EXHIBIT 10.18
AMENDMENT NO. 1 TO THE
CREDIT AGREEMENT
DATED AS OF AUGUST 19, 2004
AMENDMENT NO. 1 TO THE CREDIT AGREEMENT (this "AMENDMENT") among
Boca Resorts Hotel Corporation, a Delaware corporation (the "BORROWER"), the
banks, financial institutions and other institutional lenders party to the
Credit Agreement referred to below (collectively, the "LENDERS") and Deutsche
Bank Trust Company Americas, as administrative agent (the "ADMINISTRATIVE
AGENT") for the Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, Boca Resorts, Inc., the Subsidiary Guarantors (as
defined therein), the Administrative Agent and Deutsche Bank Trust Company
Americas, as the Initial Lender, have entered into a Credit Agreement dated as
of July 22, 2004 (such Credit Agreement, as amended, supplemented or otherwise
modified through the date hereof, the "CREDIT AGREEMENT"). Capitalized terms not
otherwise defined in this Amendment have the same meanings as specified in the
Credit Agreement.
(2) The Borrower, the Administrative Agent and the Lenders have
agreed to amend the Credit Agreement in certain respects as set forth below.
SECTION 1. Amendments to Credit Agreement. The Credit Agreement is,
effective as of the date hereof and subject to the satisfaction of the
conditions precedent set forth in Section 3 hereof, hereby amended as follows:
(a) The cover page is amended by inserting the following immediately
after the words "THE INITIAL LENDERS NAMED HEREIN,":
"BANK OF AMERICA, N.A. and THE BANK OF NOVA SCOTIA, NEW YORK AGENCY,
as CO-SYNDICATION AGENTS,
COMERICA BANK, KEYBANK NATIONAL ASSOCIATION and WACHOVIA BANK, N.A.,
as CO-DOCUMENTATION AGENTS,
THE ROYAL BANK OF SCOTLAND PLC,
as SENIOR MANAGING AGENT,"
(b) The preamble is amended by inserting the following immediately
after the words "the Lenders (as defined herein),":
"BANK OF AMERICA, N.A. and THE BANK OF NOVA SCOTIA, NEW YORK AGENCY,
as co-syndication agents, COMERICA BANK, KEYBANK NATIONAL
ASSOCIATION and WACHOVIA BANK, N.A., as co-documentation agents, THE
ROYAL BANK OF SCOTLAND PLC, as senior managing agent,"
(c) Section 1.01 is amended as follows:
(i) By deleting the references to "Section 2.02(e)" in the
definitions of "Defaulted Advance" and "Defaulted Amount" and
inserting references to "Section 2.02(d)" in replacement therefor.
(ii) By inserting the words "or an Approved Fund" immediately
after the words "an Affiliate of a Lender" in clause (iii)(A) of the
definition of "Eligible Assignee."
(d) Section 2.08 is amended by deleting subsection (a) thereof in
its entirety and inserting the following new subsection (a) in replacement
therefor:
"(a) Unused Commitment Fee. The Borrower shall pay to the
Administrative Agent for the account of the Lenders an unused
commitment fee, from the date hereof in the case of each Initial
Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each
other Lender, in each case until the Termination Date, payable in
arrears monthly on the last day of each month, commencing July 31,
2004, and on the Termination Date in respect of the Revolving Credit
Facility, at the rate of 0.40% per annum, if the average daily
Unused Revolving Credit Commitment for such period exceeds 50% of
the Revolving Credit Facility at the date of determination, and at a
rate of 0.30% per annum, in all other cases, in each case on the
average daily Unused Revolving Credit Commitment of each Appropriate
Lender during such month; provided, however, that any unused
commitment fee accrued with respect to any of the Commitments of a
Defaulting Lender during the period prior to the time such Lender
became a Defaulting Lender and unpaid at such time shall not be
payable by the Borrower so long as such Lender shall be a Defaulting
Lender except to the extent that such unused commitment fee shall
otherwise have been due and payable by the Borrower prior to such
time; and provided further that no unused commitment fee shall
accrue on any of the Commitments of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender."
