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EXHIBIT 10.67
$20,166,666
CREDIT AGREEMENT,
dated as of August 11, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES LIMITED PARTNERSHIP
A Delaware limited partnership
as the Lender,
and
CRESCENT DEVELOPMENT MANAGEMENT CORP.,
a Delaware corporation
as the Borrower
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT (the "Agreement"), dated as of August 11, ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Lender") and CRESCENT DEVELOPMENT MANAGEMENT CORP., a
Delaware corporation (the "Borrower").
ARTICLE I
WHEREAS, the Borrower has applied for and Lender is willing, on the
terms and subject to the conditions hereinafter set forth, to extend to the
Borrower a line of credit loan (the "Loan"), in a maximum aggregate principal
amount at any one time outstanding not to exceed $20,166,666, from time to time
prior to the Commitment Termination Date;
WHEREAS, the proceeds of the Loan will be used from time to time for
working capital purposes of the Borrower in order to provide funds for making
equity investments, as provided for in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE II
COMMITMENTS, ADVANCE PROCEDURES AND NOTES
SECTION 2.1 Commitment. On the terms and subject to the conditions of
this Agreement (including Article V), Lender agrees to make advances under the
Loan to the Borrower up to an aggregate amount of Twenty Million One Hundred
Sixty-Six Thound Six Hundred Sixty-Six and No/100 Dollars ($20,166,666) (the
"Commitment Amount") pursuant to Section 2.2. Lender shall not be required to
make any advance under this Loan if, after giving effect thereto, (a) subject
to the revolving feature described in Section 2.3 hereof with respect to Phased
Projects, the aggregate principal amount of all Advances made would exceed the
Commitment Amount or (b) with respect to a Phased Project, the aggregate
Project Equity Advance then outstanding with respect to such Project would
exceed the Project Advance Limit for such Project or (c) with respect to any
Project, the aggregate Project Equity Advance made with respect to such Project
(whether or not all or any portion of such Project Equity Advance remains
outstanding) would exceed the Total Equity for such Project. Notwithstanding
anything in this Agreement to the contrary, (i) Lender shall not be obligated
to advance additional funds with respect to a Project if a default (after
notice and expiration of cure periods) shall occur by a Subpartnership under
the Project Loan Documents, (ii) Lender shall not be obligated to advance
additional funds in excess of the aggregate Commitments pursuant to Approved
Project Plans if there is an Incapacity of ▇▇▇▇▇▇▇▇ (as defined in the
Partnership Agreement), (iii) Lender shall not be obligated to advance
additional funds if there is an Event of Default (as defined in the Partnership
Agreement) that occurs under the Partnership Agreement and that remains uncured
and (iv) Lender shall not be obligated to advance more than 20% of the
Commitment with respect to a Project until the earlier of that point in time
when (A) the Subpartnership with respect to such Project has entered into a
binding contract for the purchase of real property in connection with the
Project or (B) a Project Loan Commitment has been received from a Project
Lender with respect to the Project.
SECTION 2.2 Advance Procedure. Borrower may from time to time request
that an Advance be made. Each Advance following the Initial Advance shall be in
an amount which is equal to the lesser of (a) the unused amount of the
Commitment, or (b) the allowable Project Equity Advance for the applicable
Project. The request shall be made by delivering a Application for Advance to
the Lender not less than three (3) Business Days prior to the date upon which
such Advance is to be made and, if all such conditions precedent to such
Advance have been satisfied, Lender shall make such Advance directly to the
Borrower by wire transfer to the accounts the Borrower shall have specified in
its Application for Advance.
SECTION 2.3 Revolving Feature of Project Advance Limit. Mandatory
payments made pursuant to Section 3.1.2 hereof with respect to Phased Projects
which are properly designated as Special Mandatory Prepayments shall create
availability under such Project Advance Limit in an amount equal to the
principal portion of such Special Mandatory Payment; provided however, nothing
contained in this sentence shall be construed to increase a Project Advance
Limit above its original amount.
SECTION 2.4 Note. The Loan shall be evidenced by a single promissory
note (the "Note") payable to the order of Lender in the maximum principal
amount of Twenty Million One Hundred Sixty-Six Thousand Six Hundred Sixty-Six
and No/100 Dollars ($20,166,666).
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ARTICLE III
PAYMENTS AND INTEREST
SECTION 3.1 Payments. Payments of the Loan shall be made as set forth
in this Section 3.1 and shall be without premium or penalty.
SECTION 3.1.1 Final Maturity. On the Stated Maturity Date, the
Borrower shall repay in full all accrued but unpaid interest and the entire
unpaid principal amount of the Loan.
SECTION 3.1.2 Mandatory Payments. The Borrower shall, within one (1)
Business Day following (a) receipt by Borrower of any Distribution other than a
Tax Distribution, make a mandatory payment of the Loan in an amount equal to
such Distribution less an amount approved by Lender in its reasonable
discretion for unpaid expenses and payables incurred by Borrower in the
ordinary course of business and a reasonable reserve for future expenses and
(b) receipt by Borrower of any payments on an Emergency Loan or a Default Loan,
make a mandatory payment of the Loan in an amount equal to the payments
received (less amounts retained for expenses and payables). All mandatory
payments made under this Section shall be applied first to accrued but unpaid
interest and thereafter to the outstanding principal balance of the Loan. Each
mandatory payment made hereunder which is attributable to a Distribution shall
be accompanied by a certificate from the Borrower to the Lender which
designates whether the mandatory payment is a Special Mandatory Payment. If
Borrower fails to provide such a certificate, Lender shall designate whether
the mandatory payment is a Special Mandatory Payment and such determination
shall be conclusive. Borrower acknowledges to Lender that (i) each
Subpartnership is generally obligated to distribute all net cash flow (other
than tax distributions) to its members (including the Partnership) and (ii) the
Partnership is generally obligated to distribute all net cash flow (other than
tax distributions and amounts established as reserves) to its partners
(including the Borrower). Notwithstanding anything in this Agreement to the
contrary, Lender shall not be obligated to make any additional Advance to
Borrower pursuant to this Agreement if, based on a determination by Lender in
its reasonable discretion, the Partnership or any Subpartnership has failed to
satisfy its obligation to make the distributions described in the preceding
sentence and such failure is continuing.
SECTION 3.1.3 Acceleration of Stated Maturity Date. Immediately upon
any acceleration of the Stated Maturity Date of the Loan pursuant to Section
8.2 or Section 8.3, the Borrower shall repay the Loan to the full extent of
such acceleration.
SECTION 3.2 Interest Provisions. Interest on the outstanding principal
amount of the Loan shall accrue and be payable in accordance with this Section
3.2.
SECTION 3.2.1 Rate. Prior to an Event of Default, the outstanding
principal balance of the Loan shall accrue interest at the rate (the "Interest
Rate") of 11.5%, compounded annually; provided, however, that in no event will
the Interest Rate exceed a rate that would cause the yield to maturity on the
Loan to equal or exceed that rate described in Section 163(i)(1)(B) of the
Code.
SECTION 3.2.2 Post-Maturity Rates. Upon and after an Event of Default,
the Loan shall accrue interest on the outstanding principal balance of the Loan
and, to the extent permitted by applicable law, on the unpaid interest, at a
rate per annum equal to the Interest Rate plus an additional 5.0% per annum
(the "Default Rate"); provided in no event shall the Default Rate exceed the
maximum rate of interest permitted by applicable law.
SECTION 3.2.3 Accrual. At the end of each calendar year during the
term hereof, all interest which has accrued but has not been paid during such
calendar year shall be added to the outstanding principal balance of the Loan
and shall, thereafter, bear interest, prior to an Event of Default, at the
Interest Rate.
ARTICLE IV
CERTAIN OTHER PROVISIONS
SECTION 4.1 Payments, Computations, etc. Unless otherwise expressly
provided, all payments by the Borrower pursuant to this Agreement, the Note or
any other Loan Document shall be made, without setoff, deduction or
counterclaim, not later than 12:00 noon, Fort Worth, Texas time, on the date
due, in same day or immediately available funds, to such account as the Lender
shall specify from time to time by written notice delivered to the Borrower.
Whenever any payment to be made shall otherwise be due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
and such extension of time shall be included in computing interest and fees, if
any, in connection with such payment.
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SECTION 4.2 Setoff. Lender shall, upon the occurrence of any Default
have the right to appropriate and apply to the payment of the Note (whether or
not then due) all amounts then held by such Lender of the Borrower. The rights
of Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which
Lender may have. The Borrower hereby waives all rights of setoff, appropriation
and application it may have pursuant to applicable law or otherwise.
SECTION 4.3 Use of Proceeds. The proceeds of the Loan shall be used as
follows:
(a) the Initial Advance shall be used by Borrower to defray
expenses incurred in connection with this transaction; and
(b) each other Advance (other than the Initial Advance) shall be
used by Borrower solely to make capital contributions to the
Partnership, in an amount which does not exceed the Project Equity
Advance for a Project.
ARTICLE V
CONDITIONS TO BORROWING
SECTION 5.1 Initial Advance. The obligations of the Lender to fund the
Initial Advance shall be subject to the prior or concurrent satisfaction of
each of the conditions precedent set forth in this Section 5.1.
SECTION 5.1.1 Application for Advance. The Lender shall have received
an Application for Advance.
SECTION 5.1.2 Resolutions, etc. The Lender shall have received from
Borrower a certificate of resolutions and incumbency as to resolutions of its
Board of Directors then in full force and effect authorizing the execution,
delivery and performance of this Agreement, the Note and each other Loan
Document to be executed by it. SECTION 5.1.3 Delivery of Note. The Lender shall
have received the Note duly executed and delivered by the Borrower.
SECTION 5.1.4 Borrower Security Agreement. The Lender shall have
received executed counterparts of the Borrower's Security Agreement together
with such UCC-1 financing statements and UCC search reports as Lender may
require.
SECTION 5.1.5 Financial Information, etc. The Lender shall have
received, in form and scope reasonably satisfactory to Lender, the financial
statements referred to in Section 6.5.
SECTION 5.1.6 Closing Fees, Expenses, etc. The Lender shall have
received all fees, costs and expenses due and payable pursuant to this
Agreement.
SECTION 5.2 All Advances. The obligation of Lender to fund future
Advances shall be subject to the satisfaction of each of the conditions
precedent set forth in this Section 5.2.
SECTION 5.2.1 Application for Advance. The delivery of an Application
for Advance.
SECTION 5.2.2 Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Advances the following statements shall be true
and correct to the satisfaction of the Lender:
(a) the representations and warranties set forth in this Agreement
shall be true and correct with the same effect as if then made;
(b) no Default shall have then occurred and be continuing.
SECTION 5.2.3 Organic Documents. The Lender shall have received a copy
of the Organic Documents for the Subpartnership which will be capitalized with
the proceeds of the requested Advance.
SECTION 5.2.4 Resolutions, Etc.. The Lender shall have received from
Partnership (in its individual capacity and in its capacity as manager of the
applicable Subpartnership) a certificate of resolutions and
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incumbency authorizing the organization of the Subpartnership, and the
execution, delivery and performance by the Subpartnership of the Project Loan
Documents.
SECTION 5.2.5 Approved Budget. The Lender shall have received a final
Approved Budget with respect to the Project to be constructed by the
Subpartnership in which Partnership proposes to make a capital contribution
with the proceeds of the requested Advance (the "Contemplated Project").
SECTION 5.2.6 Project Loan Commitment. The Lender shall have received
a fully executed copy of the Project Loan Commitment for the Contemplated
Project if there is a Project Loan Commitment for the Contemplated Project at
the time of the delivery of the Application for Advance. In the event there is
not a Project Loan Commitment for the Contemplated Project at the time of the
delivery of the Application for Advance but such Project Loan Commitment is
later received, Borrower shall promptly provide a copy of such commitment to
Lender upon receipt.
SECTION 5.2.7 Evidence of Insurance. The Lender shall have received
adequate evidence that all insurance required by this Agreement is in effect
with respect to the Contemplated Project.
SECTION 5.2.8 Evidence of Approval. The Lender shall have received
evidence, satisfactory to it, that the Project Lender has approved all
conditions precedent to its obligation to advance proceeds of the Project Loan
with respect to the Contemplated Project.
SECTION 5.2.9 Estoppel Letter from Project Lender. If there is a
Project Loan Commitment from a Project Lender at the time of the delivery of
the Application for Advance, the Lender shall have received a duly executed
letter from the Project Lender providing Lender with written notice of any
event of default under the Project Loan Documents with respect to the
Contemplated Project, and a reasonable opportunity in which Lender may cure
such default prior to the exercise by the Project Lender of any remedies
available to it under the Project Loan Documents.
SECTION 5.2.10 Fees and Expenses. The Lender shall have received all
fees, costs and expenses due and payable pursuant to this Agreement.
SECTION 5.2.11 Satisfactory Legal Form. All documents executed or
submitted pursuant hereto shall be reasonably satisfactory in form and
substance to the Lender and its counsel; the Lender shall have received all
other information, approvals, opinions, documents or instruments as the Lender
or its counsel may reasonably request.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into this Agreement and to make the Loan
hereunder and to make each Advance pursuant to the Loan, the Borrower
represents and warrants unto the Lender as of the day and year first written
above and on the date of each Advance as set forth in this Article VI.
SECTION 6.1 Organization, etc. The Borrower is a duly formed
corporation under the laws of Delaware, is duly qualified to do business and
has full power and authority and holds all requisite governmental licenses,
permits and other approvals to enter into and perform its obligations under
this Agreement, the Note and each other Loan Document to which it is a party,
and to own and hold its property and to conduct its business substantially as
currently conducted by it.
SECTION 6.2 Due Authorization, Non-Contravention, etc. The execution,
delivery and performance by the Borrower of this Agreement, the Note and each
other Loan Document executed or to be executed by it, are within the Borrower's
corporate powers, have been duly authorized by all necessary action (including
but not limited to any consent of stockholders required by law or its Organic
Documents) and do not (a) contravene the Borrower's Organic Documents; or (b)
contravene any contractual restriction, law or governmental regulation or court
decree or order binding on or affecting the Borrower except for such
contraventions which will not, singly or in the aggregate, have a material
adverse effect on the ability of the Borrower to perform its obligations under
this Agreement or any Loan Document.
SECTION 6.3 Government Approval, Regulation, etc. No authorization,
consent or approval or other action by, and no notice to, filing with or
license from, any governmental authority or regulatory body or other Person is
required for the due execution or delivery by the Borrower of this Agreement,
the Note or any other Loan
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Document to which it is a party, or for the consummation and performance of the
transactions contemplated hereby or thereby.
SECTION 6.4 Validity, etc. Each of this Agreement and, upon the due
execution and delivery thereof, the Note and each other Loan Document executed
by the Borrower or Partnership, constitutes the legal, valid and binding
obligation of such parties enforceable in accordance with its respective terms,
except as such enforceability may be limited by applicable bankruptcy,
reorganization, insolvency and other similar laws affecting creditors rights
generally.
SECTION 6.5 Financial Information. All financial information which has
been or shall hereafter be furnished by or on behalf of the Borrower or by any
other Person at the Borrower's direction to the Lender for the purposes of or
in connection with this Agreement present fairly the financial condition as at
the dates thereof (subject to normal year end adjustments in the case of
unaudited financial statements).
SECTION 6.6 No Material Adverse Change. There has been no material
adverse change in the business, financial condition, operations, assets,
revenues, or properties, of the Borrower taken as a whole from the financial
information previously provided to Lender.
SECTION 6.7 No Default Under Indebtedness. No event of default has
occurred and is continuing, and no event has occurred which with the giving of
notice, passage of time or both would become a material event of default under
any of the Indebtedness permitted to be incurred pursuant to Section 7.2.2
hereof.
SECTION 6.8 Litigation, Labor Controversies, etc. There is no pending
or, to the knowledge of the Borrower, threatened litigation, action, proceeding
or labor controversy affecting the Borrower, Partnership or any of its
Subpartnerships which, if adversely determined could reasonably be expected to
have a material adverse effect on Borrower, Partnership, any Subpartnerships,
any Projects or Lender.
SECTION 6.9 Taxes. The Borrower has filed all material tax returns and
reports required by law to have been filed and has paid all taxes and
governmental charges thereby shown to be due and payable.
SECTION 6.10 ERISA. Neither Borrower, nor, to the best knowledge of
Borrower, any other person has taken any action or failed to take any action
which would subject Borrower, Partnership or any Subpartnership to any
potential liability under ERISA.
