EXHIBIT 10.142
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (the "Third Amendment") is entered into
effective as of August 27, 2001, by and among CRESCENT OPERATING, INC., a
Delaware corporation ("Borrower") and BANK OF AMERICA, N.A., a national banking
association ("Lender"), with the acknowledgment, confirmation, approval and
agreement of the undersigned "Support Parties" (herein so called) as set forth
herein below. Such Support Parties are signing this Third Amendment solely for
the purposes set forth in Section 11 of this Third Amendment.
WITNESSETH:
WHEREAS, Borrower and Lender are parties to that certain Credit Agreement dated
as of August 27, 1997 (the "Original Credit Agreement") as amended by that
certain First Amendment to Credit Agreement dated effective as of August 27,
1998 (the "First Amendment"), and by that certain Second Amendment to Credit
Agreement dated effective as of August 27, 1999 (the "Second Amendment") (the
Original Credit Agreement as amended by the First Amendment and the Second
Amendment is referred to in this Third Amendment as the "Credit Agreement") and
Borrower, Lender and Support Parties are parties to that certain Support
Agreement of even date with the Original Credit Agreement, as previously amended
and confirmed as set forth in the First Amendment and Second Amendment (the
"Support Agreement");
WHEREAS, Borrower and Support Parties have requested that Lender agree to a
short term renewal of the credit facility evidenced by the Credit Agreement and
extension of the "Termination Date" as currently defined in the Credit Agreement
to evidence a senior secured credit facility in favor of Lender and agree to
other amendments to the Credit Agreement, Support Agreement and other Loan
Papers and matters as set forth herein, and Lender 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 Third
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 Third Amendment shall have the
same meanings as assigned to them in the Credit Agreement when used in this
Third Amendment, unless the context hereof shall otherwise require or provide.
2. Representations and Warranties. In order to induce Lender to enter into this
Third Amendment, Borrower represents and warrants to Lender that:
A. This Third 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;
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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 Third Amendment, are true and correct as of
the date hereof.
3. Amendment to Credit Agreement. In connection with the short term renewal and
extension of the credit facility evidenced by the Credit Agreement, as amended
by this Third Amendment, and the Loan Papers, the definition of the term
"Termination Date" as set forth in Paragraph 1 of the Credit Agreement and is
hereby amended and restate in its entirety to read as follows:
Termination Date means the earlier to occur of the following dates: (a) November
27, 2001 ; 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.
4. The promissory note in the face principal amount of $15,000,000.00 dated
August 27, 1999 executed by Borrower and payable to Lender, evidencing a renewal
and extension of that certain promissory note in the face principal amount of
$15,000,000.00 dated August 27, 1997,executed by Borrower and payable to Lender
(or its predeccssors in interest) and in connection with the Original Credit
Agreement, is hereby renewed and extended to be evidenced by that certain
promissory note dated of even date herewith in the face principal amount of
$15,000,000.00 executed by Borrower and payable to Lender (sometimes referred to
in this Third Amendment and in connection herewith as the "Second Short Term
Renewal Note"), which the parties agree and acknowledge to be the "Note" as
contemplated in Paragraph 4(a) of the Credit Agreement and a "Loan Paper" as
defined in the Credit Agreement.
5. Conditions Precedent. This Third Amendment and the obligations of Lender
hereunder are subject to the conditions precedent that Lender shall have
received from Borrower, together with this Third Amendment duly executed by
Borrower, Xxxxxxx X. Xxxxxxxxx and Xxxx Xxxx: (i) the Short Term Renewal Note,
duly executed by Borrower, and anyother documents requested by Lender prior to
closing in connection herewith, in form and substance satisfactory to Lender and
its counsel, and (ii) 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 Third Amendment.
6. 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 Third
Amendment and the Credit Agreement, as amended hereby.
7. Scope of Amendments. Any and all other provisions of the Cred1t 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 Third Amendment.
8. 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
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by this Third Amendment, the Note, the Loan Papers or any of the documents
referred to herein or therein.
9. Governing Law. This Third 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.
10. 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 HA VING JURJSDICTION 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 EQUALLY 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
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ARBITRATE THE MERITS OF THE CONTROVERSY OR CLAIM OCCASIONING RESORT TO SUCH
REMEDIES.
11. Multiple Counterparts. This Third 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 Third Amendment by
signing any such counterpart.
12. Signatures of Support Parties. By signing below where indicated, the
undersigned Support Parties each (a) acknowledge this Third Amendment and the
Credit Agreement a.s amended hereby; (b) agree with the terms, conditions and
amendments a contained in this Third Amendment and the Credit Agreement as
amended hereby as they relates to the Support Agreement , including without
limitation, the amended definition of "Termination Date" as set Third in this
Third Amendment; (c) agree that the Support Agreement shall be deemed and
amended wherever necessary in order to continue the obligations of the
undersigned Support Partners contained in the Support Agreement and confirm to
the changes reflected in this Third 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.
THE CREDIT AGREEMENT AND THE SUPPORT AGREEMENT, AS EACH IS AMENDED BY THIS Third
AMENDMENT, AND THE OTHER LOAN PAPERS REPRESENT THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENT OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be
executed to be effective as of the date and year first above written.
LENDER
BANK OF AMERICA
By: /s/
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Xxxx X. Xxxxxxx, Senior Vice President
BORROWER
CRESCENT OPERATING, INC., a Delaware corporation
By: /s/
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Xxxx Xxxxxxx, Executive Vice President
and Chief Operation Officer
SUPPORT PARTIES:
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/s/
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XXXXXXX X. XXXXXXXXX
/s/
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XXXX XXXX
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