(e) Section 7.02 is amended by adding the parenthetical "(except by
the Administrative Agent itself)" immediately after the words "due execution"
where they appear in subsection (e) thereof.
(f) Section 9.01 is amended by deleting clause (ii) of subsection
(c) thereof in its entirety and inserting the following in replacement therefor:
"(ii) reduce the principal of, or stated rate of interest on,
the Notes held by such Lender or reduce the principal, or stated
rate of interest thereon, of any other amounts or fees stated to be
payable hereunder to such Lender; or"
(g) Section 9.04 is amended by inserting "trustees," immediately
after the comma following the word "employees" where it appears in clause (i) of
subsection (b) thereof.
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(h) Section 9.07 is amended by deleting clause (iv) of subsection
(a) thereof in its entirety and inserting the following in replacement therefor:
"(iv) no such assignments shall be permitted without the
consent of the Administrative Agent, which consent shall not be
unreasonably withheld, until the Administrative Agent shall have
notified the Lender Parties that syndication of the Commitments
hereunder has been completed, and, except in the case of an
assignment to an Affiliate of a Lender or an Approved Fund, the
consent of the Borrower (unless an Event of Default shall have
occurred and be continuing),which consent shall not be unreasonably
withheld."
(i) Section 9.07 is further amended by inserting the following
proviso at the end of subsection (f) thereof:
"provided, that in the case of contemporaneous assignments
under Section 9.07(a) and this Section 9.07(f), only one such fee
shall be payable."
(j) The Credit Agreement is further amended by deleting Schedule I
to the Credit Agreement and replacing it with a new Schedule I in the form
attached as Schedule I hereto, effective as of the date hereof.
SECTION 2. Additional Lenders. (a) Effective as of the date hereof,
each of Bank of America, N.A., The Bank of Nova Scotia, New York Agency,
Comerica Bank, KeyBank National Association, Wachovia Bank, N.A. and The Royal
Bank of Scotland plc (each, an "ADDITIONAL LENDER") shall each be joined as a
Lender Party to the Credit Agreement and shall be deemed to have made a
Revolving Credit Commitment and a Term Commitment, as applicable, in the amounts
set forth opposite their respective names on Schedule I hereto, and each of the
Administrative Agent, the Borrower, Boca Resorts, Inc. and the Subsidiary
Guarantors hereby consents to such joinder.
(b) On the date hereof, each Additional Lender, without executing an
Assignment and Acceptance, shall be deemed to have automatically purchased and
assumed, and the Initial Lender shall be deemed to have automatically sold and
assigned (without recourse except as to the representations and warranties made
by it herein), an interest in the Initial Lender's rights and obligations under
the Credit Agreement as of the date hereof equal to the percentage interest set
forth opposite such Additional Lender's name on Schedule I hereto of all
outstanding rights and obligations under the Credit Agreement Facility or
Facilities specified on Schedule I hereto. After giving effect to such
assignments, each Revolving Credit Lender shall have its respective Pro Rata
Share determined with reference to the Revolving Credit Commitment amounts of
the Revolving Credit Lenders set forth on Schedule I hereto. Each such purchase
hereunder shall be at par for a purchase price equal to the principal amount of
the Obligations purchased and without recourse, representation or warranty,
except as set forth herein. The Administrative Agent shall calculate the net
amount to be paid or received by each Lender in connection with the assignments
effected hereunder on the date hereof. Each Additional Lender required to make a
payment shall make the net amount of its required payment available to the
Administrative Agent, in same day funds, at the office of the Administrative
Agent not later than 12:00 Noon (New York time) on the date hereof. The
Administrative Agent shall distribute on the date hereof the proceeds of such
amounts to the Initial Lender.