SECTION 6.11 Accuracy of Information. All factual information, as
amended, supplemented or modified, furnished by or on behalf of the Borrower in
writing to (or as directed by) the Lender for purposes of or in connection with
this Agreement, any other Loan Document or any transaction contemplated hereby
is true and accurate in all material respects as of the date of execution and
delivery of this Agreement and all other such factual information thereafter
furnished by or on behalf of the Borrower to (or as directed by) the Lender
pursuant to the terms of this Agreement or any other Loan Document is true and
accurate in every material respect on the date as of which such information as
dated or certified, and does not omit any material fact necessary to make such
Information not misleading.
ARTICLE VII
COVENANTS
SECTION 7.1 Affirmative Covenants. Borrower will perform the
obligations set forth in this Section 7.1.
SECTION 7.1.1 Financial Information, Reports, Notices, etc. Borrower
will furnish, or will cause to be furnished, to Lender copies of the following
financial statements, reports, notices and information:
(a) As soon as available and in any event within 45 days after the
end of each Fiscal Quarter of each Fiscal Year of Borrower (including
the final Fiscal Quarter of each Fiscal Year), Borrower will deliver,
or cause to be delivered, balance sheets of Borrower as of the end of
such Fiscal Quarter and statements of income, cash flow and Borrower's
equity for such Fiscal Quarter and for the period commencing at the
end of the previous Fiscal Year and ending with the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures
for the corresponding Fiscal Quarter of the previous Fiscal Year,
certified by the chief financial Officer of Borrower in a manner
acceptable to the Lender.
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(b) if requested by Lender for any Fiscal Year, Borrower will have
prepared at Borrower's expense and Borrower will deliver, or cause to
be delivered, to Lender a copy of an annual audit report for Borrower
including therein balance sheets of Borrower as of the end of such
Fiscal Year and statements of cash flow, income and Borrower's equity
for such Fiscal Year, in each case certified (without qualification)
by independent public accountants reasonably acceptable to the Lender.
(c) a copy of all financial accounting and reports which are to be
provided to the partners of the Partnership pursuant to Article 11 of
the Partnership Agreement.
(d) As soon as possible and in any event within three Business
Days after becoming aware of
(i) the occurrence of any material adverse development with
respect to any Project, Subpartnership, Project Loan or
Partnership's investment in any Subpartnership, or
(ii) copies of any material notices or communications from a
Project Lender or a Governmental Authority with respect to
Borrower, Partnership, a Project or the Project Loan Documents; or
(iii) copies of any material notices or communications from
Partnership, a Subpartnership to a Project Lender or Governmental
Authority with respect to a Project or the Project Loan Documents.
Borrower will deliver, or will cause to be delivered, notice thereof
and copies of all documentation relating thereto.
(e) Borrower will deliver, or will cause to be delivered, such
other information respecting the condition or operations, financial or
otherwise, of the Borrower, Partnership, or any Subpartnerships as the
Lender may from time to time reasonably request.
SECTION 7.1.2 Compliance with Laws, etc. Borrower will, and,
consistent with Borrower's rights and obligations under the Partnership
Agreement, will cause Partnership and each Subpartnership to, comply in all
material respects with all applicable Governmental Requirements such compliance
to include, but not be limited to:
(a) the maintenance and preservation of its existence and
qualification in all foreign jurisdictions where it is required to do
so except where the failure to do so would not be material; and
(b) the payment, before the same become delinquent, of all taxes,
assessments and governmental charges imposed upon it or upon its
property except to the extent they are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves
in accordance with GAAP shall have been set aside on its books.
SECTION 7.1.3 Maintenance of Properties. Borrower will, and,
consistent with Borrower's rights and obligations under the Partnership
Agreement, will cause Partnership and each Subpartnership to, maintain,
preserve, protect and keep its properties (specifically including but not
limited to, the Projects) in good repair, working order and condition, normal
wear and tear excepted, and make necessary and proper repairs, renewals and
replacements so that its business carried on in connection therewith may be
properly conducted at all times.
SECTION 7.1.4 Books and Records. Borrower will, and, consistent with
Borrower's rights and obligations under the Partnership Agreement, will cause
Partnership and each of its Subpartnerships to, keep books and records which
accurately reflect all of its business affairs and transactions in all material
respects. Borrower will, and will cause Partnership and each Subpartnership to,
permit the Lender at reasonable times and intervals during normal business
hours to examine and photocopy extracts from any of its books or other
corporate records. The Borrower shall pay any fees of its independent public
accountant incurred in connection with the Lender's exercise of its rights
pursuant to this Section.
SECTION 7.1.5 Environmental Covenant. Borrower will, and, consistent
with Borrower's rights and obligations under the Partnership Agreement, will
cause Partnership and each of its Subpartnerships to,
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(a) use and operate all of its assets in compliance in all
material respects with all Environmental Laws, keep all necessary and
material permits, approvals, certificates, licenses and other
authorizations required under Environmental Laws in effect and remain
in compliance therewith, and handle all Hazardous Materials in
compliance in all material respects with all Environmental Laws; and
(b) immediately notify the Lender and provide copies upon receipt
of all potentially material written claims, complaints or notices
(excluding routine fee or schedule notices) relating to non-compliance
with, or liabilities or obligations arising under or relating in any
way to, Environmental Laws with respect to its assets.
SECTION 7.1.6 ERISA Compliance. Borrower will, and will cause each of
its ERISA affiliates to, maintain all employee benefit plans in compliance in
all material respects with all applicable law, including any reporting
requirements, and make all contributions due under the terms of each employee
benefit plan or as required by law.
SECTION 7.1.7 Additional Funding Instruments. Borrower acknowledges to
Lender that the Subscribers have contributed (or have executed subscription
agreements requiring the immediate contribution of), in the aggregate, Three
Million and No/100 Dollars ($3,000,000) in cash to the capital of Borrower.
Borrower will, through its Board of Directors, make an Assessment Determination
at that point in time when the aggregate of the accrued but unpaid interest and
the unpaid principal balance of the Loan first equals Twelve Million and No/100
Dollars ($12,000,000) or would exceed such amount if a requested Advance was
made. In such event, the Board of Directors of Borrower shall make written
demand upon each Subscriber to contribute to Borrower cash in an amount equal
to the product realized by multiplying (i) One Million and No/100 Dollars
($1,000,000) by (ii) a fraction, the numerator of which is the number of shares
of common stock of Borrower owned by Subscriber as of the date of the
Assessment Determination and the denominator of which is the number of
outstanding shares of common stock of Borrower as of the date of the Assessment
Determination ("Initial Equity Shortfall Share"). Notwithstanding anything to
the contrary contained in this Agreement, no additional Advance will be made to
Borrower pursuant to this Agreement which would increase the aggregate unpaid
principal and interest on the Loan above Twelve Million and No/100 Dollars
($12,000,000) unless and until each Subscriber has contributed cash to Borrower
in an amount equal to such Subscriber's Initial Equity Shortfall Share.
Borrower will, through its Board of Directors, make an Assessment Determination
at that point in time when the aggregate of the accrued but unpaid interest and
the unpaid principal balance of the Loan first equals Sixteen Million and
No/100 Dollars ($16,000,000) or would exceed such amount if a requested Advance
was made. In such event, the Board of Directors of Borrower shall make written
demand upon each Subscriber to contribute to Borrower cash in an amount equal
to the product realized by multiplying (i) One Million and No/100 Dollars
($1,000,000) by (ii) a fraction, the numerator of which is the number of shares
of common stock of Borrower owned by Subscriber as of the date of the
Assessment Determination and the denominator of which is the number of
outstanding shares of common stock of Borrower as of the date of the Assessment
Determination ("Secondary Equity Shortfall Share"). Notwithstanding anything to
the contrary contained in this Agreement, no additional Advance will be made to
Borrower pursuant to this Agreement which would increase the aggregate unpaid
principal and interest on the Loan above Sixteen Million and No/100 Dollars
($16,000,000) unless and until each Subscriber has contributed cash to Borrower
in an amount equal to such Subscriber's Secondary Equity Shortfall Share.
SECTION 7.2 Negative Covenants. Borrower will comply with the
obligations set forth in this Section 7.2.
SECTION 7.2.1 Business Activities. Borrower will not, and, consistent
with Borrower's rights and obligations under the Partnership Agreement, will
not permit Partnership or any of its Subpartnerships to, engage in any business
activity other than those activities set forth in the Organic Documents for
each such entity.
SECTION 7.2.2 Indebtedness. The Borrower will not, and, consistent
with Borrower's rights and obligations under the Partnership Agreement, will
not permit Partnership or any of its Subpartnerships to, create, incur, assume
or suffer to exist or otherwise become or be liable in respect of any
indebtedness, other than, without duplication, the following:
(a) indebtedness in respect of the Loan and other obligations;
(b) unsecured Indebtedness incurred in the ordinary course of its
business in the nature of open accounts extended by suppliers and
other vendors on normal trade terms in connection with purchases of
goods and services, accrued liabilities, deferred income and deferred
taxes;
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(c) Emergency Loans and Default Loans, as described in the
Partnership Agreement and the Subpartnership Organic Documents;
(d) the Project Loans incurred by Subpartnerships on terms which
are consistent with the requirements of this Agreement; and
(e) other unsecured Indebtedness of the Borrower, Partnership and
the Subpartnerships in an aggregate amount not to exceed $50,000 for
the Borrower, $50,000 for the Partnership and $10,000 for any
Subpartnership.
SECTION 7.2.3 Asset Dispositions, etc. The Borrower will not, and,
consistent with Borrower's rights and obligations under the Partnership
Agreement, will not permit the Partnership or any of its Subpartnerships to,
sell, transfer, lease, contribute, convey or otherwise dispose of all or any
part of its assets to any Person, unless
(a) no Default has occurred and is continuing or would occur after
giving effect thereto; or
(b) such sale, transfer, lease or other disposition is approved by
Lender or is approved in the then current Approved Annual Business
Plan under the Partnership Agreement.
SECTION 7.2.4 Restriction on Distributions. Borrower will not make
dividend distributions to its shareholders at any time when there exists an
outstanding balance on the Loan.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.1 Listing of Events of Default. Each of the following events
or occurrences described in this Section 8.1 shall constitute an "Event of
Default." Upon the occurrence of an Event of Default (or any event or state of
facts which, with the giving of notice or the passage of time or both, would
constitute an Event of Default), the Borrower shall give notice thereof to the
Lender.
SECTION 8.1.1 Non-Payment of Obligations. The Borrower shall default
in the payment when due of any principal of the Loan or of any interest in
respect of the Loan.
SECTION 8.1.2 Breach of Warranty. Any representation or warranty made
or deemed to be made hereunder or in any other Loan Document or any other
writing or certificate furnished by or on behalf of the Borrower to the Lender
for the purposes of or in connection with this Agreement or any such other Loan
Document is or shall be incorrect when made in any material respect.
SECTION 8.1.3 Non-Performance of Other Covenants and Obligations.
There shall be a default in the due performance and observance of any other
agreement contained herein or in any other Loan Document executed by Borrower,
and such default shall continue unremedied for a period of 30 days after notice
thereof shall have been given to the Borrower by the Lender.
SECTION 8.1.4 Bankruptcy, Insolvency, etc. The Borrower, Partnership
or any of its Subpartnerships shall
(a) become insolvent or generally fail to pay, or admit in writing
its inability or unwillingness to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the appointment of a
trustee, receiver, sequestrator or other custodian for the Borrower,
Partnership or any Subpartnership or any property of any thereof, or
make a general assignment for the benefit of creditors;
(c) absent such application, consent or acquiescence permit or
suffer to exist the appointment of a trustee, receiver, sequestrator
or other custodian for the Borrower, Partnership or any Subpartnership
or for a substantial part of the property of any thereof, and such
trustee, receiver, sequestrator or other custodian shall not be
discharged within 60 days, provided that the Borrower, Partnership and
each Subpartnership hereby expressly authorize the Lender and each
Lender to appear in any court conducting any relevant proceeding
during such 60-day
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period to preserve, protect and defend their rights under the Loan
Documents;
(d) permit or suffer to exist the commencement of any (x)
bankruptcy, reorganization, debt arrangement or other case or
proceeding under any bankruptcy or insolvency law, or (y) any
dissolution, winding up or liquidation proceeding, in respect of the
Borrower, Partnership or any Subpartnership, and, if any such case or
proceeding is not commenced by the Borrower, Partnership or any
Subpartnership, such case or proceeding shall be consented to or
acquiesced in by the Borrower, Partnership or such Subpartnership or
shall result in the entry of an order for relief or, in the event of
any case or proceeding described in clause (x), shall remain for 120
days undismissed, provided that the Borrower, Partnership, each
Subpartnership hereby expressly authorizes the Lender and each Lender
to appear in any court conducting any such case or proceeding during
such 120-day period to preserve, protect and defend their rights under
the Loan Documents; or
(e) take any partnership or corporate action authorizing, or with
intent to further any of the foregoing.
SECTION 8.2 Action if Bankruptcy. If any Event of Default described in
clauses (a) through (d) of Section 8.1.4 shall occur with respect to the
Borrower, Partnership or any of its Subpartnerships, the Commitment (if not
theretofore terminated) to make Advances shall automatically terminate and the
outstanding principal amount of the Loan shall automatically be and become
immediately due and payable, without notice or demand.
SECTION 8.3 Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in Section 8.2) shall occur for any
reason, whether voluntary or involuntary, and be continuing, the Lender, shall
by notice to the Borrower declare all or any portion of the outstanding
principal amount of the Loan and other obligations to be due and payable and
the Commitment (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of the Loan shall be and become immediately due and payable,
without further notice, demand or presentment and the Commitment shall
terminate.
SECTION 8.4 Rescission of Event of Default. If an Event of Default
occurs hereunder and such Event of Default would not have occurred but for the
default by a Subpartnership (for purposes of this Section, the "Defaulting
Subpartnership") under Section 8.1.4 hereof, (such Events of Default being
described in this Section as "Specified Events of Default") then Lender shall
be required to rescind and annul the Event of Default if and only if, within
twenty (20) Business Days following such Specified Event of Default:
(a) all Defaults and Events of Default, other than the Specified
Events of Default, are remedied or waived to Lender's sole
satisfaction; and
(b) the partners of Partnership have approved of a revised
business plan with respect to the Project owned by the Defaulting
Subpartnership, the Borrower shall, on the basis of such revised
business plan, submit to Lender a revised Annual Business Plan and
Lender shall, in its reasonable discretion, Approve such Annual
Business Plan.
No action taken by Lender pursuant to this provision shall affect any
subsequent Default or Event of Default with respect to the Borrower or impair
any right or remedy consequent thereon.
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.1 Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented
to by the Borrower and the Lender. No failure or delay on the part of the
Lender, or the holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on the Borrower in any case shall entitle it to any
notice or demand in similar or other circumstances. No waiver or approval by
the Lender or the holder of any Note under this Agreement or any other Loan
Document shall, except as may be otherwise stated in such waiver or approval,
be applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 9.2 Notices. All notices and other communications provided to
any party hereto under this
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Agreement or any other Loan Document shall be in writing and addressed,
delivered or transmitted to such party at its address or facsimile number set
forth below its signature hereto, or at such other address or facsimile number
as may be designated by such party in a notice to the other parties. Any
notice, if sent via United States Postal Service Express Mail or certified
mail, properly addressed with postage prepaid or if sent via nationally
recognized overnight courier service, properly addressed with delivery fees
prepaid, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given one business day after receipt of electronic
confirmation of transmission.
SECTION 9.3 Payment of Costs and Expenses. The Borrower agrees to pay
on demand all reasonable expenses of the Lender (including the reasonable fees
and out-of-pocket expenses of counsel to the Lender and of local counsel, if
any, who may be retained by counsel to the Lender) in connection with this
transaction
SECTION 9.4 Indemnification.
(a) In consideration of the execution and delivery of this
Agreement by Lender and the extension of the Commitments, the Borrower
hereby indemnities, exonerates and holds the Lender and each of its
respective trustees, partners, stockholders, officers, directors,
employees, agents, attorneys, consultants and experts (collectively,
the "Indemnified Parties") free and harmless from and against any and
all actions, causes of action, suits, judgments, claims, demands,
losses, costs, liabilities (including, without limitation, strict
liability), penalties, fines and damages, (including, without
limitation, punitive damages), and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought),
including reasonable attorneys, consultants and experts fees and
disbursements (collectively, the "Indemnified Liabilities"), imposed
upon or incurred by the Indemnified Parties or any of them as a result
of, or arising out of, or relating to
(i) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of the Loan;
(ii) the entering into and performance of this Agreement and
any other Loan Document by any of the Indemnified Parties;
(iii) the actual or alleged release or presence of any
Hazardous Substance at, to or from any asset or former asset of
Borrower, Partnership or a Subpartnership;
(iv) the actual or alleged violation of any Environmental Law
by any person at or in connection with any current asset or former
asset of Borrower, Partnership or any of its Subpartnerships.
except for any such Indemnified Liabilities arising for the account of
a particular Indemnified Party by reason of the relevant Indemnified
Party's gross negligence or wilful misconduct, and if and to the
extent that the foregoing undertaking may be unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to
the payment and satisfaction of each of the Indemnified Liabilities
which is permissible under applicable law, except as aforesaid to the
extent not payable by reason of the Indemnified Party's gross
negligence or wilful misconduct or breach of such obligations.
