNATIONAL LIMITED,                         |
|--------|--------------------------------------------------------|
|   |                                                   |
|   | by                                                     | /s/John R. Allison |   |
|   |                                                   | Name: | John R. Allison |
|   |                                                   | Title: | Executive Vice President and Chief Financial Officer |
|   |                                                   |
|   | by                                                     | /s/William C. Murtha |   |
|   |                                                   | Name: | William C. Murtha |
|   |                                                   | Title: | Authorized Signatory |
|   |                                                   |
|   | KERZNER INTERNATIONAL NORTH AMERICA, INC.,             |
|   |                                                   |
|   | by                                                     | /s/John R. Allison |   |
|   |                                                   | Name: | John R. Allison |
|   |                                                   | Title: | Chief Executive Officer |
|   |                                                   |
|   | by                                                     | /s/William C. Murtha |   |
|   |                                                   | Name: | William C. Murtha |
|   |                                                   | Title: | Senior Vice President and Corporate Counsel |
|   |                                                   |
|   | THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee   |
|   |                                                   |
|   | by                                                     | /s/Craig A. Kaye |   |
|   |                                                   | Name: | Craig A. Kaye |
|   |                                                   | Title: | Assistant Treasurer |
|   |                                                   |
|   | ADDITIONAL GUARANTORS:                                 |
|   |                                                   |
|   | KERZNER INTERNATIONAL DEVELOPMENT SERVICES (UK)  LTD., |
|   |                                                   |
|   | by                                                     | /s/John R. Allison |   |
|   |                                                   | Name: | John R. Allison |
|   |                                                   | Title: | Authorized Signatory |
|        |                                                        |  |  |  |

 

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|   | KERZNER UK HOTEL PROPERTIES LTD.,                            |
|--------|--------------------------------------------------------------|
|   |                                                         |
|   | by                                                           | /s/John R. Allison |   |
|   |                                                         | Name: | John R. Allison |
|   |                                                         | Title: | Authorized Signatory |
|   |                                                         |
|   | KERZNER INTERNATIONAL PALM ISLAND LIMITED,                   |
|   |                                                         |
|   | by                                                           | /s/John R. Allison |   |
|   |                                                         | Name: | John R. Allison |
|   |                                                         | Title: | Authorized Signatory |
|   |                                                         |
|   | KERZNER INTERNATIONAL UAE LIMITED,                           |
|   |                                                         |
|   | by                                                           | /s/John R. Allison |   |
|   |                                                         | Name: | John R. Allison |
|   |                                                         | Title: | Authorized Signatory |
|   |                                                         |
|   | KERZNER INTERNATIONAL EMPLOYMENT SERVICES LTD.,              |
|   |                                                         |
|   | by                                                           | /s/John R. Allison |   |
|   |                                                         | Name: | John R. Allison |
|   |                                                         | Title: | Authorized Signatory |
|   |                                                         |
|   | KERZNER INTERNATIONAL DEVELOPMENT FZ-LLC (DUBAI FREE  ZONE), |
|   |                                                         |
|   | by                                                           | /s/John R. Allison |   |
|   |                                                         | Name: | John R. Allison |
|   |                                                         | Title: | Authorized Signatory |
|   |                                                         |
|   | KERZNER INTERNATIONAL MANAGEMENT FZ-LLC (DUBAI FREE  ZONE),  |
|   |                                                         |
|   | by                                                           | /s/John R. Allison |   |
|   |                                                         | Name: | John R. Allison |
|   |                                                         | Title: | Authorized Signatory |
|   |                                                         |
|   | KERZNER INVESTMENTS ACQUISITIONS LIMITED,                    |
|   |                                                         |
|   | by                                                           | /s/John R. Allison |   |
|   |                                                         | Name: | John R. Allison |
|   |                                                         | Title: | Authorized Signatory |
|        |                                                              |  |  |  |

 

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|   | ONE&ONLY MANAGEMENT LIMITED, |
|--------|----------------------------------|
|   |                             |
|   | by                               | /s/John R. Allison |   |
|   |                             | Name: | John R. Allison |
|   |                             | Title: | Authorized Signatory |
|   |                             |
|   | ONE&ONLY RESORTS LIMITED,    |
|   |                             |
|   | by                               | /s/John R. Allison |   |
|   |                             | Name: | John R. Allison |
|   |                             | Title: | Authorized Signatory |
|        |                                  |  |  |  |

 

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SCHEDULE I

 
| **Additional Guarantor**                                   | ** ** | **Effective Date of Guarantee** | ** ** |
|------------------------------------------------------------|------------|---------------------------------|------------|
| Kerzner International Development Services (UK) Ltd.       |       | May  13, 2003                   |       |
| Kerzner UK Hotel Properties Ltd.                           |       | July  30, 2003                  |       |
| Kerzner International Palm Island Limited                  |       | September  17, 2003             |       |
| Kerzner International UAE Limited                          |       | September  26, 2003             |       |
| Kerzner International Employment Services Ltd.             |       | January  30, 2004               |       |
| Kerzner International Development FZ-LLC (Dubai Free Zone) |       | February  11, 2004              |       |
| Kerzner International Management FZ-LLC (Dubai Free Zone)  |       | February  11, 2004              |       |
| Kerzner Investments Acquisitions Limited                   |       | March  2, 2004                  |       |
| One&Only Management Limited                            |       | March  31, 2004                 |       |
| One&Only Resorts Limited                               |       | March  31, 2004                 |       |

 

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