EXHIBIT 10.5
FIRST AMENDMENT TO MEZZANINE LOAN AGREEMENT
This First Amendment to Mezzanine Loan Agreement (this AGREEMENT) is
entered into on January 18, 2002, by and between Opryland Mezzanine Trust
2001-1, a Delaware business trust (the MEZZANINE LENDER), and OHN Holdings, LLC,
a Delaware limited liability company (the MEZZANINE BORROWER).
RECITALS
A. The Mezzanine Borrower and Xxxxxxx Xxxxx Mortgage Capital Inc., as
predecessor to the Mezzanine Lender, entered into a Mezzanine Loan Agreement
(the ORIGINAL AGREEMENT) dated as of March 27, 2001.
B. The Mezzanine Borrower and the Mezzanine Lender have agreed to amend
the Original Agreement as set forth in this Agreement.
AGREEMENTS
Now, therefore, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, hereby agree as
follows:
SECTION 1. DEFINITIONS USED IN THIS AGREEMENT
(a) In this Agreement, the term MEZZANINE LOAN AGREEMENT means the
Original Agreement as amended by this Agreement.
(b) All capitalized terms used in this Agreement which are not
otherwise defined in this Agreement shall have the meanings assigned to them in
the Mezzanine Loan Agreement, including those definitions added to the Mezzanine
Loan Agreement by this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES
In order to induce the Mezzanine Lender to enter into this Agreement,
the Mezzanine Borrower makes the following representations and warranties:
(a) Original Agreement Representations. The representations and
warranties contained in the Original Agreement remain true and correct in all
material respects, except for representations and warranties which by their
nature referred to facts at the time the Original Agreement was executed and
which would normally be expected to change over time.
(b) Due Authorization, Execution, Etc. This Agreement has been duly
authorized, executed and delivered by the Mezzanine Borrower and constitutes the
valid and binding obligation of the Mezzanine Borrower, enforceable against the
Mezzanine Borrower in accordance with its terms.
(c) No Defaults. [Except as set forth in Schedule 2(c) to this
Agreement, there] [There] presently exists no Event of Default under the
Mezzanine Loan Agreement and no event,
event, fact or circumstance, which, with notice or the passage of time, or both,
will become an Event of Default under the Mezzanine Loan Agreement.
SECTION 3. AMENDMENT TO MEZZANINE LOAN AGREEMENT
Section 7.1(xviii) of the Original Agreement is amended to read as
follows:
(xviii) if, as of the end of the last month in any
calendar quarter set forth in the table below, the DSCR or the Debt
Yield is less than the value specified for that calendar quarter, in
each case based on a trailing twelve (12) month period.
CALENDAR QUARTER Q4-01 Q1-02 Q2-02 Q3-02 Q4-02 Q1-03 Q2-03 Q3-03 Thereafter
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DSCR 1.00 1.00 1.00 1.00 1.05 1.05 1.05 1.05 1.05
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DEBT YIELD 11.00% 10.25% 10.50% 11.00% 11.50% 11.75% 12.00% 12.25% 12.50%
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SECTION 4. REAFFIRMATION, CONFIRMATIONS AND MISCELLANEOUS
(a) Reaffirmation by the Mezzanine Borrower. The Mezzanine Borrower
reaffirms all of its obligations under the Mezzanine Loan Agreement and the
other Mezzanine Loan Documents, and confirm that they remain in full force and
effect and otherwise unmodified.
(b) Fees and Expenses. Upon execution of this Agreement, the Mezzanine
Borrower shall pay all out-of-pocket expenses incurred by the Mezzanine Lender
in connection with this Agreement and the transactions contemplated by this
Agreement, including the expenses and reasonable fees of counsel to Archon
Group, L.P., which is the Administrator of the Mezzanine Lender, and the
expenses and reasonable fees of counsel to the participants in the Mezzanine
Lender (i.e., Xxxxxxx Xxxxx Mortgage Capital Inc., Fleet National Bank, Archon
Capital, L.P. and Delaware Securities Holdings, Inc.).
(c) Defenses. The Mezzanine Borrower confirms that it has no defenses
against the Mezzanine Lender or any of its obligations under the Mezzanine Loan
Agreement or the other Mezzanine Loan Documents. The Mezzanine Borrower confirms
that it has no claims against the Mezzanine Lender for any reason whatsoever
arising out of the Mezzanine Loan, or the relationship between the parties from
the making of the Mezzanine Loan and subsequent transactions relating to the
Mezzanine Loan.
(d) Approval by Guarantor. The approval of the Guarantor is set forth
below.
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In witness whereof, the parties have executed this Agreement on the
date first written above.
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MEZZANINE BORROWER
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OHN HOLDINGS, LLC
BY: _______________________________
NAME:
TITLE:
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MEZZANINE LENDER
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ARCHON GROUP, L.P., AS ADMINISTRATOR OF
OPRYLAND MEZZANINE TRUST 2001-1
BY: _______________________________
NAME:
TITLE:
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ACKNOWLEDGMENT AND CONFIRMATION BY GUARANTOR
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The Guarantor reaffirms its obligations under its existing Guaranty of
Recourse Obligations, and confirm that the Mezzanine Borrower's execution and
delivery of this Agreement in no way impairs or limits its obligations under its
existing Guaranty of Recourse Obligations.
XXXXXXX ENTERTAINMENT COMPANY
BY: _______________________________
NAME:
TITLE:
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