(b) LENDER SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY
HEREUNDER OR ANY OTHER PERSON FOR CONSEQUENTIAL DAMAGES WHICH MAY BE
ALLEGED AS A RESULT OF THE AGREEMENT OR ANY OTHER LOAN DOCUMENT.
SECTION 9.5 Severability. Any provision of this Agreement or any other
Loan Document which is prohibited or unenforceable in any jurisdiction shall,
as to such provision and such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 9.6 Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
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SECTION 9.7 Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be an original and all of which shall constitute together but
one and the same agreement. This Agreement, together with each other Loan
Document, shall become effective when counterparts hereof executed on behalf of
the Borrower and Lender (or notice thereof satisfactory to the Lender) shall
have been received by the Lender and notice thereof shall have been given by
the Lender to the Borrower.
SECTION 9.8 Governing Law: Entire Agreement. THIS AGREEMENT, THE NOTES
AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER
AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD FOR CONFLICT OF
LAWS PRINCIPLES. Except as otherwise provided herein, this Agreement, the Note
and the other Loan Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto.
SECTION 9.9 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; provided, however, that the Borrower may not assign or
transfer its rights or obligations hereunder without the prior written consent
of the Lender.
ARTICLE X
DEFINITIONS
SECTION 10.1 Defined Terms. In addition to the terms defined in
previous portions of this Agreement, the following terms when used in this
Agreement shall, except where the context otherwise requires, have the
following meanings (such meanings to be equally applicable to the singular and
plural forms thereof):
"Additional Funding Instruments" means the Additional Funding
Instruments executed by ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Lender on
August 11, 1995.
"Advance" means all money advances under the Loan made by Lender
pursuant to an Application for Advance in accordance with Article II.
"Agreement" means, on any date, this Credit Agreement.
"Annual Business Plan" is defined in the Partnership Agreement.
"Application for Advance" means a loan request and certificate duly
executed by the Borrower, in the form which is attached hereto as Exhibit A or
such other form which is approved by Lender from time to time.
"Approved" is defined in the Partnership Agreement.
"Approved Budget" means the Proposed Budget in the Approved Project
Plan, as adjusted and approved by the Partnership, the Borrower (both general
and limited partners) and the Project Lender.
"Approved Project Plan" shall be each of the Approved Project Plans
contemplated by Section 3.2 of the Partnership Agreement which shall, among
other things, include a Proposed Budget and for Projects to be developed in
more than one phase, a Project Advance Limit..
"Assessment Determination" is defined in the Additional Funding
Instruments.
"Borrower" means Crescent Development Management Corp., a Delaware
corporation, and its successors and assigns permitted hereunder.
"Borrower Security Agreement" means the Security Agreement executed
and delivered by Borrower granting Lender a security interest in (a) all
Partner Loans and Default Loans now or hereafter owing to Borrower and all
security therefor, and (b) Borrower's partnership interest in Partnership.
"Business Day" means any day which is neither a Saturday or Sunday nor
a legal holiday which banks are authorized or required to be closed in New
York, New York.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
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"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"Commitment" is defined in the Partnership Agreement.
"Commitment Termination Date" means the earlier of (i) the occurrence
of an Event of Default, (ii) the Stated Maturity Date, or (iii) subject to the
revolving feature described in Section 2.3, the date on which Lender has made
Advances equal to the Commitment Amount.
"Construction Contract" means all construction contracts executed by
the Subpartnership for the construction of a Project.
"Contractor" means the general contractor retained by the
Subpartnership with respect to the construction of a Project.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event
of Default.
"Default Loan" means each Default Loan made by Borrower pursuant to
Section 3.5 of the Partnership Agreement.
"Distribution" means each Distribution (other than deemed
distributions) made to Borrower pursuant to Section 4.1 or Article X of the
Partnership Agreement.
"Emergency Loan" means each Emergency Loan made by Borrower pursuant
to Section 3.4 of the Partnership Agreement.
"Environmental Laws" means all applicable foreign, federal, state or
local statutes, laws, ordinances, codes, rules, regulations (including, without
limitation, consent decrees and orders and administrative orders) judgments and
permits or other authorizations relating to health, safety or the environment,
including, without limitation, CERCLA and RCRA.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to time.
"Event of Default" is defined in Section 8.1.
"Governmental Authority" means the United States, the state, county
and city or other political subdivision in which a Project is located and any
other political subdivision, agency or instrumentality exercising jurisdiction
over the Borrower, Partnership, Subpartnership or a Project.
"Governmental Requirement" means all laws, ordinances, rules and
regulations of any Governmental Authority applicable to Borrower, Partnership,
Subpartnership, or a Project.
"Hazardous Material" means any pollutant, hazardous substance,
radioactive substance, toxic substance, hazardous waste, medical waste,
radioactive waste, special waste, petroleum or petroleum-derived substance or
waste, asbestos, polychlorinated biphenyls, or any hazardous or toxic
constituent thereof and includes, but is not limited to, any substance defined
in or regulated under Environmental Laws.
"Initial Advance" means the first Advance made hereunder, in an amount
not to exceed $1,000.00.
"Loan" is defined in the preamble.
"Loan Document" means this Agreement, the Note, the Partnership
Security Agreement and all other documents evidencing, securing or governing
the Loan.
"Note" means the Line of Credit Note of the Borrower delivered to a
Lender pursuant to this Agreement.
"Organic Document" means, relative to Borrower, any of its
Subsidiaries and any other Obligor, its articles or certificate of
incorporation, as the case may be, its articles of organization, its by-laws
and all
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partnership agreements, operating agreements, shareholder agreements, voting
trusts and similar arrangements applicable to any partnership or limited
liability company interests issued by such person or authorized shares of
capital stock issued by such person.
"Partnership" means East West Resort Development, L.P., a Delaware
limited partnership.
"Partnership Agreement" means that certain Limited Partnership
Agreement of East West Resort Development, L.P. dated August 11, 1995.
"Partnership Security Agreement" means the Security Agreements
executed and delivered by the Partnership from time to time pursuant to this
Agreement granting Lender a security interest in Partnership's interest in the
Subpartnerships.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"Phased Project" means an Approved Project that is to be developed in
more than one phase.
"Project" means the land owned or acquired by a Subpartnership
together with the improvements to be constructed thereon, as contemplated by
the Plans.
"Project Advance Limit" means, with respect to each Phased Project the
amount designated as the Commitment for the Project in the Approved Project
Plan and the Approved Budget.
"Project Equity Advance" means the amount advanced hereunder by Lender
to Borrower (in one or more Advances) to enable it to make an equity
contribution to the Partnership.
"Project Lender" means the lender who issues the Project Loan
Commitment.
"Project Loan" means the loan contemplated by the Project Loan
Commitment, the proceeds of which will be used in connection with the
acquisition, construction and development of the Project described in such
Project Loan Commitment.
"Project Loan Commitment" means the commitment issued by the Project
Lender to Subpartnership to make the Project Loan to be secured by a first lien
on the Subpartnership's Project containing only such conditions to funding as
are reasonable and customary.
"Project Loan Documents" means the instruments and documents
evidencing, securing, pertaining to or governing a Project Loan.
"Project Mortgage" means a mortgage or deed of trust and security
agreement securing the payment of the Project Loan and evidencing a first lien
on the Project.
"Proposed Budget" means a budget or cost itemization included in each
Approved Project Plan specifying the cost by item of (a) the real estate which
will comprise a part of the Project, (b) all labor, materials and services
necessary for the construction of the Project in accordance with the Plans and
all Governmental Requirements, and (b) all other expenses anticipated which are
incident to the Project Loan and the construction of the Project. The Proposed
Budget shall include a calculation of the anticipated Total Equity for such
Project.
"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., as in effect from time to time.
"Special Mandatory Payments" means those mandatory payments which have
the following characteristics:
(a) the mandatory payment is attributable to the Borrower's
receipt of a Distribution from Partnership; and
(b) the Distribution from the Partnership to Borrower was
attributable to a distribution received by Partnership from a
Subpartnership due to the sale or transfer by such Subpartnership of
its Project or a portion of its Project.
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"Stated Maturity Date" means August 31, 2004.
"Subpartnership" means each limited liability company, whether now
existing or hereafter formed, in which Partnership has an equity interest.
"Subscriber" is defined in the Additional Funding Instruments to
include ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Lender.
"Tax Distribution" means each Distribution made to Borrower pursuant
to Section 4.2 of the Partnership Agreement.
"Total Equity" means, with respect to each Project, 80% of the
difference between the total costs set forth in the Approved Budget as the cost
of the Project and the amount of the Project Loan.
"UCC" means the Uniform Commercial Code as in effect, from time to
time, in the State of Texas.
"United States" or "U.S." means the United States of America, its
fifty States and the District of Columbia.
[INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BORROWER: CRESCENT DEVELOPMENT MANAGEMENT
CORP., a Delaware corporation
By:
-----------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
LENDER: CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.,
Sole general partner
By:
-----------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
17
EXHIBIT A
APPLICATION FOR ADVANCE
This Application for Advance is submitted by the undersigned to
Crescent Real Estate Equities Limited Partnership ("LENDER") pursuant to that
Credit Agreement dated as of August 11, 1995 between Lender and the undersigned
(the "CREDIT AGREEMENT"). Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Credit Agreement.
1. The undersigned hereby requests an Advance under the Credit Agreement
in the amount of: $
--------------------------
2. The undersigned hereby warrants and represents the following to
Lender:
A. The Advance is being requested in connection with the following
Project (the "APPLICABLE PROJECT"):
-----------------------------------
B. If the Applicable Project is a Phased Project, the Project
Advance Limit for the Applicable Project is: $
-------------------
C. If the Applicable Project is not a Phased Project, the Total
Equity for the Applicable Project is: $
---------------------
D. Lender has previously made Advances with respect to the
Applicable Project in the aggregate amount of: $
-----------------
E. Both before and after giving effect to the Advance which is
requested hereby, the warranties and representations set forth in
Article VI of the Credit Agreement are true and correct with the
same effect as if made on the date hereof.
CRESCENT DEVELOPMENT MANAGEMENT CORP.
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Exhibit A- Page 17
18
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of April 15, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Lender") and CRESCENT DEVELOPMENT MANAGEMENT
CORP., a Delaware corporation (the "Borrower") .
RECITALS
WHEREAS, the Borrower and the Lender entered into that Credit
Agreement dated as of August 11, 1995 (the "Credit Agreement"); defined terms
used herein but not herein defined have the meanings ascribed to those terms in
the Credit Agreement; and
WHEREAS, under the Credit Agreement the Borrower has borrowed funds in
an aggregate principal amount of $________________ for the purposes permitted
under Section 4.3 of the Agreement, including primarily the making of capital
contributions to the Partnership; and
WHEREAS, the Borrower desires contemporaneously herewith to enter into
an amendment to the Partnership Agreement pursuant to which the Borrower's
obligation to make additional capital contributions to the Partnership will
increase; and to partially enable it to enter into and subsequently satisfy
that obligation, the Borrower has requested that Lender agree to increase the
Commitment Amount by Eight Million Dollars ($8,000,000); and
WHEREAS, the Lender is willing, on the terms and subject to the
conditions set forth in the Credit Agreement as amended by this Amendment, to
modify and increase the Commitment Amount and to make the Loan in a maximum
aggregate principal amount at any one time outstanding not to exceed
$28,166,666, from time to time prior to the Commitment Termination Date; and
WHEREAS, except as expressly amended by this Amendment or other
instruments executed pursuant hereto, the Loan Documents shall remain in full
force and effect in accordance with their respective terms;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment of Article II (Commitments, Advance Procedures and
Notes). Article II of the Credit Agreement is amended and restated in its
entirety as follows:
"ARTICLE II
COMMITMENTS, ADVANCE PROCEDURES AND NOTES
SECTION 2.1 Commitment. On the terms and subject to the conditions of
this Agreement (including Article V), Lender agrees, from the date hereof to
the Commitment Termination Date, to make advances under the Loan to the
Borrower up to an aggregate outstanding principal amount of Twenty Eight
Million One Hundred Sixty-Six Thousand Six
19
Hundred Sixty-Six and No/100 Dollars ($28,166,666) (the "Commitment Amount")
pursuant to Section 2.2. Prior to the available Commitment Termination Date,
the Borrower may repay and reborrow up to the full amount of the Commitment
Amount in accordance with the terms hereof. The Lender shall not make any
advances after the Commitment Termination Date. Lender shall not be required to
make any advance under this Loan if, after giving effect thereto, (a) the
aggregate principal amount of all Advances made would exceed the Commitment
Amount or (b) with respect to an Approved Project, the aggregate Project Equity
Advance then outstanding with respect to such Project would exceed the Project
Advance Limit for such Project or (c) with respect to any Project, the
aggregate Project Equity Advance made with respect to such Project (whether or
not all or any portion of such Project Equity Advance remains outstanding)
would exceed the Total Equity for such Project. Notwithstanding anything in
this Agreement to the contrary, (i) Lender shall not be obligated to advance
additional funds with respect to a Project if a default (after notice and
expiration of cure periods) shall occur by a Subpartnership under the Project
Loan Documents, (ii) Lender shall not be obligated to advance additional funds
in excess of the aggregate Commitments pursuant to Approved Project Plans if
there is an Incapacity of ▇▇▇▇▇▇▇▇ (as defined in the Partnership Agreement),
(iii) Lender shall not be obligated to advance additional funds if there is an
Event of Default (as defined in the Partnership Agreement) that occurs under
the Partnership Agreement and that remains uncured and (iv) Lender shall not be
obligated to advance more than 20% of the Commitment with respect to a Project
until the earlier of that point in time when (A) the Subpartnership with
respect to such Project has entered into a binding contract for the purchase of
real property in connection with the Project or (B) a Project Loan Commitment
has been received from a Project Lender with respect to the Project.
"SECTION 2.2 Advance Procedure. Prior to the Commitment Termination
Date, Borrower may from time to time request that an Advance be made. Each
Advance following the Initial Advance shall be in an amount which is equal to
the lesser of (a) the amount of the Commitment Amount not outstanding, or (b)
the allowable Project Equity Advance for the applicable Project. The request
shall be made by delivering a Application for Advance to the Lender not less
than three (3) Business Days prior to the date upon which such Advance is to be
made and, if all such conditions precedent to such Advance have been satisfied,
Lender shall make such Advance directly to the Borrower by wire transfer to the
accounts the Borrower shall have specified in its Application for Advance.
SECTION 2.3 Note. The Loan shall be evidenced by a single promissory
note (the "Note") payable to the order of Lender in the maximum principal
amount of Twenty-Eight Million One Hundred Sixty-Six Thousand Six Hundred
Sixty-Six and No/100 Dollars ($28,166,666), which modifies, restates, replaces
and substitutes for that Note dated August 11, 1995, made by Borrower in favor
of Lender."
2. Amendment of Section 3.1.2 (Mandatory Payments). Section 3.1.2 of
the Credit Agreement is amended by deleting therefrom the following sentences:
"Each mandatory payment made hereunder which is attributable to a Distribution
shall be accompanied by a certificate from the Borrower to the Lender which
designates whether the mandatory payment is a Special Mandatory Payment. If
Borrower fails to provide such a certificate, Lender shall designate whether
the mandatory payment is a Special Mandatory Payment and such determination
shall be conclusive."
20
3. Amendment of Section 4.3 (Use of Proceeds). Section 4.3(b) of the
Credit Agreement is amended and restated in its entirety as follows:
"(b) each other advance (other than the Initial Advance) shall be used
by Borrower solely to make capital contributions to the Partnership, in an
amount which does not exceed the Project Equity Advance for a Project;
provided, however, that none of the proceeds from advances requested or made
subsequent to April 14, 1997, may be used by Borrower to make capital
contributions to the Partnership for Projects Approved prior to that date; and
provided further, however, that proceeds from any advance made during any
rolling three year period may be used by Borrower only to make capital
contributions to the Partnership for Approved Projects for which capital
contributions have not been previously made by Borrower during the three year
period ending on the date of such advance."
