1
EXHIBIT 10.51
$7,000,000
CREDIT AGREEMENT,
dated as of July 28, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES LIMITED PARTNERSHIP
a Delaware limited partnership
as the Lender
and
CRL INVESTMENTS, INC.
a Texas corporation
as the Borrower
2
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Agreement"), dated as of July 28, ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Lender"), and CRL INVESTMENTS, INC., a Texas 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 $7,000,000, from time to time
prior to the Commitment Termination Date; and
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 Seven Million Dollars
($7,000,000) (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) the aggregate principal amount of all Advances made would exceed
the Commitment Amount or (b) with respect to a particular Project or an Option
Exercise, the aggregate Equity Advance then outstanding with respect to such
Project or Option Exercise would exceed the Advance Limit for such Project or
Option Exercise. Notwithstanding anything in this Agreement to the contrary,
(i) Lender shall not be obligated to advance additional funds with respect to
the Venetian Project if a default (after notice and expiration of cure periods)
occurs by CR Las Vegas under the Venetian Lease or a default occurs and is
continuing under the CR Las Vegas Operating Agreement and (ii) Lender shall not
be obligated to advance additional funds if a default occurs and is continuing
under the CR License Operating Agreement.
SECTION 2.2 Advance Procedure. Borrower may from time to time request
that an Advance be made. Each Advance shall be in an amount that is equal to
the lesser of (a) the unused amount of the Commitment Amount, or (b) the
allowable Equity Advance for the applicable Project or Option Exercise (which
amount shall not exceed the Advance Limit for such Project or Option Exercise).
The request shall be made by delivering an 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 account the Borrower specifies in its Application for
Advance.
3
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 Seven Million Dollars ($7,000,000).
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 receipt by Borrower of any 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. 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. 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 CR License) and
(ii) CR License 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, CR License 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 12.0%, compounded annually.
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
-2-
4
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 that 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 that 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.
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) that
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 each Advance under the
Loan shall be used by Borrower solely to acquire interests in, or make capital
contributions to, CR License or a Subpartnership.
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.
-3-
5
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 5.1.7 Contribution Event. The Lender shall have
received evidence of the occurrence of a Contribution Event.
SECTION 5.2 All Advances. The obligation of Lender to fund any
Advance 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 Advance 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. If applicable, the Lender
shall have received a copy of the Organic Documents for the Subpartnership that
will be capitalized with the proceeds of the requested Advance.
SECTION 5.2.4 Resolutions, Etc.. If applicable, the Lender
shall have received from CR License (in its individual capacity and in its
capacity as manager of the applicable Subpartnership) a certificate of
resolutions and incumbency authorizing the organization of the Subpartnership.
-4-
6
SECTION 5.2.5 Evidence of Insurance. If applicable, the
Lender shall have received adequate evidence that all insurance required by
this Agreement is in effect with respect to the contemplated Project.
SECTION 5.2.6 Fees and Expenses. The Lender shall have
received all fees, costs and expenses due and payable pursuant to this
Agreement.
SECTION 5.2.7 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.
SECTION 5.2.8 Contribution Event. The Lender shall have
received evidence of the occurrence of a Contribution Event.
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 Texas, 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 that 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 Document to which it is a party, or for the
consummation and performance of the transactions contemplated hereby or
thereby.
-5-
7
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, CR License or a Subpartnership, 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 that
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 that 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, CR License or any
Subpartnership that, if adversely determined, could reasonably be expected to
have a material adverse effect on Borrower, CR License, any Subpartnership, any
Project 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
that would subject Borrower, CR License 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 is
dated or certified, and does not omit any material fact necessary to make such
information not misleading.
-6-
8
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.
(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 that are provided to the members of CR License.
(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 Borrower, CR
License, a Subpartnership, or a Project, or
Borrower's or CR License's investment in any
Subpartnership, or
(ii) copies of any material notices or
communications from a Governmental Authority with
respect to Borrower, CR License, a Subpartnership or
a Project; or
(iii) copies of any material notices or
communications from Borrower, CR License or a
Subpartnership to a Governmental Authority with
respect to a Project.
