Exhibit 4.21
FIRST AMENDMENT TO FOURTH AMENDED
AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT,
dated as of May 8, 2002 (this "Amendment"), is among SUN INTERNATIONAL HOTELS
LIMITED, a corporation organized under the laws of The Commonwealth of the
Bahamas ("SIHL"), SUN INTERNATIONAL NORTH AMERICA, INC., a corporation
organized under the laws of the State of Delaware ("SINA"), SUN INTERNATIONAL
BAHAMAS LIMITED, a corporation organized under the laws of The Commonwealth of
the Bahamas ("SIBL"; SIHL, SINA and SIBL are each individually referred to as
a "Borrower" and collectively referred to as the "Borrowers"), the financial
institutions as are or may become parties hereto (collectively referred to as
the "Lenders") and CANADIAN IMPERIAL BANK OF COMMERCE, acting through one or
more of its agencies, branches or affiliates ("CIBC"), as the administrative
agent (in such capacity, the "Administrative Agent").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrowers, Lenders and the Administrative Agent are parties
to the Fourth Amended and Restated Credit Agreement, dated as of November 9,
2001, as amended by that certain letter amendment dated December 14, 2001 (as
amended, supplemented, amended and restated or otherwise modified through the
date hereof, the "Existing Credit Agreement");
WHEREAS, the Borrowers have requested that the Required Lenders amend the
Existing Credit Agreement as set forth below; and
WHEREAS, the Required Lenders have agreed, subject to the terms and
conditions hereinafter set forth, to amend the Existing Credit Agreement in
certain respects (the Existing Credit Agreement, as so amended or otherwise
modified by this Amendment, being referred to as the "Credit Agreement");
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which is hereby
acknowledged), the parties hereto agree as follows.
PART I
DEFINITIONS
SUBPART 1.1. Certain Definitions. The following terms (whether or not
underscored) when used in this Amendment shall have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Amendment" is defined in the preamble.
2
"Borrowers" is defined in the preamble.
"Credit Agreement" is defined in the third recital.
"Existing Credit Agreement" is defined in the first recital.
"First Amendment Effective Date" is defined in Subpart 3.1.
"Lenders" is defined in the first recital.
SUBPART 1.2. Other Definitions. Terms for which meanings are provided in
the Existing Credit Agreement are, unless otherwise defined herein or the
context otherwise requires, used in this Amendment with such meanings.
PART II
AMENDMENTS
Effective on (and subject to the occurrence of) the First Amendment
Effective Date, the Existing Credit Agreement is hereby amended in accordance
with this Part; except as so amended or otherwise modified by this Amendment,
the Existing Credit Agreement and the Loan Documents shall continue in full
force and effect in accordance with their terms.
SUBPART 2.1. Amendment to Section 1.1. Section 1.1 of the Existing Credit
Agreement is hereby amended by adding thereto the following new terms in
proper alphabetical order:
"9% Senior Subordinated Notes" means the 9% Senior Subordinated
Notes due 2007 executed and delivered by SIHL and SINA evidencing the
Subordinated Debt issued pursuant to the 9% Senior Subordinated Notes
Indenture.
SUBPART 2.1.1. Amendment to Section 7.2.6(b). Section 7.2.6(b) of the
Existing Credit Agreement is hereby amended and restated in its entirety as
follows:
(b) (i) make any payment or prepayment of principal of, or interest
on, any Subordinated Notes (A) on any day other than, in the case of
interest only, the stated scheduled date for such payment of interest set
forth in the applicable Subordinated Notes or in the applicable
Subordinated Note Indenture, or (B) which would violate the terms of this
Agreement or the Subordination Provisions of such Subordinated Note
Indenture; or (ii) redeem, purchase or defease any Subordinated Notes;
provided, that notwithstanding the foregoing, SIHL shall be permitted to
prepay, purchase, redeem or defease Subordinated Notes if (x) as of the
last day of the most recent Fiscal Quarter end, the Total Leverage Ratio
was less than 4.5:1, (y) both before and after giving effect thereto, no
Default has occurred and is continuing or would result therefrom and (z)
the principal amount so paid, prepaid, purchased, redeemed or defeased,
when aggregated with the amount of Restricted Payments paid under clause
(a) does not exceed the Restricted Payment Amount; provided, further that
notwithstanding the foregoing, SIHL shall be permitted to prepay,
purchase, redeem or defease any or all of its 9% Senior Subordinated
3
Notes so long as (aa) no Default has occurred and is continuing or would
result therefrom and (bb) no less than 90% of the source of the funds
used to complete such transaction is unsecured Subordinated Debt of SIHL
or its wholly-owned Subsidiaries issued pursuant to Section 7.2.2(i); and
PART III
CONDITIONS TO EFFECTIVENESS
SUBPART 3.1. Effectiveness. This Amendment and the amendments contained
herein shall become effective on the date (the "First Amendment Effective
Date") when each of the conditions set forth in this Part shall have been
fulfilled to the satisfaction of the Administrative Agent.
