Exhibit 10.6
FIRST AMENDMENT TO MEZZANINE LOAN AND
SECURITY AGREEMENT AND OTHER LOAN DOCUMENTS
This FIRST AMENDMENT TO MEZZANINE LOAN AND SECURITY AGREEMENT AND OTHER
LOAN DOCUMENTS (this "Agreement"), is made as of September 30th , 2002 (the
"Effective Date"), by and among GERMAN AMERICAN CAPITAL CORPORATION, a Maryland
corporation ("Senior Tier Mezzanine Lender"), and BRE/PARK PLACE MEZZANINE
L.L.C., a Delaware limited liability company (the "Senior Tier Mezzanine
Borrower), with reference to the following:
RECITALS:
A. WHEREAS, On September 18, 2002, Senior Tier Mezzanine Lender made a
mezzanine loan to Senior Tier Mezzanine Borrower in the principal amount of
$41,000,000 (the "Existing Mezzanine Loan"), pursuant to that certain Mezzanine
Loan and Security Agreement, dated as of the date thereof (as the same may be
amended, restated and supplemented from time to time, the "Existing Mezzanine
Loan Agreement"), between Senior Tier Mezzanine Borrower and Senior Tier
Mezzanine Lender, which Existing Mezzanine Loan is evidenced by those two
certain Mezzanine Notes, dated as of the date thereof, ((i) one in the principal
amount of $26,500,000 (as the same may be amended and supplemented from time to
time, the "Senior Tier Mezzanine Note"), and (ii) one in the principal amount of
$14,500,000 (as the same may be amended, restated and supplemented from time to
time, the "Junior Tier Mezzanine Note")), made by Senior Tier Mezzanine Borrower
in favor of Senior Tier Mezzanine Lender and secured by (i) that certain Pledge
and Security Agreement, dated as of the date thereof, between Senior Tier
Mezzanine Borrower and Senior Tier Mezzanine Lender, and (ii) the other Loan
Documents (Mezzanine) (as defined in the Existing Mezzanine Loan Agreement (the
"Existing Loan Documents").
B. WHEREAS, The Existing Mezzanine Loan has a current outstanding
principal balance of $41,000,000.
C. WHEREAS, Senior Tier Mezzanine Borrower, BRE/PARK PLACE JUNIOR
MEZZANINE L.L.C. ("Junior Tier Mezzanine Borrower" and, together with Senior
Tier Mezzanine Borrower, the "Borrowers"), a Delaware limited liability company,
Senior Tier Mezzanine Lender, German American Capital Corporation ("Junior Tier
Mezzanine Lender" and, together with Senior Tier Mezzanine Lender, "Lenders"),
and Guarantor have agreed to modify the Existing Mezzanine Loan upon certain
terms and conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Senior Tier Mezzanine Lender and
Senior Tier Mezzanine Borrower hereby agree as follows:
1. Incorporation. The recital paragraphs set forth above are hereby
incorporated herein by this reference as if fully set forth herein.
2. Defined Terms. Capitalized terms not otherwise defined herein shall
have the same meanings as are ascribed to such terms in the Existing Mezzanine
Loan Agreement or any of the other Existing Loan Documents.
3. No Offset. Senior Tier Mezzanine Borrower represents and warrants
that (a) all of its representations and warranties in the Existing Loan
Documents, as same are amended hereby, are true and complete on the date hereof
with the same force and effect as if made on such date, except that Exhibit J of
the Existing Mezzanine Loan Agreement is hereby deleted in its entirety and
Exhibit J B First Amended attached hereto is hereby substituted therefor; (b)
the Existing Loan Documents are in full force and effect; (c) Senior Tier
Mezzanine Lender has fully performed all obligations to Senior Tier Mezzanine
Borrower under the Existing Loan Documents which it was obligated to perform on
or prior to the date hereof; and (d) Senior Tier Mezzanine Borrower has no
defenses, claims, causes of action, counterclaims or offsets against Senior Tier
Mezzanine Lender, or any of its officers, employees, agents, directors or
attorneys of any kind or nature whatsoever.
4. Conditions Precedent. Senior Tier Mezzanine Borrower and, as
applicable, Junior Tier Mezzanine Borrower, represent and warrant that each of
the following conditions have been satisfied on or before the Effective Date:
(a) Borrowers have executed and delivered to Senior Tier
Mezzanine Lender a fully executed original counterpart of the
Assumption and Release Agreement (hereinafter defined) in form and
substance acceptable to Senior Tier Mezzanine Lender which is effective
on the Effective Date simultaneous to the effectiveness of the
amendments contemplated by this Agreement.