4. Amendment of Section 7.1.7 (Additional Funding Instruments).
Section 7.1.7 of the Credit Agreement is amended by adding at the end thereof
the following:
"Borrower will, through its Board of Directors, make an Assessment
Determination at that point in time when the aggregate of the accrued but
unpaid interest and the unpaid principal balance of the Loan first equals
Twenty Million and No/100 Dollars ($20,000,000) or would exceed such amount if
a requested Advance was made. In such event, the Board of Directors of Borrower
shall make written demand upon each Subscriber to contribute to Borrower cash
in an amount equal to the product realized by multiplying (i) One Million and
No/100 Dollars ($1,000,000) by (ii) a fraction, the numerator of which is the
number of shares of common stock of Borrower owned by Subscriber as of the date
of the Assessment Determination and the denominator of which is the number of
outstanding shares of common stock of Borrower as of the date of the Assessment
Determination ("Third Equity Shortfall Share"). Notwithstanding anything to the
contrary contained in this Agreement, no additional Advance will be made to
Borrower pursuant to this Agreement which would increase the aggregate unpaid
principal and interest on the Loan above Twenty Million and No/100 Dollars
($20,000,000) unless and until each Subscriber has contributed cash to Borrower
in an amount equal to such Subscriber's Third Equity Shortfall Share. Borrower
will, through its Board of Directors, make an Assessment Determination at that
point in time when the aggregate of the accrued but unpaid interest and the
unpaid principal balance of the Loan first equals Twenty-Four Million and
No/100 Dollars ($24,000,000) or would exceed such amount if a requested Advance
was made. In such event, the Board of Directors of Borrower shall make written
demand upon each Subscriber to contribute to Borrower cash in an amount equal
to the product realized by multiplying (i) One Million and No/100 Dollars
($1,000,000) by (ii) a fraction, the numerator of which is the number of shares
of common stock of Borrower owned by Subscriber as of the date of the
Assessment Determination and the denominator of which is the number of
outstanding shares of common stock of Borrower as of the date of the Assessment
Determination ("Fourth Equity Shortfall Share"). Notwithstanding anything to
the contrary contained in this Agreement, no additional Advance will be made to
Borrower pursuant to this Agreement which would increase the aggregate unpaid
principal and interest on the Loan above Twenty-Four Million and No/100 Dollars
($24,000,000) unless and until each Subscriber has contributed cash to Borrower
in an amount equal to such Subscriber's Fourth Equity Shortfall Share."
21
5. Amendment of Article IV (Definitions). The definitions of each of
the following terms is amended and restated as follows:
"Additional Funding Instruments" means the Additional Funding
Instruments executed by ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Lender on
August 11, 1995 and as of April 15, 1997.
"Commitment Termination Date" means the earlier of (i) the occurrence
of an Event of Default or (ii) April 15, 2000.
"Loan Document" means this Agreement, the Note, the Partnership
Security Agreement and all other documents evidencing, securing or governing
the Loan, as such documents may be amended, renewed, extended, restated or
supplemented from time to time.
"Note" means the Line of Credit Note of the Borrower delivered to a
Lender pursuant to this Agreement and any note subsequently given in exchange,
substitution, modification, renewal or extension therefor.
"Partnership Agreement" means that certain Limited Partnership
Agreement of East West Resort Development, L.P. dated August 11, 1995, as from
time to time amended.
6. Payment of Costs and Expenses. The Borrower agrees to pay on demand
all reasonable expenses of the Lender (including the reasonable fees and
out-of-pocket expenses of counsel to the Lender and of local counsel, if any,
who may be retained by counsel to the Lender) in connection with this Amendment
and the transactions contemplated hereby.
7. Execution in Counterparts, Effectiveness, etc. This Amendment may
be executed by the parties hereto in several counterparts, each of which shall
be an original and all of which shall constitute together but one and the same
agreement. This Amendment, together with each other Loan Document executed in
connection with this Amendment, shall become effective when counterparts hereof
executed on behalf of the Borrower and Lender (or notice thereof satisfactory
to the Lender) shall have been received by the Lender and notice thereof shall
have been given by the Lender to the Borrower.
8. Governing Law: Entire Agreement. THIS AMENDMENT, THE NOTE GIVEN IN
CONNECTION HEREWITH, AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT
REGARD FOR CONFLICT OF LAWS PRINCIPLES. Except as otherwise provided herein,
this Amendment, the Note given in replacement of that promissory note made
August 11, 1995, and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.
9. REIT Compliance. Borrower acknowledges that Lender's affiliate,
Crescent Real Estate Equities Company ("Crescent"), is a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "Code").
Borrower agrees that it will not knowingly or intentionally take or omit to
take any action which Borrower knows would or could result in Crescent being
disqualified from treatment as a real estate investment trust under the Code.
22
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BORROWER: CRESCENT DEVELOPMENT MANAGEMENT
CORP., a Delaware corporation
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
LENDER: CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.,
Sole general partner
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
23
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of May 8, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES LIMITED PARTNERSHIP, a
Delaware limited partnership (the "Lender") and CRESCENT DEVELOPMENT MANAGEMENT
CORP., a Delaware corporation (the "Borrower") .
RECITALS
WHEREAS, the Borrower and the Lender entered into that Credit
Agreement dated as of August 11, 1995, and that First Amendment to Credit
Agreement dated as of April 15, 1997 (the "Credit Agreement"); defined terms
used herein but not herein defined have the meanings ascribed to those terms in
the Credit Agreement; and
WHEREAS, under the Credit Agreement the Borrower has borrowed funds in
an aggregate principal amount of $41,212,547.12 for the purposes permitted
under Section 4.3 of the Agreement, including primarily the making of capital
contributions to the Partnership; and
WHEREAS, the Lender effective February 19, 1996, advanced to the
Borrower a loan in the amount of $3,100,000 (the "East West Resorts Term Loan")
for the purpose of enabling the Borrower to acquire a 50% member's interest in
East West Resorts, LLC, a Delaware limited liability company ("East West
Resorts"); and the Lender pursuant to that Credit Agreement dated as of January
1, 1998 (the "East West Resorts Credit Agreement") extended the Borrower a line
of credit loan (the "East West Resorts Credit Loan") in a maximum aggregate
principal amount at any one time outstanding not to exceed $22,920,000 for the
purpose of enabling the Borrower to make capital contributions to East West
Resorts pursuant to that Second Amended and Restated Operating Agreement of
East West Resorts, and the Borrower has borrowed under the East West Resorts
Credit Loan funds in an aggregate principal amount of $___________ ; and the
East West Resorts Term Loan and the East West Credit Loan together are called
the "East West Loans";
WHEREAS, the Borrower desires contemporaneously herewith to enter into
an amendment to the Partnership Agreement pursuant to which the Borrower's
obligation to make additional capital contributions to the Partnership will
increase; and to partially enable it to enter into and subsequently satisfy
that obligation, the Borrower has requested that Lender agree to increase the
Commitment Amount by Twelve Million Dollars ($12,000,000); and
WHEREAS, the Lender is willing, on the terms and subject to the
conditions set forth in the Credit Agreement as amended by this Amendment
(including but not limited to cross-collateralizing and cross-defaulting the
East West Loans with the Loan), to modify and increase the Commitment Amount
and to make the Loan in a maximum aggregate principal amount at any one time
outstanding not to exceed $40,166,666, from time to time prior to the
Commitment Termination Date; and
24
WHEREAS, except as expressly amended by this Amendment or other
instruments executed pursuant hereto, the Loan Documents shall remain in full
force and effect in accordance with their respective terms;
NOW, THEREFORE, the parties hereto agree as follows:
1. Amendment of Article II (Commitments, Advance Procedures and
Notes). Article II of the Credit Agreement is amended and restated in its
entirety as follows:
ARTICLE I
COMMITMENTS, ADVANCE PROCEDURES AND NOTES
"SECTION 2.1 Commitment. On the terms and subject to the conditions of
this Agreement (including Article V), Lender agrees, from the date hereof to
the Commitment Termination Date, to make advances under the Loan to the
Borrower up to an aggregate outstanding principal amount of Forty Million One
Hundred Sixty-Six Thousand Six Hundred Sixty-Six and No/100 Dollars
($40,166,666) (the "Commitment Amount") pursuant to Section 2.2. Prior to the
available Commitment Termination Date, the Borrower may repay and reborrow up
to the full amount of the Commitment Amount in accordance with the terms
hereof. The Lender shall not make any advances after the Commitment Termination
Date. Lender shall not be required to make any advance under this Loan if,
after giving effect thereto, (a) the aggregate principal amount of all Advances
made would exceed the Commitment Amount or (b) with respect to an Approved
Project, the aggregate Project Equity Advance then outstanding with respect to
such Project would exceed the Project Advance Limit for such Project or (c)
with respect to any Project, the aggregate Project Equity Advance made with
respect to such Project (whether or not all or any portion of such Project
Equity Advance remains outstanding) would exceed the Total Equity for such
Project. Notwithstanding anything in this Agreement to the contrary, (i) Lender
shall not be obligated to advance additional funds with respect to a Project if
a default (after notice and expiration of cure periods) shall occur by a
Subpartnership under the Project Loan Documents, (ii) Lender shall not be
obligated to advance additional funds in excess of the aggregate Commitments
pursuant to Approved Project Plans if there is an Incapacity of ▇▇▇▇▇▇▇▇ (as
defined in the Partnership Agreement), (iii) Lender shall not be obligated to
advance additional funds if there is an Event of Default (as defined in the
Partnership Agreement) that occurs under the Partnership Agreement and that
remains uncured and (iv) Lender shall not be obligated to advance more than 20%
of the Commitment with respect to a Project until the earlier of that point in
time when (A) the Subpartnership with respect to such Project has entered into
a binding contract for the purchase of real property in connection with the
Project or (B) a Project Loan Commitment has been received from a Project
Lender with respect to the Project.
"SECTION 2.2 Advance Procedure. Prior to the Commitment Termination
Date, Borrower may from time to time request that an Advance be made. Each
Advance following the Initial Advance shall be in an amount which is equal to
the lesser of (a) the amount of the Commitment Amount not outstanding, or (b)
the allowable Project Equity Advance for the applicable Project. The request
shall be made by delivering a Application for Advance to the
25
Lender not less than three (3) Business Days prior to the date upon which such
Advance is to be made and, if all such conditions precedent to such Advance
have been satisfied, Lender shall make such Advance directly to the Borrower by
wire transfer to the accounts the Borrower shall have specified in its
Application for Advance.
"SECTION 2.3 Note. The Loan shall be evidenced by a single promissory
note (the "Note") payable to the order of Lender in the maximum principal
amount of Forty Million One Hundred Sixty-Six Thousand Six Hundred Sixty-Six
and No/100 Dollars ($40,166,666), which modifies, restates, replaces and
substitutes for that Note dated April 15, 1997, made by Borrower in favor of
Lender, which itself modified, restated, replaced and substituted for that Note
dated August 11, 1995."
2. Amendment of Section 7.1.7 (Additional Funding Instruments).
Section 7.1.7 of the Credit Agreement is amended by adding at the end thereof
the following:
"Borrower will, through its Board of Directors, make an
Assessment Determination at that point in time when the aggregate of the
accrued but unpaid interest and the unpaid principal balance of the Loan first
equals Twenty-Eight Million and No/100 Dollars ($28,000,000) or would exceed
such amount if a requested Advance was made. In such event, the Board of
Directors of Borrower shall make written demand upon each Subscriber to
contribute to Borrower cash in an amount equal to the product realized by
multiplying (i) One Million and No/100 Dollars ($1,000,000) by (ii) a fraction,
the numerator of which is the number of shares of common stock of Borrower
owned by Subscriber as of the date of the Assessment Determination and the
denominator of which is the number of outstanding shares of common stock of
Borrower as of the date of the Assessment Determination ("Fifth Equity
Shortfall Share"). Notwithstanding anything to the contrary contained in this
Agreement, no additional Advance will be made to Borrower pursuant to this
Agreement which would increase the aggregate unpaid principal and interest on
the Loan above Twenty-Eight Million and No/100 Dollars ($28,000,000) unless and
until each Subscriber has contributed cash to Borrower in an amount equal to
such Subscriber's Fifth Equity Shortfall Share. Borrower will, through its
Board of Directors, make an Assessment Determination at that point in time when
the aggregate of the accrued but unpaid interest and the unpaid principal
balance of the Loan first equals Thirty-Two Million and No/100 Dollars
($32,000,000) or would exceed such amount if a requested Advance was made. In
such event, the Board of Directors of Borrower shall make written demand upon
each Subscriber to contribute to Borrower cash in an amount equal to the
product realized by multiplying (i) One Million and No/100 Dollars ($1,000,000)
by (ii) a fraction, the numerator of which is the number of shares of common
stock of Borrower owned by Subscriber as of the date of the Assessment
Determination and the denominator of which is the number of outstanding shares
of common stock of Borrower as of the date of the Assessment Determination
("Sixth Equity Shortfall Share"). Notwithstanding anything to the contrary
contained in this Agreement, no additional Advance will be made to Borrower
pursuant to this Agreement which would increase the aggregate unpaid principal
and interest on the Loan above Thirty-Two Million and No/100 Dollars
($32,000,000) unless and until each Subscriber has contributed cash to Borrower
in an amount equal to such Subscriber's Sixth Equity Shortfall Share. Borrower
will, through its
26
Board of Directors, make an Assessment Determination at that point in time when
the aggregate of the accrued but unpaid interest and the unpaid principal
balance of the Loan first equals Thirty-Six Million and No/100 Dollars
($36,000,000) or would exceed such amount if a requested Advance was made. In
such event, the Board of Directors of Borrower shall make written demand upon
each Subscriber to contribute to Borrower cash in an amount equal to the
product realized by multiplying (i) One Million and No/100 Dollars ($1,000,000)
by (ii) a fraction, the numerator of which is the number of shares of common
stock of Borrower owned by Subscriber as of the date of the Assessment
Determination and the denominator of which is the number of outstanding shares
of common stock of Borrower as of the date of the Assessment Determination
("Seventh Equity Shortfall Share"). Notwithstanding anything to the contrary
contained in this Agreement, no additional Advance will be made to Borrower
pursuant to this Agreement which would increase the aggregate unpaid principal
and interest on the Loan above Thirty-Six Million and No/100 Dollars
($36,000,000) unless and until each Subscriber has contributed cash to Borrower
in an amount equal to such Subscriber's Seventh Equity Shortfall Share."
3. Amendment of Article IV (Definitions). The definition of the
following term is amended and restated as follows:
"Additional Funding Instruments" means the Additional Funding
Instruments executed by ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Lender on
August 11, 1995, as of April 15, 1997, and as of May 8, 1998.
The following definitions are added to Article IV:
"East West Resorts" means East West Resorts, LLC, a Delaware limited
liability company, and its successor or successors by merger, consolidation or
any other business combination as a result of which, by operation of law or by
agreement, such successor or successors assume the obligations or liabilities
of East West Resorts, LLC under any or all East West Resorts Loans.
"East West Resorts Term Loan" means that term loan, and related
promissory note and Security Agreement made by Borrower, from Lender to
Borrower made February 29, 1996, and all extensions, modifications, amendments
and renewals thereof.
"East West Resorts Credit Loan" means that line of credit loan, and
related Credit Agreement, promissory note, and security agreement, from Lender
to Borrower made effective January 1, 1998, and all extensions, modifications,
amendments, and renewals thereof.
"East West Loans" means the East West Resorts Term Loan and East West
Resorts Credit Loan.
"East West Resorts Loan Documents" means all documents evidencing,
securing or governing either of the East West Loans, including but not limited
to that Promissory Note dated February 29, 1996 in the principal amount of
$3,100,000, that Security Agreement dated
27
February 29, 1996, that Credit Agreement dated as of January 1, 1998,
and all "Loan Documents" as defined therein, and all extensions, modifications,
amendments, and renewals thereof.
4. Amendment of Article VIII (Events of Default). Section 7.1.7 of the
Credit Agreement is amended and restated in its entirety as follows:
"ARTICLE VIII
EVENTS OF DEFAULT
"SECTION 8.1 Listing of Events of Default. Each of the following
events or occurrences described in this Section 8.1 shall constitute an "Event
of Default." Upon the occurrence of an Event of Default (or any event or state
of facts which, with the giving of notice or the passage of time or both, would
constitute an Event of Default), the Borrower shall give notice thereof to the
Lender.
