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EXHIBIT 10.53
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (the "First Amendment") is
entered into effective as of August 27, 1998, by and among CRESCENT OPERATING,
INC., a Delaware corporation ("Borrower") and NATIONSBANK, N.A., a national
banking association (successor in interest by merger to NationsBank of Texas,
N.A.) ("Lender"), with the acknowledgment, confirmation, approval and agreement
of the "Support Parties" (herein so called) as set forth hereinbelow. The
Support Parties are signing this First Amendment solely for the purposes set
forth in Section 11 of this First Amendment.
W I T N E S S E T H:
WHEREAS, Borrower and Lender are parties to that certain Credit
Agreement dated as of August 27, 1997 (the "Credit Agreement") and Borrower,
Lender and Support Parties are parties to that certain Support Agreement of even
date therewith (the "Support Agreement");
WHEREAS, Borrower and Support Parties have requested that Lender agree
to a modification and extension of the "Termination Date" as currently defined
in the Credit Agreement and the "Successful Rights Offering" as contemplated in
the Credit Agreement and the Support Agreement, and Bank is willing to do so
upon the terms and conditions set forth herein; and
WHEREAS, Borrower and Lender desire to amend the Credit Agreement by
this First Amendment, with the acknowledgment, confirmation, approval and
agreement of the Support Parties with respect to the Support Agreement, all as
set forth hereinbelow, and the parties desire to enter into the agreements,
modifications and amendments as set forth below;
NOW, THEREFORE, for and in consideration of the above premises and for
other good and valuable consideration, the parties hereto agree as follows:
1. Definitions. All capitalized terms defined in the Credit Agreement,
as amended hereby, and not otherwise defined in this First Amendment shall have
the same meanings as assigned to them in the Credit Agreement when used in this
First Amendment, unless the context hereof shall otherwise require or provide.
2. Representations and Warranties. In order to induce Lender to enter
into this First Amendment, Borrower represents and warrants to Lender that:
A. This First Amendment, the Credit Agreement, as amended
hereby, and the Loan Papers are the legal and binding obligations of Borrower,
enforceable in accordance with their respective terms, except as limited by
bankruptcy, insolvency or other laws of general application relating to the
enforcement of creditors' rights;
B. No event has occurred and is continuing which
constitutes a Default or a Potential Default; and
C. All of the representations and warranties contained in
Paragraph 5 of the Credit Agreement, as amended by this First Amendment, are
true and correct as of the date hereof.
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3. Amendments to Credit Agreement.
A. The definition of the term "Successful Rights Offering", on
page 3 of the Credit Agreement, is hereby amended and restated in its entirety
to read as follows:
Successful Rights Offering means the offer and sale by
Borrower to its shareholders or to any other parties, through public
offering(s) and/ or private placement(s) (in any case, in accordance
with all applicable laws and regulations), of securities of Borrower,
pursuant to which sufficient net proceeds (after costs and expenses,
including underwriting commissions, if any) are received by Borrower to
enable Borrower pay the Obligation in full when due and payable.
B. The definition of the term "Termination Date", on page 4 of
the Credit Agreement, is hereby amended and restated in its entirety to read as
follows:
Termination Date means the earlier to occur of the following
dates: (a) August 27, 1999; and (b) the effective date that Lender's
commitment to extend credit under this agreement is otherwise canceled
or terminated in accordance with this agreement.
C. Paragraph 5 of the Credit Agreement is hereby amended to
replace clause (k) on pages 7 and 8 of the Credit Agreement with the following
clause (k):
(k) use its best efforts to complete offerings(s) and/ or
private placement(s) of securities of Borrower comprising a
Successful Rights Offering prior to August 27, 1999; provided
that Borrower will utilize the Support Agreement dated August
27, 1997, executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in connection herewith, as it may be modified,
amended, confirmed or restated, if necessary in order to
accomplish the foregoing and pay the Obligation in full when
due, and Borrower specifically agrees to take all reasonable
and necessary action to enforce such Support Agreement in such
instance and/ or, at the request of Lender, to join Lender in
any such enforcement action;
D. Paragraph 7 of the Credit Agreement is hereby amended to
replace clause (i) on page 9 of the Credit Agreement with the following clause
(i):
; (i) pay on the Termination Date the Obligation outstanding
as of such date and, in connection therewith, use its best
efforts to complete a Successful Rights Offering prior to the
Termination Date and take any other necessary or appropriate
lawful action, as may be requested by Lender or otherwise, in
order to assure that the Obligation is paid in full when due.
4. Conditions Precedent. This First Amendment and the obligations of
Lender hereunder are subject to the conditions precedent that Lender shall have
received from Borrower, together with this First Amendment duly executed by
Borrower and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, any other
documents requested by Lender prior to closing in connection herewith, all in
form and substance satisfactory to Lender, together with payment of Lender's
costs and expenses incurred in connection herewith as contemplated in the Credit
Agreement including, without limitation, the reasonable attorney's fees of the
Lender's legal counsel and any other costs, expenses and disbursements incurred
by Lender through the date of execution of this First Amendment.
5. Further Assurances. Borrower shall make, execute or endorse, and
acknowledge and deliver or file or cause same to be done, all such documents,
notices or other assurances, and take all such other action, as Lender may, from
time to time, deem reasonably necessary or proper in connection with this First
Amendment and the Credit Agreement, as amended hereby.
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6. Scope of Amendments. Any and all other provisions of the Credit
Agreement and any other Loan Papers are hereby amended and modified wherever
necessary and even though not specifically addressed herein, so as to conform to
the amendments and modifications set forth in this First Amendment.