(b) Senior Tier Mezzanine Lender has received from legal
counsel satisfactory to Senior Tier Mezzanine Lender legal opinions,
including, without limitation, substantive nonconsolidation opinions,
in form and substance satisfactory to Senior Tier Mezzanine Lender in
Senior Tier Mezzanine Lender=s sole and absolute discretion.
(c) No Default or Event of Default has occurred under the
Existing Loan Documents.
5. Junior Tier Mezzanine Note.
(a) Mezzanine Loan. On the Effective Date simultaneous to the
effectiveness of the amendments to the Existing Loan Documents
contemplated by this Agreement, Borrowers shall enter into an agreement
(the "Assumption and Release Agreement") with Lenders, pursuant to
which (i) Junior Tier Mezzanine Lender will assume the indebtedness
evidenced by Junior Tier Mezzanine Note, (ii) Senior Tier Mezzanine
Lender will release any and all obligations of Senior Tier Mezzanine
Borrower under Junior Tier Mezzanine Note, and (iii) Junior Tier
Mezzanine Lender will agree to enter into new mezzanine loan documents
(the
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"Junior Tier Mezzanine Loan Documents") evidencing and securing the
loan evidenced by Junior Tier Mezzanine Note.
(b) Junior Tier Mezzanine Loan. The portion of the
Indebtedness in the principal amount of $14,500,000 evidenced by the
Junior Tier Mezzanine Note (the "Junior Tier Mezzanine Loan") is hereby
severed from the balance of the Indebtedness and all obligations
relating to the Junior Tier Mezzanine Loan shall be obligations solely
of Junior Tier Mezzanine Borrower. From and after the Effective Date,
the Junior Tier Mezzanine Loan and all obligations related thereto
shall be evidenced by the Junior Tier Mezzanine Note and the other
Junior Tier Mezzanine Loan Documents. Simultaneous to the effectiveness
of the amendments contemplated by this Agreement and pursuant to the
Assumption and Release by Senior Tier Mezzanine Borrower, Senior Tier
Mezzanine Borrower shall be released from all obligations relating to
the Junior Tier Mezzanine Loan and all obligations relating to the
portion of the Indebtedness evidenced by the Junior Tier Mezzanine
Note. From and after the Effective Date and simultaneous to the
effectiveness of the amendments contemplated by this Agreement, the
Junior Tier Mezzanine Loan shall be secured solely by the that certain
Junior Tier Mezzanine Loan and Security Agreement ("Junior Tier
Mezzanine Loan Agreement"), dated as of the date hereof and the other
Loan Documents (Junior Tier Mezzanine) (as defined in the Junior Tier
Mezzanine Loan Agreement) and none of the Existing Loan Documents shall
secure any portion of the Indebtedness evidenced by the Junior Tier
Mezzanine Note.
(c) References to Note. All references in any of the Existing
Loan Documents to the Mezzanine Note (i) prior to the execution of the
Assumption and Release Agreement, shall be deemed to be references to
the Mezzanine Note and (ii) after the execution of the Assumption and
Release Agreement, shall be deemed to be references to Senior Tier
Mezzanine Note.
(d) Loan and Loan Amount. Effective after the execution and
delivery of the Assumption and Release Agreement, Section 1.1 of the
Existing Mezzanine Loan Agreement is hereby modified by eliminating the
definition of "Loan" and "Mezzanine Note" and substituting the
following therefor:
"Loan" shall mean the loan in the amount of Twenty-Six Million Five
Hundred Thousand Dollars ($26,500,000) made by Mezzanine Lender to
Mezzanine Borrower pursuant to this Agreement.
"Mezzanine Note" shall mean that certain Mezzanine Note, dated as of
September 18, 2002, in the principal amount of Twenty-Six Million Five
Hundred Thousand Dollars ($26,500,000), made by Mezzanine Borrower, as
maker, in favor of Mezzanine Lender, as payee, as the same may be
amended, restated, replaced, supplemented or otherwise modified from
time to time.
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(e) Junior Tier Mezzanine Account and Junior Tier Mezzanine
Loan and Security Agreement. Section 1.1 of the Existing Mezzanine Loan
Agreement is hereby modified by adding the following definitions:
"Junior Tier Mezzanine Account" shall have the meaning set forth in
Section 3.1.1 of the Junior Tier Mezzanine Loan and Security Agreement.