SUBPART 3.1.1. Execution of Counterparts. The Administrative Agent shall
have received counterparts of this Amendment, duly executed and delivered on
behalf of each Borrower and the Required Lenders.
SUBPART 3.1.2. Affirmation and Consent. The Administrative Agent shall
have received, with counterparts for each Lender, an Affirmation and Consent
to this Amendment substantially in the form attached hereto as Exhibit A, duly
executed and delivered by each of the Obligors other than the Borrowers.
SUBPART 3.1.3. Legal Details, etc. All documents executed or submitted
pursuant hereto shall be satisfactory in form and substance to the
Administrative Agent and its counsel. The Administrative Agent and its counsel
shall have received all information and such counterpart originals or such
certified or other copies or such materials as the Administrative Agent or its
counsel may reasonably request, and all legal matters incident to the
transactions contemplated by this Amendment shall be satisfactory to the
Administrative Agent and its counsel.
SUBPART 3.1.4. Required Lenders. The Agent shall have received an
executed consent to this Amendment in the form of Exhibit B from the Required
Lenders.
PART IV
MISCELLANEOUS; REPRESENTATIONS AND COVENANT
SUBPART 4.1. Continuing Effectiveness, etc. As amended hereby, the Credit
Agreement shall remain in full force and effect and is hereby ratified and
confirmed in all respects. After the First Amendment Effective Date, all
references in the Credit Agreement and each other Loan Document to the "Credit
Agreement" shall refer to the Existing Credit Agreement, after giving effect
to this Amendment.
SUBPART 4.2. Counterparts. This Amendment may be executed in any number
of counterparts and by the different parties on separate counterparts, and
each such counterpart shall be deemed to be an original but all such
counterparts shall together constitute one and the same Amendment.
4
SUBPART 4.3. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
SUBPART 4.4. Successors and Assigns. This Amendment shall be binding upon
the Borrowers, the Lenders and the Agents and their respective successors and
assigns, and shall inure to their successors and assigns.
SUBPART 4.5. Representations and Warranties. In order to induce the
Required Lenders to execute and deliver this Amendment, the Borrowers
represent and warrant to the Agents, the Lenders and the Issuers that, after
giving effect to the terms of this Amendment, the following statements are
true and correct: (a) the representations and warranties set forth in Article
VI of the Existing Credit Agreement and in the other Loan Documents are true
and correct on the First Amendment Effective Date (unless stated to relate
solely to an earlier date, in which case such representations and warranties
were true and correct in all material respects as of such earlier date); and
(b) no Default has occurred and be continuing, and neither SIHL nor any
Subsidiary is in material violation of any law or governmental regulation or
court order or decree.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed and delivered by their respective authorized officers as of the
day and year first above written.
SUN INTERNATIONAL BAHAMAS LIMITED
By:/s/ Charles D. Adamo
------------------------------
Title: Executive Vice President
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (242) 363-3703
Attention: John R. Allison and
Charles D. Adamo
SUN INTERNATIONAL HOTELS LIMITED
By:/s/ Charles D. Adamo
----------------------------
Title: Executive Vice President
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (242) 363-3703
Attention: John R. Allison and
Charles D. Adamo
SUN INTERNATIONAL NORTH AMERICA, INC.
By: /s/ Charles D. Adamo
----------------------
Title: Executive Vice President
Address: Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Facsimile No.: (242) 363-3703
Attention: John R. Allison and
Charles D. Adamo
CANADIAN IMPERIAL BANK OF
COMMERCE, as Administrative Agent
By:/s/ Paul J. Chakmak
--------------------
Title: Managing Director,
CIBC World Markets Corp., AS AGENT
Address: 10880 Wilshire Boulevard
Suite 1700
Los Angeles, California 90024
Facsimile No.:(310) 446-3610
Attention: Leonardo R. Fernandez, Jr.