-7-
9
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, CR
License, 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 CR License
Operating Agreement, will cause CR License 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 CR License
Operating Agreement, will cause CR License 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 CR License
Operating Agreement, will cause CR License and each of the Subpartnerships to,
keep books and records that accurately reflect all of its business affairs and
transactions in all material respects. Borrower will, and will cause CR
License 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 CR License
Operating Agreement, will cause CR License and each of its Subpartnerships to,
-8-
10
(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, in the aggregate,
One Million Dollars ($1,000,000) in cash to the capital of Borrower. Prior to
requesting an Advance, Borrower will, through its Board of Directors, make an
Assessment Determination whereby 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) the amount of the requested
Advance 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
(each an "Additional Equity Contribution"). Notwithstanding anything to the
contrary contained in this Agreement, no additional Advance will be made to
Borrower pursuant to this Agreement unless and until each Subscriber has
contributed cash to Borrower in an amount equal to such Subscriber's Additional
Equity Contribution (each a "Contribution Event").
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 CR License
Operating Agreement, will not permit CR License or any of the 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 CR License
Operating Agreement, will not permit CR License or any of the 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;
-9-
11
(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; and
(c) other unsecured indebtedness of the Borrower,
CR License and the Subpartnerships in an aggregate amount not
to exceed $50,000 for the Borrower, $50,000 for CR License 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 CR
License Operating Agreement, will not permit CR License or any of the
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.
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 that, 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.
-10-
12
SECTION 8.1.4 Bankruptcy, Insolvency, etc. The Borrower, CR
License or any of the 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, CR License 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, CR License 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, CR
License and each Subpartnership hereby expressly authorize the
Lender and each 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;
(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, CR License or any Subpartnership,
and, if any such case or proceeding is not commenced by the
Borrower, CR License or any Subpartnership, such case or
proceeding shall be consented to or acquiesced in by the
Borrower, CR License 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, CR License, and
each Subpartnership hereby expressly authorizes the Lender to
appear in any court conducting any such case or proceeding
during such 120-day period to preserve, protect and defend its
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, CR License or any of Subpartnership, 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
may, by notice to the Borrower, declare all or any portion
-11-
13
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.
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 the 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 the 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 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.
-12-
14
SECTION 9.4 Indemnification.
(a) In consideration of the execution and
delivery of this Agreement by Lender, the Borrower hereby
indemnifies, 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, CR License or
any Subpartnership; or
(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, CR License or any Subpartnership.
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 that
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 THAT MAY BE ALLEGED AS A RESULT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT.
-13-
15
SECTION 9.5 Severability. Any provision of this Agreement or any
other Loan Document that 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.
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 COI and Lender on July 28, 1998.
"Advance" means all money advances under the Loan made by Lender
pursuant to an Application for Advance in accordance with Article II.
-14-
16
"Advance Limit" means (i) with respect to the Venetian Project,
$4,500,000, (ii) with respect to the Option Exercise, $2,500,000 with an
Advance Limit of $1,000,000 attributable to the Second Option (as defined in
the Option Agreement) and an Advance Limit of $1,500,000 attributable to the
Third Option (as defined in the Option Agreement), and (iii) with respect to
any other project or investment, an amount to be agreed upon by Lender and
Borrower.
"Agreement" means this Credit Agreement, as amended from time to time.
"Application for Advance" means a loan request and certificate duly
executed by the Borrower, in the form attached hereto as Exhibit A or such
other form approved by Lender from time to time.
"Assessment Determination" is defined in the Additional Funding
Instruments.
"Borrower" means CRL Investments, Inc., a Texas 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 Borrower's
member interests in CR License and CR Las Vegas.
"Business Day" means any day that is neither a Saturday or Sunday nor
a legal holiday that 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.
"Code" means the Internal Revenue Code of 1986, as amended, reformed
or otherwise modified from time to time.
"COI" means Crescent Operating, Inc., a Delaware corporation.
"Commitment Termination Date" means the earlier of (i) the occurrence
of an Event of Default, (ii) the Stated Maturity Date, or (iii) the date on
which Lender has made Advances equal to the Commitment Amount.
"CR Las Vegas" means CR Las Vegas, LLC, an Arizona limited liability
company.