"Junior Tier Mezzanine Lender" shall mean GERMAN AMERICAN CAPITAL
CORPORATION, a Maryland corporation, together with its successors and
assigns.
"Junior Tier Mezzanine Loan and Security Agreement" shall mean that
certain Junior Tier Mezzanine Loan and Security Agreement, dated as of
September 30, 2002, by and between BRE/Park Place Junior Mezzanine
L.L.C, as mezzanine borrower, and German American Capital Corporation,
as mezzanine lender.
"Junior Tier Mezzanine Loan Documents"shall have the meaning ascribed
to the term "Loan Documents (Junior Tier Mezzanine)"set forth in the
Junior Tier Mezzanine Loan and Security Agreement.
6. Cash Management.
(a) Monthly Funding. Sections 3.1.6 (a) and (c) of the
Existing Loan Agreement are hereby modified by eliminating such
sections in their entirety and substituting the following therefor:
(a) Mezzanine Borrower hereby irrevocably authorizes
Mezzanine Lender to transfer (and, pursuant to the
Account Agreement (Mezzanine) shall irrevocably
authorize Cash Management Bank (Mezzanine) to execute
any corresponding instructions of Mezzanine Lender),
and Mezzanine Lender shall transfer, from the
Mezzanine Account by 11:00 a.m. New York time
commencing on the tenth (10th) calendar day of each
calendar month (and if such day is not a Business Day
then on the immediately preceding Business Day) and
on each Business Day thereafter until the earlier to
occur (i) the ninth (9th) calendar day of the next
succeeding calendar month (or, if such day is not a
Business Day, then the immediately preceding Business
Day), or (ii) as soon after the tenth (10th) calendar
day of such month as there shall be sufficient
collected funds on deposit in the Mezzanine Account,
and from time to time (but no less frequently than
weekly thereafter) funds in an amount equal to the
sum of any Protective Advances which may have been
advanced by (and not previously reimbursed to) the
Mezzanine Lender pursuant to the terms of the Loan
Documents (Mezzanine) to cure any Default or Event of
Default, any Mortgage Default or Mortgage Event of
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Default, or to protect the Collateral together with
any interest payable on such amounts pursuant to the
Loan Documents (Mezzanine), plus (x) the unpaid Debt
Service (Mezzanine) for the next occurring Payment
Date, plus (y) an amount equal to such payments for
any prior month(s), to the extent not previously
paid, plus (z) an amount equal to the amount
sufficient to pay any other amounts due under the
Loan Documents (Mezzanine) (other than any Debt
Service (Mezzanine)). Mezzanine Borrower acknowledges
that Mezzanine Lender shall not be required to make
such withdrawal and deposit until such time as
Mezzanine Lender is able to calculate the amount of
the Debt Service (Mezzanine) for the next occurring
Payment Date. As used herein, the term NET EXCESS
CASH FLOW means the amount available in the Mezzanine
Account after the transfers to the Mezzanine Debt
Service Reserve Account required under this Section
3.1.6 have been made and the term NET EXCESS CASH
FLOW COMMENCEMENT DATE shall mean the date such
amounts have been fully funded or reserved within the
Mezzanine Account in any given calendar month.
(c) Provided Mezzanine Borrower shall have deposited
into the Mezzanine Account all funds then required to
have been so deposited, then Mezzanine Lender shall
transfer the Net Excess Cash Flow from the Mezzanine
Account to the Junior Tier Mezzanine Account within
one (1) Business Day following the Net Excess Cash
Flow Commencement Date for each month and on a daily
basis thereafter until the end of the applicable
collection period. Mezzanine Borrower shall, upon
request by Mezzanine Lender prior to transferring
such Net Excess Cash Flow, cause the Mortgage
Borrower to provide Mezzanine Lender with evidence
reasonably satisfactory to Mezzanine Lender that
Mortgage Borrower has paid all Operating Expenses for
the month immediately preceding the month in which
such request is made by Mezzanine Lender. From and
after the transfer of such Net Excess Cash Flow to
the Junior Tier Mezzanine Account, Mezzanine Lender
shall have no further liability or responsibility
with respect to the funds so transferred or the
investment thereof.
7. Additional Representations and Warranties: Senior Tier Mezzanine
Borrower hereby represents and warrants that:
(a) The Existing Loan Documents are listed on Exhibit A and
there are no other agreements between Senior Tier Mezzanine Lender and
Senior Tier Mezzanine Borrower, any guarantor, manager, franchisor or
any of their respective affiliates evidencing or securing the Mezzanine
Loan. The Existing Loan Documents are unmodified and in full force and
effect
(b) Since the Closing Date, no Default or Event of Default
under any of the Existing Loan Documents has occurred.