EXHIBIT A to First Amendment to
Fourth Amended and Restated Credit Agreement
May 8, 2002
To the Parties Listed on the
Signature Pages Hereof
c/o Sun International Bahamas Limited
Executive Offices
Coral Towers
Paradise Island,
The Bahamas
Attention: Chief Financial Officer
Re: Sun International Bahamas Limited, Sun International North
America, Inc. and Sun International Bahamas Limited
Gentlemen:
Please refer to (1) the Fourth Amended and Restated Credit Agreement,
dated as of November 9, 2001, as amended by that certain First Amendment to
Fourth Amended and Restated Credit Agreement dated as of May 8, 2002 (as so
amended, the "Credit Agreement"), by and among SUN INTERNATIONAL HOTELS
LIMITED, a corporation organized under the laws of The Commonwealth of the
Bahamas ("SIHL"), SUN INTERNATIONAL NORTH AMERICA, INC., a corporation
organized under the laws of the State of Delaware ("SINA"), SUN INTERNATIONAL
BAHAMAS LIMITED, a corporation organized under the laws of The Commonwealth of
the Bahamas ("SIBL"; SIHL, SINA and SIBL are each individually referred to as
a "Borrower" and collectively referred to as the "Borrowers"), the financial
institutions as are or may become parties hereto (collectively referred to as
the "Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, acting through one or more
of its agencies, branches or affiliates ("CIBC"), as the administrative agent
(in such capacity, the "Administrative Agent") and (2) the Amended and
Restated Subsidiary Guaranty, dated as of November 9, 2001 (the "Guaranty"),
made by each Guarantor (as such term is defined in the Credit Agreement) a
signatory hereto in favor of the Agent for the Beneficiaries. Pursuant to an
amendment dated of even date herewith, certain terms of the Credit Agreement
were amended. We hereby request that you (i) acknowledge and reaffirm all of
your obligations and undertakings under the Guaranty and (ii) acknowledge and
agree that the Guaranty is and shall remain in full force and effect in
accordance with the terms thereof.
Please indicate your agreement to the foregoing by signing in the space
provided below, and returning the executed copy to the undersigned.
CANADIAN IMPERIAL BANK OF
COMMERCE, as Administrative Agent
By:/s/ Paul J. Chakmak
---------------------
Title: Managing Director,
CIBC World Markets Corp.,
AS AGENT
Address: 10880 Wilshire Boulevard
Suite 1700
Los Angeles, California 90024
Facsimile No.: (310) 446-3610
Attention: Leonardo R. Fernandez, Jr.
Acknowledged and Agreed:
BIRBO NV
SUN HOTELS INTERNATIONAL MANAGEMENT NV
SUN INTERNATIONAL FINANCE LIMITED
SUN HOTELS INTERNATIONAL (BERMUDA), LIMITED
ABERDEEN MANAGEMENT LIMITED
SUN INTERNATIONAL MANAGEMENT LIMITED
PARADISE ISLAND LIMITED
SUN INTERNATIONAL TIMESHARE LIMITED
PARADISE SECURITY SERVICES LIMITED
PURPOSEFUL BV
SUN INTERNATIONAL MARKETING (UK) LTD.
SUN COVE, LTD.
SUN INTERNATIONAL DEVELOPMENT (TIMESHARE) LIMITED
ISLAND HOTEL COMPANY LIMITED
BAHAMAS E-TRADING LIMITED
SUN INTERNATIONAL NETWORK DATA LIMITED
SUNONLINE (IOM) LIMITED
SUN INTERNATIONAL NETWORK SERVICES LIMITED
SUN COVE CALIFORNIA, INC.
SUN INTERNATIONAL NEVADA, INC.
PARADISE BEACH INN LIMITED
PARADISE ENTERPRISES LIMITED
PARADISE ACQUISITIONS LIMITED
SUN INTERNATIONAL DEVELOPMENT LIMITED
PARADISE ISLAND FUTURES LIMITED
SUN INTERNATIONAL RESORTS, INC.
PIV, INC.
ISS, INC.
SUN INTERNATIONAL MARKETING, INC.
SUN INTERNATIONAL NEW YORK, INC.
SUN INTERNATIONAL DEVELOPMENT GROUP, INC.
SUN VACANCES SA
SUN COVE NEW YORK, INC.
By: /s/ Charles D. Adamo
-------------------------
Name: Charles D. Adamo
Title: Authorized Signator
EXHIBIT B to First Amendment to Fourth
Amended and Restated Credit Agreement
CONSENT OF LENDER
-----------------
Reference is hereby made to the First Amendment to Fourth Amended and
Restated Credit Agreement dated as of May 8, 2002 among SUN INTERNATIONAL
HOTELS LIMITED, a corporation organized under the laws of The Commonwealth of
the Bahamas ("SIHL"), SUN INTERNATIONAL NORTH AMERICA, INC., a corporation
organized under the laws of the State of Delaware ("SINA"), SUN INTERNATIONAL
BAHAMAS LIMITED, a corporation organized under the laws of The Commonwealth of
the Bahamas ("SIBL"; SIHL, SINA and SIBL are each individually referred to as
a "Borrower" and collectively referred to as the "Borrowers"), the financial
institutions as are or may become parties hereto (collectively referred to as
the "Lenders"), CANADIAN IMPERIAL BANK OF COMMERCE, acting through one or more
of its agencies, branches or affiliates ("CIBC"), as the administrative agent
(in such capacity, the "Administrative Agent").
The undersigned Lender hereby consents to the execution and delivery of
the First Amendment to the Fourth Amended and Restated Credit Agreement by the
Administrative Agent on its behalf, substantially in the form of the most
recent draft thereof presented to the undersigned Lender.
Dated: May 8, 2002
By: /s/ [OTHER LENDERS]
-------------------------------
[Name of Institution]
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------