(c) The Initial Lender (i) represents and warrants that its name set
forth on Schedule I hereto is its legal name, that it is the legal and
beneficial owner of the interest or interests being assigned by it hereunder and
that such interest or interests are free and clear of any adverse claim; (ii)
makes no representation or warranty and assumes no responsibility with respect
to any statements,
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warranties or representations made in or in connection with any Loan Document or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iv) attaches the Revolving
Credit Note held by the Initial Lender and requests that the Administrative
Agent exchange such Revolving Credit Note for new Revolving Credit Notes payable
to the order of (A) each Additional Lender in an amount equal to the Revolving
Credit Commitment assumed by such Additional Lender pursuant hereto and (B) the
Initial Lender in an amount equal to the Revolving Credit Commitment retained by
the Initial Lender under the Credit Agreement, respectively, as specified on
Schedule I hereto; and (v) attaches the Term Note held by the Initial Lender and
requests that the Administrative Agent exchange such Term Note for new Term
Notes payable to the order of (A) each Additional Lender in an amount equal to
the Term Commitment assumed by such Additional Lender pursuant hereto and (B)
the Initial Lender in an amount equal to the Term Commitment retained by the
Initial Lender under the Credit Agreement, respectively, as specified on
Schedule I hereto.
(d) Each Additional Lender (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to become
a Lender Party; (ii) agrees that it will, independently and without reliance
upon the Administrative Agent, the Initial Lender or any other Lender Party and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) represents and warrants that its name set
forth on Schedule I hereto is its legal name; (iv) confirms that it is an
Eligible Assignee; (v) appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Loan Documents as are delegated to the Administrative Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (vi) agrees that it will perform in accordance with their
terms all of the obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender Party; and (vii) attaches any U.S.
Internal Revenue Service forms required under Section 2.12 of the Credit
Agreement.
(e) As of the Amendment No. 1 Effective Date, (i) each Additional
Lender shall be a party to the Credit Agreement and, to the extent provided in
this Amendment, have the rights and obligations of a Lender Party thereunder and
(ii) the Initial Lender shall, to the extent provided in this Amendment,
relinquish its rights and be released from its obligations under the Credit
Agreement (other than its rights and obligations under the Loan Documents that
are specified under the terms of such Loan Documents to survive the payment in
full of the Obligations of the Loan Parties under the Loan Documents to the
extent any claim thereunder relates to an event arising prior to the Amendment
No. 1 Effective Date).
(f) From and after the Amendment No. 1 Effective Date, the
Administrative Agent shall make all payments under the Credit Agreement and the
Notes in respect of the interests assigned hereby (including, without
limitation, all payments of principal, interest and commitment fees with respect
thereto) to each Additional Lender, as appropriate. Each Additional Lender and
the Initial Lender shall make all appropriate adjustments in payments under the
Credit Agreement and the Notes for periods prior to the Amendment No. 1
Effective Date directly between themselves.
SECTION 3. Conditions of Effectiveness. This Amendment shall become
effective when, and only when, and as of the date (the "AMENDMENT NO. 1
EFFECTIVE DATE") on which, (a) the
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Administrative Agent shall have received (x) counterparts of this Amendment
executed by the Borrower and the Initial Lender, and (y) counterparts of the
Consent appended hereto (the "CONSENT"), executed by each Guarantor, each such
document (unless otherwise specified) dated the date of receipt thereof by the
Administrative Agent (unless otherwise specified), and (b) the Administrative
Agent shall have received all fees due and payable in connection with this
Amendment No. 1 and payment of all accrued fees and expenses of the
Administrative Agent (including the reasonable and accrued fees of counsel to
the Administrative Agent invoiced on or prior to the date hereof).