"SECTION 8.1.1 Non-Payment of Obligations. The Borrower shall
default in the payment when due of any principal of the Loan, the East West
Resorts Term Loan or the East West Resorts Credit Loan, or of any interest in
respect of the Loan, the East West Resorts Term Loan, or the East West Resorts
Credit Loan.
"SECTION 8.1.2 Breach of Warranty. Any representation or
warranty made or deemed to be made hereunder or in any other Loan Document, any
East West Resorts Loan Document, or any other writing or certificate furnished
by or on behalf of the Borrower to the Lender for the purposes of or in
connection with this Agreement or either of the East West Resorts Loans, or any
such other Loan Document or any other East West Resorts Loan Document, is or
shall be incorrect when made in any material respect.
"SECTION 8.1.3 Non-Performance of Other Covenants and
Obligations. There shall be a default in the due performance and observance of
any other agreement contained herein or in any other Loan Document or any East
West Resorts Loan Document executed by Borrower, and such default shall
continue unremedied for a period of 30 days after notice thereof shall have
been given to the Borrower by the Lender.
"SECTION 8.1.4 Bankruptcy, Insolvency, etc. The Borrower,
Partnership, any of its Subpartnerships, or East West Resorts shall
(a) become insolvent or generally fail to pay, or
admit in writing its inability or unwillingness to pay, debts
as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other
custodian for the Borrower, Partnership or any Subpartnership
or East West Resorts or any property of any thereof, or make
a general assignment for the benefit of creditors;
(c) absent such application, consent or acquiescence
permit or suffer to
28
exist the appointment of a trustee, receiver, sequestrator or
other custodian for the Borrower, Partnership, any
Subpartnership or East West Resorts or for a substantial part
of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged
within 60 days, provided that the Borrower, Partnership and
each Subpartnership and East West Resorts hereby expressly
authorize the Lender to appear in any court conducting any
relevant proceeding during such 60-day period to preserve,
protect and defend their rights under the Loan Documents and
the East West Resort Loan Documents;
(d) permit or suffer to exist the commencement of any
(x) bankruptcy, reorganization, debt arrangement or other
case or proceeding under any bankruptcy or insolvency law, or
(y) any dissolution, winding up or liquidation proceeding, in
respect of the Borrower, Partnership, any Subpartnership or
East West Resorts, and, if any such case or proceeding is not
commenced by the Borrower, Partnership, any Subpartnership or
East West Resorts, such case or proceeding shall be consented
to or acquiesced in by the Borrower, Partnership, such
Subpartnership or East West Resorts or shall result in the
entry of an order for relief or, in the event of any case or
proceeding described in clause (x), shall remain for 120 days
undismissed, provided that the Borrower, Partnership, each
Subpartnership and East West Resorts hereby expressly
authorizes the Lender and each Lender to appear in any court
conducting any such case or proceeding during such 120-day
period to preserve, protect and defend their rights under the
Loan Documents or the East West Loan Documents; or
(e) take any partnership, limited liability company
or corporate action authorizing, or with intent to further
any of the foregoing.
"SECTION 8.2 Action if Bankruptcy. If any Event of Default described
in clauses (a) through (e) of Section 8.1.4 shall occur with respect to the
Borrower, Partnership, any of its Subpartnerships or East West Resorts, the
Commitment (if not theretofore terminated) to make Advances shall automatically
terminate and the outstanding principal amount of the Loan shall automatically
be and become immediately due and payable, without notice or demand.
"SECTION 8.3 Action if Payment Event of Default under East West Loan.
If any Event of Default described in Section 8.1.1 shall occur due to
Borrower's default in the payment when due of any principal or interest in
respect of the East West Resorts Term Loan or the East West Resorts Credit Loan
(but not for any other reason), and Borrower fails to pay such principal or
interest in full within 30 days after the due date thereof, then the Lender
shall by notice to the Borrower declare all or any portion of the outstanding
principal amount of the Loan and other obligations to be due and payable and
the Commitment (if not theretofore terminated) to be terminated, whereupon the
full unpaid amount of the Loan shall be and become immediately due and payable,
without further notice, demand or presentment and the Commitment shall
terminate.
"SECTION 8.4 Action if Other Event of Default under East West Loan. If
any Event of
29
Default (other than any Event of Default described in Section 8.2 or Section
8.3) shall occur with respect to any East West Resorts Loan Document (but not
for any other reason) for any reason, whether voluntary or involuntary, and (a)
be continuing for a period of 90 days if an Event of Default under Section
8.1.2 or (b) ,be continuing for a period of 90 days after notice thereof shall
have been given to Borrower by Lender if an Event of Default under Section
8.1.3, then the Lender shall by notice to the Borrower declare all or any
portion of the outstanding principal amount of the Loan and other obligations
to be due and payable and the Commitment (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of the Loan shall be and become
immediately due and payable, without further notice, demand or presentment and
the Commitment shall terminate.
"SECTION 8.5 Action if Other Event of Default. If any Event of Default
(other than any Event of Default described in Section 8.2, Section 8.3, or
Section 8.4) shall occur for any reason, whether voluntary or involuntary, and
be continuing, the Lender shall by notice to the Borrower declare all or any
portion of the outstanding principal amount of the Loan and other obligations
to be due and payable and the Commitment (if not theretofore terminated) to be
terminated, whereupon the full unpaid amount of the Loan shall be and become
immediately due and payable, without further notice, demand or presentment and
the Commitment shall terminate.
"SECTION 8.6 Rescission of Event of Default. If an Event of Default
occurs hereunder and such Event of Default would not have occurred but for the
default by a Subpartnership (for purposes of this Section, the "Defaulting
Subpartnership") under Section 8.1.4 hereof, (such Events of Default being
described in this Section as "Specified Events of Default") then Lender shall
be required to rescind and annul the Event of Default if and only if, within
twenty (20) Business Days following such Specified Event of Default:
(a) all Defaults and Events of Default, other than the
Specified Events of Default, are remedied or waived to Lender's sole
satisfaction; and
(b) the partners of Partnership have approved of a revised
business plan with respect to the Project owned by the Defaulting
Subpartnership, the Borrower, on the basis of such revised business
plan, has submitted to Lender a revised Annual Business Plan and
Lender, in its reasonable discretion, has Approved such Annual
Business Plan.
No action taken by Lender pursuant to this provision shall affect any
subsequent Default or Event of Default with respect to the Borrower or impair
any right or remedy consequent thereon."
5. Payment of Costs and Expenses. The Borrower agrees to pay on demand
all reasonable expenses of the Lender (including the reasonable fees and
out-of-pocket expenses of counsel to the Lender and of local counsel, if any,
who may be retained by counsel to the Lender) in connection with this Amendment
and the transactions contemplated hereby.
6. Execution in Counterparts, Effectiveness, etc. This Amendment may
be executed by the parties hereto in several counterparts, each of which shall
be an original and all of which shall
30
constitute together but one and the same agreement. This Amendment, together
with each other Loan Document executed in connection with this Amendment, shall
become effective when counterparts hereof executed on behalf of the Borrower
and Lender (or notice thereof satisfactory to the Lender) shall have been
received by the Lender and notice thereof shall have been given by the Lender
to the Borrower.
7. Governing Law: Entire Agreement. THIS AMENDMENT, THE NOTE GIVEN IN
CONNECTION HEREWITH, AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT
REGARD FOR CONFLICT OF LAWS PRINCIPLES. Except as otherwise provided herein,
this Amendment, the Note given in replacement of that promissory note made as
of April 15, 1997, and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.
8. REIT Compliance. Borrower acknowledges that Lender's affiliate,
Crescent Real Estate Equities Company ("Crescent"), is a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "Code").
Borrower agrees that it will not knowingly or intentionally take or omit to
take any action which Borrower knows would or could result in Crescent being
disqualified from treatment as a real estate investment trust under the Code.
31
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective officers thereunto duly authorized as of the
day and year first above written.
BORROWER: CRESCENT DEVELOPMENT MANAGEMENT
CORP., a Delaware corporation
By:
----------------------------
Name:
---------------------------
Title:
--------------------------
LENDER: CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Crescent Real Estate Equities,
Ltd., Sole general partner
By:
----------------------------
Name:
---------------------------
Title:
--------------------------
32
FIRST AMENDED AND RESTATED SECURITY AGREEMENT
("Restated Security Agreement")
THIS FIRST AMENDED AND RESTATED SECURITY AGREEMENT ("Restated Security
Agreement") dated September 27, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Equities
Limited Partnership, as Secured Party, and Crescent Development Management
Corp., as Debtor.
RECITALS
Secured Party and Debtor entered into that $20,166,666 Credit
Agreement dated as of August 11, 1995 (the "Credit Agreement"), in connection
with which Debtor made and delivered to Secured Party that Line of Credit Note
in the principal sum of $20,166,666 payable to Secured Party (the "Note") and
Debtor and Secured Party entered into that Security Agreement dated August 11,
1995 (the"Original Security Agreement") pursuant to which Debtor granted
Secured Party security interests in, among other collateral, the rights and
interests of Debtor as the limited partner of East West Resort Development, L.
P. ("Subpartnership").
Debtor wishes to borrow monies under the Credit Agreement for the
purpose of funding its contribution as a limited partner of East West Resort
Development II, L. P., a Delaware limited partnership ("Subpartnership II");
however, under Section 4.3(b) of the Credit Agreement, advances under the
Credit Agreement may be used solely to make capital contributions to the
Subpartnership.
Debtor has requested from Secured Party a one-time waiver of that
provision limiting use of loan proceeds, to allow Debtor to apply loan proceeds
to make a single capital contribution at this time to Subpartnership II in
exchange for a limited partnership interest in Subpartnership II.
Secured Party is willing to grant Debtor's request and
contemporaneously herewith Debtor and Secured Party, in accordance with Section
9.1 of the Credit Agreement, have executed a separate written instrument
effecting such waiver subject to the condition that Debtor pledge to Secured
Party the limited partnership interest in Subpartnership II which Debtor will
acquire with such proceeds and, in connection therewith, amend and restate the
Security Agreement to include such additional assets of Debtor within the
Collateral securing payment of Debtor's Obligations (as defined in the Original
Security Agreement).
Therefore, Debtor and Secured Party mutually wish to amend and restate
the Original Security Agreement to reflect such matters, it being intended and
understood that the pledges and security interests created by the Original
Security Agreement are not and have not been extinguished, released, discharged
or terminated, but only modified, amended and restated as set forth in this
Restated Security Agreement.
NOW, THEREFORE, in consideration of the recitals, covenants and
agreements in this Restated Security Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged and
confessed, the Original Security Agreement is hereby amended and restated in
its entirety as follows:
33
A. PARTIES
1. Secured Party: CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
2. Debtor: CRESCENT DEVELOPMENT MANAGEMENT CORP.
▇/▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
B. AGREEMENT
1. Security Interest. Subject to the applicable terms of this Restated
Security Agreement, Debtor has granted, and hereby does grant, to Secured Party
a security interest in the Collateral (hereinafter defined) to secure the
payment of the Obligations (hereinafter defined).
C. OBLIGATIONS
1. Description of Obligations. The following obligations
("Obligations") are secured by this Security Agreement:
a. The debt, obligations, liabilities and agreements of
Debtor under (i) that Line of Credit Note in the principal sum of
$20,166,666.00 executed by Debtor as of August 11, 1995, bearing
interest and being payable to the order of Secured Party as therein
provided (the "Note"), (ii) that Credit Agreement executed by Debtor
and Secured Party as of August 11, 1995, as subsequently amended and
modified ("Credit Agreement"), (iii) all other documents evidencing,
governing, securing or otherwise pertaining to the indebtedness
evidenced by the Note (the Note, Credit Agreement and all other such
documents being called "Loan Documents"), and (iv) all renewals,
extensions, modifications or rearrangements of the foregoing.
b. All costs incurred by Secured Party to obtain, preserve,
perfect and enforce this Restated Security Agreement and collect the
Obligations, and maintain, preserve, collect and enforce the
Collateral (hereinafter defined), including but not limited to
reasonable attorneys' fees and legal expenses and expenses of sale.
c. Interest on the above amounts at the Default Rate as
defined in the Note.
d. All debt, obligations and liabilities of Debtor to Secured
Party of the kinds described in this Item C., now existing or
hereafter arising.
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D. COLLATERAL
1. Description of the Collateral. Debtor has assigned and granted to
Secured Party, and hereby does assign and grant to Secured Party, security
interests in the following, whether now existing or hereafter arising (the
"Collateral"):
a. All of the rights and interests of Debtor as the limited
partner of East West Resort Development, L.P., a Delaware limited
partnership ("Subpartnership"), including, without limitation,
Debtor's rights as a partner to receive distributions of any sale,
exchange, refinancing or other disposition of property owned by the
Subpartnership under the Limited Partnership Agreement entered into
effective as of August 11, 1995 (the "Partnership Agreement") and all
other profits, income, and distributions, whether in cash or in kind,
owing to Debtor under the Partnership Agreement.
b. All of the rights and interests of Debtor as the limited
partner of East West Resort Development II, L.P,. a Delaware limited
partnership ("Subpartnership II"), including, without limitation,
Debtor's rights as a partner to receive distributions of any sale,
exchange, refinancing or other disposition of property owned by the
Subpartnership under the Limited Partnership Agreement entered into
effective as of September 26, 1996 (the "Subpartnership II Agreement")
and all other profits, income, and distributions, whether in cash or
in kind, owing to Debtor under the Subpartnership II Agreement.
c. All Partner Loans and Default Loans (as those terms are
defined in the Subpartnership II Agreement and [if applicable] the
Subpartnership II Agreement) now or hereafter owing to Debtor and all
security therefor.
d. All present and future rights and interests Debtor may
have or be or become entitled to in the real and personal property
(the "Collateral Property") now or hereafter owned by Subpartnership
or Subpartnership II.
e. All present and future proceeds, profits, combinations,
reclassification, improvements, and products of, accessions,
attachments, and other additions to, and substitutes and replacements
for, all or any part of the Collateral described herein.
f. All present and future accounts, contract rights, general
intangibles, chattel paper, documents, instruments, cash and noncash
Proceeds, and other rights arising from or by virtue of, or from the
voluntary or involuntary sale, lease, or other disposition of, or
collections with respect to, or insurance or condemnation proceeds
payable with respect to, or proceeds payable by virtue of warranty,
indemnity, guaranty, or other claims, causes and rights of action,
settlements thereof, judicial and arbitration judgments and awards
against any person with respect to, all or any part of the Collateral
or the Collateral Property described herein. As used herein, the term
"Proceeds" shall have the meaning assigned to it under the UCC and, to
the extent not otherwise included, shall include, but not be limited
to, (i) all income, revenues, fees, distributions, reimbursements and
payments from whatever source received by, or on behalf of Debtor, in
respect of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to Debtor from time to time in
connection with any casualty with respect to the Collateral
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Property or any of the Collateral (whether or not pursuant
to an insurance policy), or any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the
Collateral by any governmental authority, (iii) all claims of Debtor
for losses or damages arising out of or related to or for any breach
of any agreements, covenants, representations or warranties or any
default under any of the Collateral described herein, and (iv) any and
all other amounts from time, to time paid or payable to, or on behalf
of, Debtor under, or in connection with, any of the Collateral.
g. All present and future security for the payment to Debtor
of any of the Collateral described herein and goods which gave, or
will give, rise to any of such Collateral or are evidenced,
identified, or represented therein or thereby.
The description of Collateral contained in this paragraph shall not be
deemed to permit any action prohibited by this Restated Security Agreement or
by terms incorporated in this Restated Security Agreement. Portions of the
Collateral constitute accounts, contract rights, general intangibles, chattel
paper, documents or instruments, and all books and records of Debtor concerning
such Collateral are, and shall be, located at the offices of the Debtor
specified above.
E. DEBTOR'S WARRANTIES
Debtor represents, warrants, and covenants to Secured Party now and so
long as any Obligations secured hereby are outstanding as follows:
1. No financing statement covering any portion of the Collateral is on
file in any public office, except the financing statements relating to the
security interests created by the Original Security Agreement and this Restated
Security Agreement.
2. Debtor is the sole owner of the Collateral and each item
constituting the Collateral, free and clear of all liens except for the
security interests granted to Secured Party pursuant to the Original Security
Agreement and this Restated Security Agreement.
3. All actions necessary or desirable to perfect the Security Interest
in the Collateral in each state in which any portion of the Collateral is or
will be located have been, or will forthwith be, duly taken.
4. The Partnership Agreement and the Subpartnership II Agreement are
in full force and effect and, to the knowledge of Debtor, there exists no
material default thereunder, or event or condition which, with the passage of
time or the giving of notice, or both, would constitute a material default
thereunder.