7. Limitation on Agreements. The amendments set forth herein are
limited in scope as described herein and shall not be deemed (a) to be a consent
under or waiver of any other term or condition of the Credit Agreement or any of
the Loan Papers, or (b) to prejudice any right or rights which Lender now has or
may have in the future under, or in connection with the Credit Agreement as
amended by this First Amendment, the Note, the Loan Papers or any of the
documents referred to herein or therein.
8. Governing Law. This First Amendment has been prepared, in being
executed and delivered and is intended to be performed in the State of Texas,
and the substantive laws of such state and the applicable federal laws of the
United States of America shall govern the validity, construction, enforcement
and interpretation of this First Amendment.
9. ARBITRATION. ANY CONTROVERSY OR CLAIM BETWEEN OR AMONG THE PARTIES
HERETO, INCLUDING, BUT NOT LIMITED TO, THOSE ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED AGREEMENTS OR INSTRUMENTS, INCLUDING ANY CLAIM BASED ON
OR ARISING FROM AN ALLEGED TORT, SHALL BE DETERMINED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE FEDERAL ARBITRATION ACT (OR IF NOT APPLICABLE, THE
APPLICABLE STATE LAW). THE RULES OF PRACTICE AND PROCEDURE FOR THE ARBITRATION
OF COMMERCIAL DISPUTES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC.
(J.A.M.S.), AND THE "SPECIAL RULES" SET FORTH BELOW. IN THE EVENT OF ANY
INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON ANY ARBITRATION
AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY TO THIS CREDIT
AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED PROCEEDING, TO
COMPEL ARBITRATION OF ANY CONTROVERSY OR CLAIM TO WHICH THIS AGREEMENT APPLIES
IN ANY COURT HAVING JURISDICTION OVER SUCH ACTION.
A. SPECIAL RULES. THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF THE
BORROWER'S DOMICILE AT TIME OF THIS AGREEMENT'S EXECUTION AND ADMINISTERED BY
J.A.M.S. WHO WILL APPOINT AN ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY
PRECLUDED FROM ADMINISTERING THE ARBITRATION, THEN THE AMERICAN ARBITRATION
ASSOCIATION WILL SERVE. ALL ARBITRATION HEARINGS WILL BE COMMENCED WITHIN NINETY
(90) DAYS OF THE DEMAND FOR ARBITRATION; FURTHER, THE ARBITRATOR SHALL ONLY,
UPON A SHOWING OF CAUSE, BE PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING
FOR UP TO AN ADDITIONAL SIXTY (60) DAYS.
B. RESERVATION OF RIGHTS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO:
(I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF LIMITATION
OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A WAIVER BY
THE LENDER OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF THE LENDER
HERETO: (A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF,
OR (B) TO FORECLOSE AGAINST ANY REAL OR PERSONAL PROPERTY COLLATERAL, OR (C) TO
OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT LIMITED
TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A RECEIVER. THE
LENDER MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE UPON SUCH PROPERTY, OR
OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR AFTER THE
PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS AGREEMENT.
NEITHER THIS EXERCISE OF SELF HELP REMEDIES NOR THE INSTITUTION OR MAINTENANCE
OF AN ACTION FOR FORECLOSURE OR PROVISIONAL OR ANCILLARY REMEDIES SHALL
CONSTITUTE A WAIVER OF THE RIGHT OF ANY PARTY, INCLUDING THE CLAIMANT IN ANY
SUCH ACTION, TO ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING
RESORT TO SUCH REMEDIES.
10. Multiple Counterparts. This First Amendment may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same agreement, and any of the parties hereto may execute this First Amendment
by signing any such counterpart.
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11. Signatures of Support Parties. By signing below where indicated,
the undersigned Support Parties each (a) acknowledge this First Amendment and
the Credit Agreement as amended hereby; (b) agree with the terms, conditions and
amendments contained in this First Amendment and the Credit Agreement as amended
hereby as they relate to the Support Agreement, including without limitation,
the amended definitions of "Termination Date" and "Successful Rights Offering"
as set forth in this First Amendment; (c) agree that the Support Agreement shall
be amended as follows: (i) the term "Target Date" as used in the Support
Agreement shall be amended to be August 27, 1999, (ii) the word "extended,"
shall be inserted after the comma between the words "increased" and "reduced"
contained on the first line of clause c of Section 1 of the Support Agreement,
(iii) the word "maturity" shall be inserted between the words "to" and "shall"
contained on the second line of such clause c, (iv) the phrase "Suite 2700"
shall be replaced with "Suite 2250" under the address for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
or ▇▇▇▇ ▇▇▇▇ contained in Section 5 of the Support Agreement, (v) the name of
the "Bank" shall be changed to "NationsBank, N.A. (successor in interest by
merger to NationsBank of Texas, N.A.)" and (vi) the Support Agreement shall be
deemed to be further amended wherever necessary in order to continue the
obligations of Support Parties contained in the Support Agreement and conform to
the changes reflected in this First Amendment; and (d) confirm their continuing
obligations under the Support Agreement, as amended hereby, which shall continue
in full force and effect as contemplated therein and herein, until the
Obligation has been paid in full and Lender shall have no further commitment to
make Advances.
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THE CREDIT AGREEMENT, AS AMENDED BY THIS FIRST AMENDMENT, AND THE LOAN PAPERS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES 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.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be executed to be effective as of the date and year first above written.
LENDER:
NATIONSBANK, N.A.
By:
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Senior Vice President
BORROWER:
CRESCENT OPERATING, INC., a Delaware corporation
By:
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▇▇▇▇ ▇▇▇▇▇▇▇, Vice President and Secretary
SUPPORT PARTIES:
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