SECTION 4. Reference to and Effect on the Loan Documents. (a) On and
after the effectiveness of this Amendment, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the Notes and each of
the other Loan Documents to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, as specifically amended by this Amendment, are and shall continue to
be in full force and effect and are hereby in all respects ratified and
confirmed. Without limiting the generality of the foregoing, the Collateral
Documents and all of the Collateral described therein do and shall continue to
secure the payment of all Obligations of the Loan Parties under the Loan
Documents, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power or remedy of any Lender or the Administrative Agent under any of
the Loan Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
SECTION 5. Costs, Expenses. The Borrower agrees to pay on demand all
reasonable costs and expenses of the Administrative Agent in connection with the
preparation, execution, delivery and administration, modification and amendment
of this Amendment and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent) in accordance with the terms of Section
9.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This Amendment may be executed
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute but one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
BOCA RESORTS HOTEL CORPORATION
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Administrative Agent and as a Lender
By __________________________________________
Name:
Title:
ADDITIONAL LENDERS
BANK OF AMERICA, N.A., as Co-Syndication
Agent and as a Lender
By __________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, NEW YORK AGENCY, as
Co-Syndication Agent and as a Lender
By __________________________________________
Name:
Title:
COMERICA BANK, as Co-Documentation Agent and
as a Lender
By __________________________________________
Name:
Title:
KEYBANK NATIONAL ASSOCIATON, as
Co-Documentation Agent and as a Lender
By __________________________________________
Name:
Title:
WACHOVIA BANK, N.A., as Co-Documentation
Agent and as a Lender
By __________________________________________
Name:
Title:
THE ROYAL BANK OF SCOTLAND PLC, as Senior
Managing Agent and as a Lender
By __________________________________________
Name:
Title:
CONSENT
Dated as of August 19, 2004
Each of the undersigned, as Guarantors under the Credit Agreement
dated as of July 22, 2004 (the "GUARANTY") in favor of the Administrative Agent
and the Lenders party to the Credit Agreement referred to in the foregoing
Amendment, hereby consents to such Amendment and hereby confirms and agrees that
(a) notwithstanding the effectiveness of such Amendment, the Guaranty is, and
shall continue to be, in full force and effect and is hereby ratified and
confirmed in all respects, except that, on and after the effectiveness of such
Amendment, each reference in the Guaranty to the "Credit Agreement",
"thereunder", "thereof" or words of like import shall mean and be a reference to
the Credit Agreement, as amended by such Amendment, and (b) each of the
Collateral Documents to which such Guarantor is a party and all of the
Collateral described therein do, and shall continue to, secure the payment of
all of the obligations to be secured thereunder.
BOCA RESORTS, INC.
By __________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Senior Vice President
RAHN PIER, INC.
By __________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇ BAHIA, INC.
By __________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
P66, LLC
By: Rahn Pier, Inc., its sole member
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇ BAHIA, LLC
By: ▇▇▇▇ Bahia, Inc., its sole member
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇., LTD.
By: P66, LLC, its sole general partner
By: Rahn Pier, Inc., its sole member
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇ BAHIA MAR, LTD.
By: ▇▇▇▇ Bahia, LLC, its sole general partner
By: ▇▇▇▇ Bahia, Inc., its sole member
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
FPH/RHI MERGER CORP., INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PANTHERS EDGEWATER RESORT, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PELICAN HILL, LLC
By: FPH/RHI Merger Corp., Inc., its sole
member
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PER, L.L.C.
By: Panthers Edgewater Resort, Inc., its sole
member
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
LEHILL PARTNERS, L.P.
By: Pelican Hill, LLC, its sole general
partner
By: FPH/RHI Merger Corp., Inc., its sole
member
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PANTHERS RPN LIMITED
By: Panthers Edgewater Resort, Inc., its sole
general partner
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PANTHERS BOCA GENERAL PARTNER, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PANTHERS BOCA LIMITED PARTNER, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PANTHERS BRGP CORPORATION
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PANTHERS BRLP CORPORATION
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
PANTHERS BRHC LIMITED
By: Panthers BRGP Corporation, a general
partner
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BOCA RATON RESORT AND CLUB, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BOCA RATON CATERERS, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BOCA BY DESIGN, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
FLORIDA HOSPITALITY SERVICES, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ CENTER, INC.
By __________________________________________
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President