5. The Partnership Agreements shall not be amended or modified in any
manner that would materially affect Debtor's interests thereunder, or in any
manner which would materially impair or adversely affect the Collateral, nor
shall Debtor consent to any such amendment without the prior written consent of
Secured Party.
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6. There is no condition, circumstance, event, agreement, document,
instrument, restriction, litigation or other proceeding and, to the best of
Debtor's knowledge, there is no threatened litigation or proceeding or basis
therefor, which could materially adversely affect the validity or priority of
the liens and security interests granted, or intended to be granted under the
Original Security Agreement or this Restated Security Agreement when executed,
delivered, recorded and filed as required thereunder or hereunder, or that
could materially adversely affect the ability of Debtor to perform its
obligations thereunder or hereunder, or which would constitute an Event of
Default.
7. Subpartnership, Subpartnership II and Debtor have fully complied
with all requirements imposed on them in connection with (a) the organization
and formation of Subpartnership and Subpartnership II, and (b) the sale,
distribution and offer of partnership interests in Subpartnership and
Subpartnership II.
F. DEBTOR'S COVENANTS
Debtor covenants to Secured Party and agrees with Secured Party as
follows:
1. Debtor shall promptly perform all of Debtor's agreements herein,
and any other agreements between Debtor and Secured Party.
2. Debtor shall defend the Collateral against all claims and demands
of all persons at any time claiming the same or any interest therein adverse to
Secured Party.
3. Debtor shall keep the Collateral free from liens and other security
interests (except liens for taxes not yet due), and shall not create or suffer
to exist any lien or security interest in the Collateral hereafter acquired
except for the security interests hereby granted. Debtor shall not file, or
permit to be filed, any financing statements or other security instruments,
covering the Collateral, unless by, or on behalf of, Secured Party in
connection with this Restated Security Agreement or to effectuate the
assignment to Debtor of the financing statements currently of record against
the Collateral.
4. Debtor shall pay all costs necessary to obtain, preserve, perfect,
defend and enforce the security interests hereby granted, collect the sums
owing under the Loan Documents, and preserve, defend, enforce, service and
collect the Collateral, including specifically, but without limitation, the
payment of taxes, assessments, reasonable attorneys' fees and legal expenses,
and expenses of sales. If Debtor shall have failed to pay such costs and
expenses within five (5) days after request by Secured Party, Secured Party
may, at its option, pay any such costs and expenses, and discharge encumbrances
on the Collateral. Debtor agrees to reimburse the Secured Party on demand for
any costs so incurred, and, until such reimbursement, the amount of any such
payment shall be a part of the Obligation.
5. Prior to or immediately following the occurrence thereof, Debtor
will notify the Secured Party of (i) any material adverse change occurring in
or to any of the Collateral, (ii) any change in Debtor's office address or
mailing address, (iii) any material change in any fact or circumstance
warranted or represented by Debtor in this Security Agreement or furnished to
the
37
Secured Party by Debtor, (iv) any Event of Default or (v) any notices,
communications, or correspondence to be or which have been delivered to Debtor
under the Operating Agreement and deliver to Secured Party copies thereof.
6. Debtor shall execute and deliver to Secured Party a financing
statement for filing to perfect the security interests hereunder and any other
papers furnished by Secured Party which are necessary in the judgment of
Secured Party to obtain, maintain and perfect the security interest hereunder
and to enable Secured Party to comply with any applicable federal or state law
in order to obtain or perfect Secured Party's interest in the Collateral.
Debtor shall have Subpartnership and Subpartnership II make appropriate entries
in their respective partnership records to reflect the existence of the
security interest granted hereby in the Collateral.
7. Debtor shall cause Subpartnership and Subpartnership II to comply
with all of the representations, warranties, covenants, agreements, indemnities
and terms contained in their respective Organizational Documents and all other
material agreements to which either is bound and enforce their respective
rights under all material agreements by which either is bound, in a timely
manner, consistent with prudent practices and all applicable laws, and also as
required by Secured Party.
8. Debtor shall fully perform all of Debtor's duties under and in
connection with each transaction to which the Collateral, or any part thereof,
relates, so that the amounts thereof shall actually become payable in their
entirety to Secured Party.
9. Debtor shall promptly notify Secured Party of any claim, action, or
proceeding affecting title to all or any of the Collateral or the security
interest and, at the request of Secured Party, appear in and defend, at
Debtor's expense, any such claim, action, demand or proceeding.
10. At Debtor's expense and upon Secured Party's request, after an
Event of Default, Debtor shall file or cause to be filed such applications and
take such other actions as Secured Party may request to obtain the consent or
approval of any governmental authority to Secured Party's rights hereunder,
including, without limitation, the right to sell all of the Collateral upon an
Event of Default without additional consent or approval from such governmental
authority (and, because Debtor agrees that Secured Party's remedies at law for
failure of Debtor to comply with this provision would be inadequate and that
such failure would not be adequately compensable in damages, Debtor agrees that
its covenants in this provision may be specifically enforced).
11. Upon demand by Secured Party, Debtor will deposit upon receipt all
checks, drafts, cash or other remittances on account or accounts or contracts
or received as proceeds of any other Collateral in a special bank account in a
bank of Secured Party's choice over which Secured Party alone shall have power
of withdrawal. The funds in said account shall be held by Secured Party as
security for the Obligation. Said proceeds shall be deposited in the form
received, except for the endorsement of Debtor where necessary to permit
collection of items, which endorsements Debtor agrees to make, but which
Secured Party is authorized to make on Debtor's behalf. Secured Party may from
time to time apply the whole or any part of the funds in such special account
against the Obligations. Any portion of said funds on deposit which Secured
Party elects not to apply to the Obligations may be paid by Secured Party to
Debtor.
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12. Debtor shall give Secured Party written notice of each office of
Debtor in which records of Debtor pertaining to accounts in the Collateral are
kept, and of any change of any office or location. Except as such notice is
given, all records of Debtor pertaining to the Collateral and to accounts are
and shall be kept in the location shown at the beginning hereof.
G. RIGHTS AND POWERS OF SECURED PARTY
1. Secured Party may in its discretion after an Event of Default but
only after prior written notice to Debtor, without liability to Debtor, obtain
from any person information regarding Debtor or Debtor's business, which
information any such person also may furnish without liability to Debtor;
endorse as Debtor's agent any instruments, documents or chattel paper in the
Collateral or representing proceeds of the Collateral; contact any account
debtors directly to verify information furnished by Debtor; take control of
proceeds; release the Collateral in its possession to any Debtor, temporarily
or otherwise; after default, take control of funds generated by the Collateral,
such as cash dividends, interest and proceeds or refunds from insurance, and
use same to reduce any part of the Obligations and exercise all other rights
which an owner of such collateral may exercise; after default, at any time
transfer any of the Collateral or evidence thereof into its own name or that of
its nominee; demand, collect, convert, redeem, receipt for, settle, compromise,
adjust, ▇▇▇ for, foreclose or realize upon the Collateral, in its own name or
in the name of Debtor, as Secured Party may determine. The foregoing rights and
powers of Secured Party will be in addition to, and not a limitation upon, any
rights and powers of Secured Party given by law, elsewhere in this Restated
Security Agreement, or otherwise.
2. Secured Party may while any Event of Default continues hereunder
present for conversion any instrument (including any investment security) in
the Collateral which is convertible into any other instrument or investment
security or a combination thereof with cash. But Secured Party shall not have
any duty to present for conversion any instrument in the Collateral unless it
shall have received from Debtor written instructions to that effect at a time
reasonably far in advance of the final conversion date to make such conversion
possible.
H. DEFAULT
1. Events of Default. The occurrence of a default under the Note, the
Credit Agreement or any document evidencing, governing, securing, guaranteeing,
indemnifying or otherwise pertaining to the Loan shall constitute an event of
default ("Event of Default") hereunder.
2. Remedies of Secured Party Upon Default. Should an Event of Default
occur and be continuing, Secured Party may, at its election, exercise any and
all rights and remedies available to a secured party under the UCC, in addition
to any and all other rights and remedies afforded by the Loan Documents, at
law, in equity, or otherwise, including, without limitation, such rights and
remedies as (a) applying by appropriate judicial proceedings for appointment of
a receiver for all or part of the Collateral (and Debtor hereby consents to any
such appointment), and (b) applying to the Obligations any cash held by Secured
Party under this Restated Security Agreement. The exercise of one or more
rights or remedies by Secured Party hereunder shall not prejudice or impair the
concurrent or subsequent exercise of any other rights or remedies by
39
Secured Party. If, in the opinion of Secured Party, there is any question that
a public or semipublic sale or distribution of any Collateral will violate any
state or federal securities law, Secured Party in its discretion (a) may offer
and sell securities privately to purchasers who will agree to take them for
investment purposes and not with a view to distribution and who will agree to
imposition of restrictive legends on the certificates representing the
security, or (b) may sell such securities in an intrastate offering under
Section 3(a)(11) of the Securities Act of 1933, and no sale so made in good
faith by Secured Party shall be deemed to be not "commercially reasonable"
because so made.
a. Notice. Reasonable notification of the time and place of
any public sale of the Collateral, or reasonable notification of the
time after which any private sale or other intended disposition of the
Collateral is to be made, shall be sent to Debtor and to any other
Person entitled to notice under the UCC. It is agreed that notice sent
or given not less than twenty (20) business days prior to the taking
of the action to which the notice relates is reasonable notification
and notice for the purposes of this subparagraph.
b. Application of Proceeds. Secured Party shall apply the
proceeds of any sale or other disposition of the Collateral under this
paragraph in the following order: first, to the payment of all its
expenses incurred in retaking, holding, and preparing any of the
Collateral for sale(s) or other disposition, in arranging for such
sale(s) or other disposition, and in actually selling or disposing of
the same (all of which are part of the Obligations); second, toward
repayment of amounts expended by Secured Party under Paragraph I.3;
and third, toward payment of the balance of the Obligations as
determined by Secured Party. If the proceeds are insufficient to pay
the Obligations in full, Debtor shall remain liable for any deficiency
to the extent provided in the Credit Agreement.
3. Other Rights of Secured Party.
a. Performance. In the event Debtor shall fail to pay when
due all taxes on any of the Collateral, or to preserve the priority of
the Security Interest in any of the Collateral, or otherwise fail to
perform any of its obligations hereunder or under the Loan Documents
with respect to the Collateral, then Secured Party may, at its option,
but without being required to do so, pay such taxes, prosecute or
defend any suits in relation to the Collateral, or insure and keep
insured the Collateral in any amount deemed appropriate by Secured
Party, or take all other action which Debtor is required, but has
failed or refused, to take hereunder or under the Note. Any sum which
may be expended or paid by Secured Party under this subparagraph
(including, without limitation, court costs and attorneys' fees) shall
bear interest from the dates of expenditure or payment at the Default
Rate (as defined in the Note) until paid and, together with such
interest, shall be payable by Debtor to Secured Party upon demand and
shall be part of the Obligations.
b. Collection. After the occurrence of an Event of Default
and during the continuation thereof, upon notice from Secured Party,
Maker and each other obligor with respect to any payments on any of
the Collateral (including without limitation condemnation proceeds,
dividends and other distributions with respect to securities, and
insurance proceeds payable by reason of loss or damage to any of the
Collateral Property)
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is hereby authorized and directed by Debtor to make payment directly
to Secured Party, regardless of whether Debtor was previously making
collections thereon. Subject to Subparagraph I.3(d) hereof, until such
notice is given, Debtor is authorized to retain and expend all
payments made on the Collateral. After the occurrence of an Event of
Default and during the continuation thereof, Secured Party shall have
the right in its own name or in the name of Debtor to compromise or
extend the time of payment with respect to all or any portion of the
Collateral for such amounts and upon such terms as Secured Party may
determine; to demand, collect, receive, receipt for, ▇▇▇ for,
compound, settle, compromise, adjust, realize upon and give
acquittances for any and all amounts due or to become due with respect
to Collateral; to file any claims or take any action or initiate any
proceedings which Secured Party may deem necessary or desirable for
the collection of any of the Collateral or to otherwise enforce the
rights or remedies of Debtor with respect to any Collateral; to take
control of cash and other Proceeds of any Collateral; to endorse the
name of Debtor on any notes, acceptances, checks, drafts, money
orders, or other evidences of payment on Collateral that may come into
the possession of Secured Party; to sign the name of Debtor on any
drafts against obligors or other Persons making payment with respect
to Collateral, on assignments and verifications of accounts or other
Collateral and on notices to obligors making payment with respect to
Collateral; to send requests for verification of obligations to any
such obligor; to take any action Debtor is required to take or any
other necessary action to obtain, preserve, and enforce this Restated
Security Agreement, and maintain, preserve and collect the Collateral,
without notice to Debtor, and add the costs of same to the Obligation;
to release Collateral in Secured Party's possession to any Person,
temporarily or otherwise; to set standards from time to time to govern
what may be deemed after-acquired Collateral; to transfer any of the
Collateral, or evidence thereof, into its own name or that of its
nominee and receive the Proceeds therefrom and hold the same as
security for the Obligation, or apply the same thereon; to exercise as
to the Collateral all the rights of the owner thereof; and to do all
other acts and things necessary to carry out the intent of this
Restated Security Agreement. If Maker or any other obligor fails or
refuses to make payment on any Collateral when due, Secured Party is
authorized, in its sole discretion, either in its own name or in the
name of Debtor, to take such action as Secured Party shall deem
appropriate for the collection of any amounts owed with respect to the
Collateral or upon which a delinquency exists. Regardless of any other
provision hereof, however, Secured Party shall never be liable for its
failure to collect, or for its failure to exercise diligence in the
collection of, any amounts owed with respect to Collateral, nor shall
it be under any duty whatever to anyone except Debtor to account for
funds that it shall actually receive hereunder. Without limiting the
generality of the foregoing, Secured Party shall have no
responsibility for ascertaining any maturities, calls, conversions,
exchanges, offers, tenders, or similar matters relating to any
Collateral, or for informing Debtor with respect to any of such
matters (irrespective of whether Secured Party actually has, or may be
deemed to have, knowledge thereof). The receipt of Secured Party to
Maker or any other obligor shall be a full and complete release,
discharge, and acquittance to such obligor, to the extent of any
amount so paid to Secured Party.
c. Certain Proceeds. After the occurrence and during the
continuance of an Event of Default, any cash Proceeds of Collateral
which come into the possession of
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Secured Party (including, without limitation, insurance and
condemnation proceeds) may, at Secured Party's option, be applied in
whole or in part to the Obligation, be released in whole or in part to
or on the written instructions of Debtor for any general or specific
purpose, or be retained in whole or in part by Secured Party as
additional Collateral. Any cash Collateral in the possession of
Secured Party may be invested by Secured Party but Secured Party shall
never be obligated to make any such investment and shall never have
any liability to Debtor for any loss which may result therefrom. All
interest and other amounts earned from any investment of Collateral
may be dealt with by Secured Party in the same manner as other cash
Collateral.
d. Use and Operation of Collateral. Should any Collateral
come into the possession of Secured Party, Secured Party may use or
operate such Collateral for the purpose of preserving it or its value
pursuant to the order of a court of appropriate jurisdiction or in
accordance with any other rights held by Secured Party with respect to
such Collateral. Debtor covenants promptly to reimburse and pay to
Secured Party, at Secured Party's request, the amount of all
reasonable expenses (including, without limitation, the cost of any
insurance and payment of taxes or other charges) incurred by Secured
Party in connection with its custody and preservation of Collateral,
and all such expenses, costs, taxes, and other charges shall bear
interest at the Maximum Rate (as defined in the Note) until repaid
and, together with such interest, shall be payable by Debtor to
Secured Party upon demand and shall become part of the Obligations.
However, the risk of accidental loss or damage to, or diminution in
value of, Collateral is on Debtor, and Secured Party shall have no
liability whatever for failure to obtain or maintain insurance, nor to
determine whether any insurance ever in force is adequate as to amount
or as to the risks insured. With respect to Collateral that is in the
possession of Secured Party, Secured Party shall have no duty to fix
or preserve rights against prior parties to such Collateral and shall
never be liable for any failure to use diligence to collect any amount
payable in respect of such Collateral, but shall be liable only to
account to Debtor for what it may actually collect or receive thereon.
The provisions of this subparagraph shall be applicable whether or not
an Event of Default has occurred and is continuing.
e. Diminution in Value of Collateral. Secured Party shall
have no liability or responsibility whatsoever for any diminution in
or loss of value of any Collateral.