"CR Las Vegas Operating Agreement" means that certain Operating
Agreement of CR Las Vegas dated May 28, 1998, as amended from time to time.
"CR License" means CR License, LLC, an Arizona limited liability
company.
"CR License Operating Agreement" means that certain Operating
Agreement of CR License dated __________, 1997, as amended from time to time.
-15-
17
"Default" means any Event of Default or any condition, occurrence or
event that, after notice or lapse of time or both, would constitute an Event of
Default.
"Distribution" means each distribution (other than deemed
distributions) made to Borrower pursuant to the CR License Operating Agreement
or the CR Las Vegas Operating 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.
"Equity Advance" means the amount advanced hereunder by Lender to
Borrower (in one or more Advances) to enable it to purchase an equity interest
in, or make an equity contribution to, CR License or a Subpartnership.
"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, CR License, Subpartnership or a Project.
"Governmental Requirement" means all laws, ordinances, rules and
regulations of any Governmental Authority applicable to Borrower, CR License,
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.
"Loan" is defined in the preamble.
"Loan Documents" means this Agreement, the Note, the Borrower 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
Lender pursuant to this Agreement and any note subsequently given in exchange,
substitution, modification, renewal or extension therefor.
-16-
18
"Option Agreement" means the Option Agreement dated as of July 26,
1996 between ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇, as sellers, and Borrower, as
assignee of Lender, as amended from time to time.
"Option Exercise" means the exercise by the Borrower of either the
Second Option or the Third Option (as such terms are defined in the Option
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 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.
"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.
"Project" means a project to be acquired, developed or leased by a
Subpartnership together with the improvements related thereto.
"RCRA" means the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6901, et seq., as in effect from time to time.
"Stated Maturity Date" means August 1, 2003.
"Subpartnership" means each limited liability company, whether now
existing or hereafter formed, in which CR License has an equity interest,
including CR Las Vegas.
"Subscriber" is defined in the Additional Funding Instruments to
include COI and Lender.
"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.
"Venetian Project" means the health spa to be operated under the
Canyon Ranch name in the Venetian Casino Resort under the Venetian Lease.
"Venetian Lease" means the Lease dated ________, 1998 between CR Las
Vegas and Grand Canal Shops Mall Construction, LLC, relating to the Venetian
Project.
-17-
19
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: CRL INVESTMENTS, INC., a Texas corporation
By:
-----------------------------------
Name:
------------------------------
Title:
-----------------------------
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
LENDER: CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.,
sole general partner
By:
---------------------------
Name:
----------------------
Title:
---------------------
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
20
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 July 28, 1998 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 Advance should be wired to the following bank account:
-------------------------------------
-------------------------------------
3. The undersigned hereby warrants and represents the following to Lender:
A. The Advance is being requested in connection with the following Project or Option Exercise (the
"APPLICABLE PROJECT"):
-------------------------------------
B. The Project Advance Limit
for the Applicable Project is: $
-------------
C. Lender has previously made Advances
with respect to the Applicable
Project in the aggregate amount of: $
-------------
D. Both before and after giving effect to the Advance that 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.
CRL INVESTMENTS, INC.
By:
-------------------------
Name:
-----------------------
Title:
----------------------
Exhibit A - Page 1
21
LINE OF CREDIT NOTE
$7,000,000.00 July 28, 1998
FOR VALUE RECEIVED, CRL INVESTMENTS, INC., a Texas corporation
("Borrower") promises to pay to CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("Lender"), at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the principal sum of SEVEN MILLION DOLLARS
($7,000,000.00), 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 is the "Note" referred to in the Credit Agreement dated of
even date herewith executed by Lender and Borrower, as amended from time to time
(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 that 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.
22
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 that 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 of the Texas Credit Code (Title 79, Revised Civil
Statutes of Texas, 1925, as amended).
EXCEPT WHERE FEDERAL LAW IS APPLICABLE (INCLUDING, WITHOUT LIMITATION,
ANY FEDERAL USURY CEILING OR OTHER FEDERAL LAW THAT, FROM TIME TO TIME, IS
APPLICABLE TO THE INDEBTEDNESS EVIDENCED HEREIN AND THAT 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.
CRL INVESTMENTS, INC., a Texas corporation
By:
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
2