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(c) The Existing Mezzanine Loan has not, since the date of its
origination, been 30 days or more past due in respect of any debt
service payments required in any of the Existing Loan Documents.
(d) Senior Tier Mezzanine Borrower has not been a debtor in
any state or federal bankruptcy or insolvency proceeding.
(e) No taking has been commenced or, to Senior Tier Mezzanine
Borrower's knowledge, is contemplated with respect to all or any
portion of any Property or for the relocation of roadways providing
access to any Property.
(f) The Existing Loan Documents, as hereby amended (and as
amended by that certain First Amendment to Loan and Security Agreement
and Other Loan Documents, dated as of the date hereof, entered into by
and between BRE/Park Place L.L.C., a Delaware limited liability
company, and German American Capital Corporation), executed by Senior
Tier Mezzanine Borrower and, as applicable, Guarantor, in connection
with the Senior Tier Mezzanine Loan, including, without limitation, the
Senior Tier Mezzanine Note, are the legal, valid and binding
obligations of Senior Tier Mezzanine Borrower and, as applicable,
Guarantor, enforceable against Senior Tier Mezzanine Borrower and, as
applicable, Guarantor, in accordance with their terms, subject only to
bankruptcy, insolvency and other limitations on creditor=s rights
generally and to equitable principles. Such Existing Loan Documents are
not subject to any right of rescission, setoff, counterclaim or defense
by the Senior Tier Mezzanine Borrower, including the defense of usury,
nor will the operation of any of the terms of the Senior Tier Mezzanine
Note or such other Existing Loan Documents, as hereby amended, or the
exercise of any rights thereunder, render same unenforceable against
Senior Tier Mezzanine Borrower, in whole or in part, or subject to any
right of rescission, setoff, counterclaim, or defense by Senior Tier
Mezzanine Borrower, including the defense of usury, and Senior Tier
Mezzanine Borrower has not asserted any right of rescission, setoff,
counterclaim or defense with respect thereto.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York pursuant to '5-1401 of the New
York General Obligations Law.
9. Notices to Lender. All notices furnished or to be furnished to
Senior Tier Mezzanine Lender pursuant to the Existing Loan Documents, from and
after the date hereof, shall be sent to the parties and in the manner described
in the Existing Loan Agreement .
10. References Generally. All references in the Existing Mezzanine Loan
Agreement, as amended hereby, to any other Existing Loan Document shall be
deemed to refer to such Existing Loan Document as amended hereby. All references
in any of the other Existing Loan Documents to
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the Existing Mezzanine Loan Agreement shall be deemed to be references to the
Existing Loan Agreement as amended hereby.
11. Ratification. The Existing Loan Documents, except as amended
hereby, shall remain unchanged and in full force and effect in accordance with
their terms and, as amended hereby, are hereby ratified and confirmed.
12. Counterparts. This Agreement may be executed in multiple
counterparts, all of which, when taken together, shall constitute a fully
executed original agreement.
13. Successors and Assigns. This Agreement shall be binding upon, and
shall inure to the benefit of, the parties hereto and their respective
successors and assigns.
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IN WITNESS WHEREOF, each of the parties hereto have executed this
Agreement as of the day and year first written above.
SENIOR TIER MEZZANINE BORROWER:
BRE/PARK PLACE MEZZANINE L.L.C.,
a Delaware limited liability
company
By: /s/ Dennis McDonagh
------------------------------
Name: Dennis J. McDonagh
Title: Managing Director, Vice
President, Treasurer & Secretary
Agreed to and Acknowledged solely with
respect to Sections 4(a), 5(a) and 5(b) hereof:
JUNIOR TIER MEZZANINE BORROWER:
BRE/PARK PLACE JUNIOR MEZZANINE L.L.C.,
a Delaware limited liability company
By: /s/ Dennis McDonagh
-----------------------------------
Name: Dennis J. McDonagh
Title: Managing Director, Vice President, Treasurer & Secretary
SENIOR TIER MEZZANINE LENDER:
GERMAN AMERICAN CAPITAL
CORPORATION, a Maryland corporation
By: /s/ Eric Schultz
--------------------------
Name: Eric Schultz
Title: Vice President
By: /s/ Stephen Choe
------------------------------
Name: Stephen H. Choe
Title: Authorized Signatory