I. MULTIPLE COUNTERPARTS
This Security Agreement may be executed in counterparts, each of which
shall be deemed an original, and all of which shall be deemed but one and the
same instrument.
J. GENERAL
1. Waiver. No delay on the part of Secured Party in exercising any
power or right shall operate as a waiver thereof; nor shall any single or
partial exercise of any power or right preclude other or further exercise
thereof or the exercise of any other power or right. No waiver by Secured Party
of any right hereunder or of any default by Debtor shall be binding upon
42
Secured Party unless in writing, and no failure by Secured Party to exercise
any power or right hereunder or waiver of any default by Debtor shall operate
as a waiver of any other or further exercise of such right or power or of any
further default.
2. Parties Bound. The rights of Secured Party hereunder shall inure to
the benefit of its successors and assigns. The terms of this Security Agreement
shall be binding upon the successors and assigns of the parties. All
representations, warranties and agreements of Debtor are joint and several if
Debtor is more than one and shall bind Debtor's personal representatives,
heirs, successors and assigns.
3. Definitions. Unless the context indicates otherwise, definitions in
the UCC apply to words and phrases in this Security Agreement; if UCC
definitions conflict, Chapter 9 definitions apply.
4. Notice. Notice shall be deemed reasonable if mailed postage prepaid
at least ten (10) days before the related action (or if the UCC elsewhere
specifies a longer period, such longer period) to Debtor's address given above.
5. Expenses. Debtor agrees to reimburse Secured Party's out-of-pocket
expenses, including reasonable attorney's fees, incurred in negotiating,
administering or enforcing any part of the Obligations, and in preparation,
execution, delivery and recording of any documents in connection with any part
of the Obligations, when not contrary to law.
6. Limitation on Interest. All agreements between Debtor and Secured
Party, whether now existing or hereafter arising and whether written or oral,
are hereby expressly limited so that in no contingency, whether by reason of
demand or acceleration of the indebtedness secured hereby or otherwise, shall
the interest contracted for, charged, received, paid or agreed to be paid to
Secured Party exceed the maximum amount permissible under applicable law. If,
from any circumstance whatsoever interest would otherwise be payable to the
holder hereof in excess of the maximum lawful amount, the interest payable to
Secured Party shall be reduced to the maximum amount permitted under applicable
law; and if from any such circumstance Secured Party shall ever receive
anything of value deemed interest by applicable law in excess of the maximum
lawful amount, an amount equal to any excessive interest shall be applied to
the reduction of the principal amount owing on the indebtedness secured hereby
and not to the payment of interest, or if such excessive interest exceeds such
unpaid balance of the principal, such excess shall be refunded to the
undersigned. All interest paid or agreed to be paid to Secured Party on the
indebtedness secured hereby shall, to the extent permitted by applicable law,
be amortized, prorated, allocated and spread throughout the full term of such
indebtedness (including the period of any renewal or extension thereof) until
payment in full so that the interest on account of such indebtedness shall not
exceed the maximum amount permitted by applicable law. The terms and provisions
of this paragraph shall control all agreements between Debtor and Secured
Party.
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7. Modifications. No provision hereof shall be modified or limited
except by a written agreement expressly referring hereto and to the provision
so modified or limited and signed by the Debtor and Secured Party, nor by
course of conduct, usage of trade, or by the law merchant.
8. Severability. The unenforceability of any provision of this
Security Agreement shall not affect the enforceability or validity of any other
provision.
9. Gender and Number. Where appropriate, the use of one gender shall
be construed to include the others or any of them; and the singular number
shall be construed to include the plural, and vice versa.
10. Applicable Law and Venue. THIS SECURITY AGREEMENT SHALL BE
CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF TEXAS.
11. Financing Statement. A carbon, photographic or other reproduction
of this Security Agreement or any financing statement covering the Collateral
shall be sufficient as a financing statement.
[INTENTIONALLY BLANK]
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EXECUTED as of the date and year first above written.
DEBTOR: CRESCENT DEVELOPMENT MANAGEMENT
CORP., a Delaware corporation
By:
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ III
------------------------------
Title President
-----------------------------
SECURED PARTY: CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.,
Sole general partner
By:
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title Senior Vice President, Law
------------------------------
45
[CRESCENT DEVELOPMENT MANAGEMENT CORP. LETTERHEAD]
September 30, 1997
Crescent Real Estate Equities Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Agreement dated August 11, 1995 ("Credit
Agreement") between Crescent Development Management
Corp. ("Borrower") and Crescent Real Estate Equities
Limited Partnership ("Lender"); and Security Agreement
dated August 11, 1995 ("Security Agreement") between
Borrower and Lender
Gentlemen:
Effective April 15, 1997, Lender consented to increase the Commitment Amount
(as defined in the Credit Agreement) by $8 million to $28,166,666, and in that
connection that Borrower and Lender executed and delivered a First Amendment to
Credit Agreement, dated as of April 15, 1997, and Borrower made and delivered
to Lender, in place of the original Note in the principal amount of $20,166,666
dated August 11, 1995, made by the undersigned, a new Note in the principal sum
of $28,166,666 made by the undersigned as of April 15,1997. In a related letter
of the same date, Borrower agreed that the security interests granted pursuant
to the Security Agreement to secure payment of the old Note continue to secure
payment of the new Note.
The Credit Agreement restricts use of loan proceeds to investments in East West
Resort Development, L. P. Borrower hereby requests Lender's consent to use up
to $5.6 million in loan proceeds under the Credit Agreement to invest in EWRD
Summit Holding, L. P., a partnership newly formed to invest in new formed
entities engaged in the development of that real estate project known as
"Eagle's Nest."
To induce Lender to grant its consent, Borrower offers to assign to Lender and
grant security interests to Lender, as additional Collateral to secure the
Obligations secured by the Security Agreement (as such terms are used in the
Security Agreement), all of the additional collateral described in Schedule A
attached hereto and incorporated herein by reference (and Borrower hereby does
assign to Lender and grant to Lender security interests in, all of the
additional collateral described in Schedule A attached hereto and incorporated
herein by reference); and Borrower agrees to execute any financing statement
covering such additional Collateral as Lender may request, so that Lender may
perfect its security interest in such additional Collateral through filing in
the proper offices.
THIS LETTER SHALL CONSTITUTE AN AMENDMENT TO THE SECURITY AGREEMENT AND LENDER
SHALL BE ENTITLED TO ENJOY THE BENEFITS OF "SECURED PARTY" UNDER, AND BORROWER
SHALL BE BOUND BY ALL OF THE OBLIGATIONS OF "DEBTOR" UNDER, SUCH SECURITY
AGREEMENT AS IF THE SAME WERE RESTATED HEREIN. Borrower agrees upon request of
Lender to execute and deliver an Amended and Restated Security Agreement
incorporating this amendment as well as any prior amendments between the
parties.
46
To signify your agreement with the preceding, please sign this letter in the
space provided below and return a copy to the undersigned.
Very truly yours,
Crescent Development Management Corp.
By:
----------------------------------
Name:
---------------------------------
Title:
-------------------------------
RECEIVED AND ACCEPTED:
Crescent Real Estate Equities Limited Partnership
By: Crescent Real Estate Equities, Ltd.
By:
----------------------------------
Its:
----------------------------------
47
SCHEDULE A
Description of the Collateral. Borrower assigns to Lender and grants
to Lender security interests in the following, whether now existing or
hereafter arising (the "Collateral"):
All of the rights and interests of Borrower as the limited partner of EWRD
Summit Holding, L. P., a Delaware limited partnership ("Summit"), including,
without limitation, Borrower's rights as a partner to receive distributions of
any sale, exchange, refinancing or other disposition of property owned by
Summit under the Limited Partnership Agreement entered into effective as of
September 23, 1997 (the "Summit Partnership Agreement"), and all other profits,
income, and distributions, whether in cash or in kind, owing to Borrower under
the Summit Partnership Agreement.
All Partner Loans and Default Loans (as those terms are defined in the Summit
Partnership Agreement) now or hereafter owing to Borrower and all security
therefor.
All present and future rights and interests Borrower may have or be or become
entitled to in the real and personal property (the "Summit Collateral
Property") now or hereafter owned by Summit.
All present and future proceeds, profits, combinations, reclassification,
improvements, and products of, accessions, attachments, and other additions to,
and substitutes and replacements for, all or any part of the Collateral
described herein.
All present and future accounts, contract rights, general intangibles, chattel
paper, documents, instruments, cash and noncash Proceeds, and other rights
arising from or by virtue of, or from the voluntary or involuntary sale, lease,
or other disposition of, or collections with respect to, or insurance or
condemnation proceeds payable with respect to, or proceeds payable by virtue of
warranty, indemnity, guaranty, or other claims, causes and rights of action,
settlements thereof, judicial and arbitration judgments and awards against any
person with respect to, all or any part of the Collateral or the Summit
Collateral Property described herein. As used herein, the term "Proceeds" shall
have the meaning assigned to it under the UCC and, to the extent not otherwise
included, shall include, but not be limited to, (i) all income, revenues, fees,
distributions, reimbursements and payments from whatever source received by, or
on behalf of Borrower, in respect of the Collateral, (ii) any and all payments
(in any form whatsoever) made or due and payable to Borrower from time to time
in connection with any casualty with respect to the Summit Collateral Property
or any of the Collateral (whether or not pursuant to an insurance policy), or
any requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Collateral by any governmental authority, (iii) all claims of
Borrower for losses or damages arising out of or related to or for any breach
of any agreements, covenants, representations or warranties or any default
under any of the Collateral described herein, and (iv) any and all other
amounts from time, to time paid or payable to, or on behalf of, Borrower under,
or in connection with, any of the Collateral.
All present and future security for the payment to Borrower of any of the
Collateral described herein and goods which gave, or will give, rise to any of
such Collateral or are evidenced, identified, or represented therein or
thereby.
48
CRESCENT DEVELOPMENT MANAGEMENT CORP.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
May ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Equities Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Agreement to Cross-Default and Cross-Collateralize Loans;
Amendment of Security Agreement
Gentlemen:
1. References and Definitions. Reference is made to that Credit Agreement dated
August 11, 1995, as amended (the "Credit Agreement"), between Crescent
Development Management Corp. ("Borrower") and Crescent Real Estate Equities
Limited Partnership ("Lender"); to that Security Agreement dated August 11,
1995, as amended ("Security Agreement") between Borrower and Lender; to that
Promissory Note in the principal amount of $3.1 million dated February 29, 1996
(the "Term Note"), made by Borrower and payable to Lender; to that Credit
Agreement dated January 1, 1998 (the "East West Credit Agreement") between
Borrower and Lender; and to that Amended and Restated; and to that Amended and
Restated Security Agreement dated January 1, 1998 (the "East West Security
Agreement") between Borrower and Lender.
2. Background. Lender has consented to increase the Commitment Amount (as
defined in the Credit Agreement) by $12 million to $40,166,666, and in that
connection that Borrower and Lender executed and delivered a Second Amendment
to Credit Agreement, dated as of May 8, 1998, and Borrower made and delivered
to Lender, in place of the Line of Credit Note in the principal amount of
$28,166,666 dated April 15, 1997, made by the undersigned, a new Note in the
principal sum of $40,166,666 made by the undersigned as of May 8, 1998. In a
related letter of the same date, Borrower agreed that the security interests
granted pursuant to the Security Agreement to secure payment of the old Note
continue to secure payment of the new Note. The Credit Agreement restricts use
of loan proceeds to investments in East West Resort Development, L. P. and EWRD
Summit Holding, L. P. Borrower hereby requests Lender's consent to use loan
proceeds under the Credit Agreement to invest in East West Resort Development
II, L. P. and East West Resort Development III, L. P., partnerships formed to
engage in real estate development projects on substantially the same basis as
East West Resort Development, L. P., could do or could have done.
3. Agreement to Cross-Default and Cross-Collateralize. To induce Lender to
grant its consent, Borrower offers to cross-default the Credit Agreement, the
Term Note, the East West Credit Agreement, the Security Agreement and the East
West Security Agreement and all related loan documents and all indebtedness and
obligations of Borrower to Lender under any and all of such instruments, so
that the occurrence of an event of default, not cured within any applicable
grace or curative periods, under any such instrument, shall constitute an event
of default under every other such instrument (without notice or expiration of
any additional grace or cure period except as specified in such other
instrument). Likewise, to induce Lender to grant its consent, Borrower offers
to cross-collateralize the Credit Agreement, the Term Note, the East West
Credit Agreement, the Security Agreement and the East West Security Agreement
and all related loan documents and all indebtedness and obligations of Borrower
to Lender under any and all of such instruments, so that the collateral
described in the Security Agreement shall secure, on a pari passu basis, the
Term Note and the East West Credit Agreement and
49
the indebtedness and obligations of Borrower thereunder and under any related
loan document and the collateral described in the East West Security Agreement
shall secure, on a pari passu basis, the Credit Agreement and the indebtedness
and obligations of Borrower thereunder and under any related loan document.
4. Grant of Additional Security Interests To Secure East West Loans and
Agreement to Further Amend Loan Documents. To better effect the intentions of
the foregoing paragraphs, Borrower offers to assign to Lender and grant
security interests to Lender, as additional Collateral to secure the
Obligations secured by the East West Security Agreement (as such terms are used
in the East West Security Agreement), all of the additional collateral
described in Schedule A attached hereto and incorporated herein by reference
and all of the collateral described in the Security Agreement (and Borrower
hereby does assign to Lender and grant to Lender security interests in, all of
the additional collateral described in Schedule A attached hereto and
incorporated herein by reference and all of the collateral described in the
Security Agreement, to secure payment of the indebtedness and other obligations
of Borrower under the East West Term Loan, the East West Credit Agreement, the
East West Security Agreement and all other Loan Documents referenced in the
East West Credit Agreement); Borrower agrees to execute any financing statement
covering such additional Collateral as Lender may request, so that Lender may
perfect its security interest in such additional Collateral through filing in
the proper offices; and Borrower further agrees to enter into amendments,
modifications or restatements of the East West Credit Agreement, the East West
Security Agreement, the East West Term Note and other related loan documents to
effect the purposes and intentions expressed hereinabove.
THIS LETTER SHALL CONSTITUTE AN AMENDMENT TO THE EAST WEST SECURITY AGREEMENT
AND LENDER SHALL BE ENTITLED TO ENJOY THE BENEFITS OF "SECURED PARTY" UNDER,
AND BORROWER SHALL BE BOUND BY ALL OF THE OBLIGATIONS OF "DEBTOR" UNDER, SUCH
SECURITY AGREEMENT AS IF THE SAME WERE RESTATED HEREIN. Borrower agrees upon
request of Lender to execute and deliver an Amended and Restated Security
Agreement incorporating this amendment as well as any prior amendments between
the parties.
5. Grant of Additional Security Interests to Secure Loan and Agreement to
Further Amend Loan Documents. To better effect the intentions of the foregoing
paragraphs, Borrower offers to assign to Lender and grant security interests to
Lender, as additional Collateral to secure the Obligations secured by the
Security Agreement (as such terms are used in the Security Agreement), all of
the additional collateral described in Schedule A attached hereto and
incorporated herein by reference and all of the collateral described in the
East West Security Agreement (and Borrower hereby does assign to Lender and
grant to Lender security interests in, all of the additional collateral
described in Schedule A attached hereto and incorporated herein by reference
and all of the collateral described in the East West Security Agreement, to
secure payment of the indebtedness and other obligations of Borrower under the
Credit Agreement, the Security Agreement and all other Loan Documents
referenced in the Credit Agreement); and Borrower agrees to execute any
financing statement covering such additional Collateral as Lender may request,
so that Lender may perfect its security interest in such additional Collateral
through filing in the proper offices.
THIS LETTER SHALL CONSTITUTE AN AMENDMENT TO THE SECURITY AGREEMENT AND LENDER
SHALL BE ENTITLED TO ENJOY THE BENEFITS OF "SECURED PARTY" UNDER, AND BORROWER
SHALL BE BOUND BY ALL OF THE OBLIGATIONS OF "DEBTOR" UNDER, SUCH SECURITY
AGREEMENT AS IF THE SAME WERE RESTATED HEREIN. Borrower agrees upon request of
Lender to execute and deliver an Amended and Restated Security Agreement
incorporating this amendment as well as any prior amendments between the
parties.
50
To signify your agreement with the preceding, please sign this letter in the
space provided below and return a copy to the undersigned.
Very truly yours,
Crescent Development Management Corp.
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
RECEIVED AND ACCEPTED:
Crescent Real Estate Equities Limited Partnership
By: Crescent Real Estate Equities, Ltd.
By:
--------------------------------------
Its:
-------------------------------------
51
SCHEDULE A
Description of the Collateral. Borrower assigns to Lender and grants
to Lender security interests in the following, whether now existing or
hereafter arising (the "Collateral"):
a. All of the rights and interests of Debtor as a member of
East West Resorts, LLC, a Delaware limited liability company (the
"Company"), including, without limitation, Debtor's rights as a member
to receive distributions of any sale, exchange, refinancing or other
disposition of property owned by the Company under the Second Amended
and Restated Operating Agreement entered into effective as of January
1, 1998, as amended from time to time hereafter (the "Operating
Agreement"), and all other profits, income, and distributions, whether
in cash or in kind, owing to Debtor under the Operating Agreement.
b. All of the rights and interests of Debtor as a limited
partner of East West Resort Development II, L. P., a Delaware limited
partnership ("EWRD2"), including, without limitation, Debtor's rights
as a member to receive distributions of any sale, exchange,
refinancing or other disposition of property owned by EWRD2 under the
Limited Partnership Agreement dated as of September 26, 1996, as
subsequently amended (as amended from time to time hereafter, the
"EWRD2 Partnership Agreement"), and all other profits, income, and
distributions, whether in cash or in kind, owing to Debtor under the
EWRD2 Partnership Agreement.
c. All of the rights and interests of Debtor as a limited
partner of East West Resort Development III, L. P., a Delaware limited
partnership ("EWRD"), including, without limitation, Debtor's rights
as a member to receive distributions of any sale, exchange,
refinancing or other disposition of property owned by EWRD under the
Limited Partnership Agreement dated as of _______________, as
subsequently amended (as amended from time to time hereafter, the
"EWRD3 Partnership Agreement"), and all other profits, income, and
distributions, whether in cash or in kind, owing to Debtor under the
EWRD3 Partnership Agreement.
d. All Partner Loans and Default Loans (as defined in the
EWRD Partnership Agreement) now or hereafter owing to Debtor and all
security therefor.
e. All present and future rights and interests Debtor may
have or be or become entitled to in the real and personal property
(the "Collateral Property") now or hereafter owned by the Company or
Partnerships.
f. All present and future proceeds, profits, combinations,
reclassification, improvements, and products of, accessions,
attachments, and other additions to, and substitutes and replacements
for, all or any part of the Collateral described herein.
g. All present and future accounts, contract rights, general
intangibles, chattel paper, documents, instruments, cash and noncash
Proceeds, and other rights arising from or by virtue of, or from the
voluntary or involuntary sale, lease, or other disposition of, or
collections with respect to, or insurance or condemnation proceeds
payable with respect to, or proceeds payable by virtue of warranty,
indemnity, guaranty, or other claims, causes and rights of action,
settlements thereof, judicial and arbitration judgments and awards
against any person with respect to, all or any part of the Collateral
or the Collateral Property described herein. As used herein, the term
"Proceeds" shall have the meaning assigned to it under the UCC and, to
the extent not otherwise included, shall include, but not be limited
to, (i) all income, revenues, fees, distributions, reimbursements and
payments from whatever source received by, or on behalf of Debtor, in
respect of the Collateral, (ii) any and all payments (in any form
whatsoever) made or due and payable to Debtor from time to time in
connection with any casualty with
52
respect to the Collateral Property or any of the Collateral (whether
or not pursuant to an insurance policy), or any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part
of the Collateral by any governmental authority, (iii) all claims of
Debtor for losses or damages arising out of or related to or for any
breach of any agreements, covenants, representations or warranties or
any default under any of the Collateral described herein, and (iv) any
and all other amounts from time, to time paid or payable to, or on
behalf of, Debtor under, or in connection with, any of the Collateral.
h. All present and future security for the payment to Debtor
of any of the Collateral described herein and goods which gave, or
will give, rise to any of such Collateral or are evidenced,
identified, or represented therein or thereby.
53
[CRSCENT DEVELOPMENT MANAGEMENT CORP. LETTERHEAD]
November ▇, ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Equities Limited Partnership
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Re: Credit Agreement dated August 11, 1995, as amended
by First and Second Amendments ("Credit Agreement")
between Crescent Development Management Corp.
("Borrower") and Crescent Real Estate Equities Limited
Partnership ("Lender"); and Security Agreement dated
August 11, 1995, as amended by First Amended and
Restated Security Agreement and by subsequent letter
amendments dated September 30, 1997 and May 8, 1998
("Security Agreement") between Borrower and Lender
Gentlemen:
1. References and Definitions. Reference is made to the Credit Agreement; to
the Security Agreement; to that Credit Agreement dated January 1, 1998 (the
"East West Credit Agreement") between Borrower and Lender; to that Promissory
Note in the principal amount of $3.1 million dated February 29, 1996 (the "Term
Note"), made by Borrower and payable to Lender; to that Credit Agreement dated
January 1, 1998 between Borrower and Lender, as amended by the May 8, 1998,
letter referenced above (the "East West Credit Agreement"); and to that Amended
and Restated Security Agreement dated January 1, 1998, as amended by the May 8,
1998, letter referenced above (the "East West Security Agreement"). The Credit
Agreement, the Term Note, the East West Credit Agreement, the Security
Agreement, and the East West Security Agreement are cross-defaulted and
cross-collateralized, so that the occurrence of an event of default, not cured
within any applicable grace or curative periods, under any such instrument,
shall constitute an event of default under every other such instrument (without
notice or expiration of any additional grace or cure period except as specified
in such other instrument) and the collateral described in the Security
Agreement secures, on a pari passu basis, the Term Note and the East West
Credit Agreement and the indebtedness and obligations of Borrower thereunder
and under any related loan document and the collateral described in the East
West Security Agreement secures, on a pari passu basis, the Credit Agreement
and the indebtedness and obligations of Borrower thereunder and under any
related loan document.
2. Background. The Credit Agreement restricts use of loan proceeds to
investments in East West Resort Development, L. P. and (pursuant to waivers and
consents from Lender) EWRD Summit Holding, L. P.; East West Resort Development
II, L. P.; and East West Resort Development III, L. P. By separate document,
Borrower contemporaneously has requested Lender's consent to use up to $2
million in loan proceeds under the Credit Agreement to invest in EWRD Perry
Holding, L.P., a partnership newly formed to invest in EWRD Perry Riverbend,
LLC, a newly formed entity to engage in the development of a certain real
estate project in North Carolina known as "Riverbend."
3. Grant of Additional Security Interests to Secure All Loans from Lender. To
induce Lender to grant its consent, Borrower offers to assign to Lender and
grant security interests to Lender, as additional Collateral to secure the
Obligations secured by the Security Agreement and by the East West Security
Agreement (as such
54
terms are used in the Security Agreement and the East West Security Agreement,
as applicable), all of the additional collateral described in Schedule A
attached hereto and incorporated herein by reference (and Borrower hereby does
assign to Lender and grant to Lender security interests in, all of the
additional collateral described in Schedule A attached hereto and incorporated
herein by reference); and Borrower agrees to execute any financing statement
covering such additional Collateral as Lender may request, so that Lender may
perfect its security interest in such additional Collateral through filing in
the proper offices.
THIS LETTER SHALL CONSTITUTE AN AMENDMENT TO THE SECURITY AGREEMENT AND LENDER
SHALL BE ENTITLED TO ENJOY THE BENEFITS OF "SECURED PARTY" UNDER, AND BORROWER
SHALL BE BOUND BY ALL OF THE OBLIGATIONS OF "DEBTOR" UNDER, EACH SUCH SECURITY
AGREEMENT AS IF THE SAME WERE RESTATED HEREIN. Borrower agrees upon request of
Lender to execute and deliver one or more Amended and Restated Security
Agreements incorporating this amendment as well as any prior amendments between
the parties.
To signify your agreement with the preceding, please sign this letter in the
space provided below and return a copy to the undersigned.
Very truly yours,
Crescent Development Management Corp.
By:
------------------------------
Name:
----------------------------
Title:
----------------------------
RECEIVED AND ACCEPTED:
Crescent Real Estate Equities Limited Partnership
By: Crescent Real Estate Equities, Ltd.
By:
----------------------------
Its:
---------------------------
55
SCHEDULE A
Description of the Collateral. Borrower assigns to Lender and grants
to Lender security interests in the following, whether now existing or
hereafter arising (the "Collateral"):
All of the rights and interests of Borrower as the limited partner of EWRD
Perry Holding, L. P., a Delaware limited partnership ("Perry"), including,
without limitation, Borrower's rights as a partner to receive distributions of
any sale, exchange, refinancing or other disposition of property owned by Perry
under the Limited Partnership Agreement entered into effective as of November
1, 1998 (the "Perry Partnership Agreement"), and all other profits, income, and
distributions, whether in cash or in kind, owing to Borrower under the Perry
Partnership Agreement.
All Partner Loans (as that term is defined in the Perry Partnership Agreement)
now or hereafter owing to Borrower and all security therefor.
All present and future rights and interests Borrower may have or be or become
entitled to in the real and personal property (the "Perry Collateral Property")
now or hereafter owned by Perry.
All present and future proceeds, profits, combinations, reclassification,
improvements, and products of, accessions, attachments, and other additions to,
and substitutes and replacements for, all or any part of the Collateral
described herein.
All present and future accounts, contract rights, general intangibles, chattel
paper, documents, instruments, cash and noncash Proceeds, and other rights
arising from or by virtue of, or from the voluntary or involuntary sale, lease,
or other disposition of, or collections with respect to, or insurance or
condemnation proceeds payable with respect to, or proceeds payable by virtue of
warranty, indemnity, guaranty, or other claims, causes and rights of action,
settlements thereof, judicial and arbitration judgments and awards against any
person with respect to, all or any part of the Collateral or the Perry
Collateral Property described herein. As used herein, the term "Proceeds" shall
have the meaning assigned to it under the UCC and, to the extent not otherwise
included, shall include, but not be limited to, (i) all income, revenues, fees,
distributions, reimbursements and payments from whatever source received by, or
on behalf of Borrower, in respect of the Collateral, (ii) any and all payments
(in any form whatsoever) made or due and payable to Borrower from time to time
in connection with any casualty with respect to the Perry Collateral Property
or any of the Collateral (whether or not pursuant to an insurance policy), or
any requisition, confiscation, condemnation, seizure or forfeiture of all or
any part of the Collateral by any governmental authority, (iii) all claims of
Borrower for losses or damages arising out of or related to or for any breach
of any agreements, covenants, representations or warranties or any default
under any of the Collateral described herein, and (iv) any and all other
amounts from time, to time paid or payable to, or on behalf of, Borrower under,
or in connection with, any of the Collateral.
All present and future security for the payment to Borrower of any of the
Collateral described herein and goods which gave, or will give, rise to any of
such Collateral or are evidenced, identified, or represented therein or
thereby.
56
LINE OF CREDIT NOTE
$40,166,666.00 May 8, 1998
FOR VALUE RECEIVED, CRESCENT DEVELOPMENT MANAGEMENT CORP., a Delaware
corporation ("Borrower") promises to pay to CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware limited partnership ("Lender"), at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the principal sum of FORTY MILLION
ONE HUNDRED SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SIX AND NO/100 DOLLARS
($40,166,666.00), or so much thereof as may be advanced, with interest on the
principal balance from time to time remaining unpaid at the rates hereinafter
provided.
Interest on the principal balance hereof from time to time remaining
unpaid prior to an Event of Default shall be payable at the Interest Rate,
provided that the interest payable shall not exceed the maximum rate permitted
by applicable law (the "Maximum Rate"). Interest on the principal hereof from
time to time remaining unpaid and, to the extent permitted by applicable law,
interest on the unpaid interest, shall bear interest from and after an Event of
Default at the Default Rate provided that in no event shall the Default Rate be
more than the Maximum Rate.
This Note renews, modifies, replaces and is given in substitution for
that certain Note dated April 15, 1997, in the principal amount of
$28,166,666.00 made by Borrower and payable to Lender and is the "Note"
referred to in the Credit Agreement dated August 11, 1995 executed by Lender
and Borrower as amended by that First Amendment to Credit Agreement dated April
15, 1997 , and further amended by that Second Amendment to Credit Agreement of
even date herewith (the "Credit Agreement"). Borrower may borrow, repay and
reborrow amounts under this Note as permitted by the Credit Agreement. Terms
defined in the Credit Agreement and not otherwise defined herein are used
herein with the meanings given those terms in the Credit Agreement.
Borrower may request and receive Advances hereunder only in accordance
with the terms and provisions of the Credit Agreement. This Note shall be
payable as provided in Article 3 of the Credit Agreement.
Upon the occurrence of any Event of Default (after the giving of any
notice required in the Credit Agreement and the expiration of any applicable
grace periods provided for in the Credit Agreement), all amounts then remaining
unpaid on this Note shall become or may be declared to be immediately due and
payable and the holder hereof shall have all rights and remedies of Lender
under the Credit Agreement and other Loan Documents. The failure to exercise
the option to accelerate the maturity of this Note upon the happening of any
one or more of the Events of Default hereunder shall not constitute a waiver of
the right of the holder of this Note to exercise the same or any other option
at that time or at any subsequent time with respect to such uncured default or
any other event of uncured default hereunder or under any other of the Loan
Documents. The remedies of the holder hereof, as provided in this Note and in
any other of the Loan Documents, shall be cumulative and concurrent and may be
pursued separately, successively or together, as often as occasion therefor
shall arise, at the sole discretion of the holder hereof. The acceptance by the
holder hereof of any payment under this Note which is less than payment in full
of all amounts due and payable at the time of such payment shall not constitute
a waiver of or impair, reduce, release or extinguish any of the rights or
remedies of the holder hereof to exercise the foregoing option or any other
option granted to the holder in this Note or in any other of the Loan
Documents, at that time or at any subsequent time, or nullify any prior
exercise of any such option.
57
The undersigned and all other parties now or hereafter liable for the
payment hereof, whether as endorser, surety or otherwise, except as provided in
the Credit Agreement, severally waive demand, presentment, notice of dishonor,
notice of intention to accelerate the indebtedness evidenced hereby, notice of
the acceleration of the maturity hereof, diligence in collecting, grace, notice
and protest, and consent to all extensions which from time to time may be
granted by the holder hereof and to all partial payments hereon, whether before
or after maturity.
If this Note is not paid when due, whether at maturity or by
acceleration, or if it is collected through a bankruptcy, probate or other
court, whether before or after maturity, the undersigned agrees to pay all
costs of collection, including, but not limited to, reasonable attorneys' fees
and expenses incurred by the holder hereof.
All agreements between the undersigned and the holder hereof, whether
now existing or hereafter arising and whether written or oral, are hereby
limited so that in no contingency, whether by reason of acceleration of the
maturity hereof or otherwise, shall the interest contracted for, charged,
received, paid or agreed to be paid to the holder hereof exceed the maximum
amount permissible under applicable law. If from any circumstance the holder
hereof shall ever receive anything of value deemed interest by applicable law
in excess of the maximum lawful amount, an amount equal to any excessive
interest shall be applied to the reduction of the principal hereof and not to
the payment of interest, or if such excessive interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to the undersigned.
All interest paid or agreed to be paid to the holder hereof shall, to the
extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full period until payment in full of the principal so
that the interest hereon for such full period shall not exceed the maximum
amount permitted by applicable law. This paragraph shall control all agreements
between the undersigned and the holder hereof.
This Note may be prepaid only in accordance with the terms of the
Credit Agreement.
The loan transaction evidenced hereby shall not be governed by, or be
subject to, Chapter 15 or Chapter 346 of the Texas Credit Code or Chapter 303
of the Texas Finance Code.
EXCEPT WHERE FEDERAL LAW IS APPLICABLE (INCLUDING, WITHOUT LIMITATION,
ANY FEDERAL USURY CEILING OR OTHER FEDERAL LAW WHICH, FROM TIME TO TIME, IS
APPLICABLE TO THE INDEBTEDNESS EVIDENCED HEREIN AND WHICH PREEMPTS STATE USURY
LAWS), THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
TEXAS AND THE LAWS OF THE UNITED STATES APPLICABLE TO TRANSACTIONS IN SUCH
STATE.
THIS NOTE, TOGETHER WITH THE CREDIT AGREEMENT AND EACH OTHER LOAN
DOCUMENT REFERENCED HEREIN OR THEREIN, REPRESENT THE FINAL AGREEMENTS BETWEEN
THE PARTIES WITH RESPECT TO THE LOAN AND MAY NOT BE CONTRADICTED BY EVIDENCE OF
PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE
NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
CRESCENT DEVELOPMENT MANAGEMENT CORP.,
a Delaware corporation
By:
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Name:
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Title:
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