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EXHIBIT 10.100
THIRD AMENDMENT TO
LINE OF CREDIT
CREDIT AND SECURITY AGREEMENT
THIS THIRD AMENDMENT TO LINE OF CREDIT CREDIT AND SECURITY AGREEMENT (this
"Amendment") is made and entered into effective as of March 11, 0000 xxxxxxx
XXXXXXXX XXXX XXXXXX EQUITIES LIMITED PARTNERSHIP, a Delaware limited
partnership (the "Lender"), and CRESCENT OPERATING, INC., a Delaware corporation
(the "Borrower").
R E C I T A L S:
A. The parties executed that certain Line of Credit Credit and Security
Agreement dated as of May 21, 1997, as amended by that certain First Amendment
to Line of Credit Credit and Security Agreement dated as of August 11, 1998 and
by that certain Second Amendment to Line of Credit Credit and Security Agreement
dated as of September 21, 1998 (collectively, the "Original Agreement"). All
capitalized terms not otherwise defined in this Amendment will have the same
meaning as described in the Original Agreement.
B. The Borrower has requested that the Lender make a loan to it in the
principal amount of $19,500,000, the proceeds of which are to be used to
accomplish the acquisition of various assets associated with the cold storage
business through a joint venture entity to be established and funded together
with Vornado Operating Company (the "Americold Loan").
C. In order to induce the Lender to make the Americold Loan, the Borrower
has agreed to modify the Original Agreement to cross default and cross
collateralize the Loan with the Americold Loan and to reduce the maximum
aggregate principal amount of the Loan to $17,200,000.
D. The Borrower is willing to modify the Original Agreement for such
purpose on the terms and conditions set forth herein.
In consideration of the mutual covenants set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Section 1.1. The following definitions are hereby added to Section 1.1
of the Original Agreement to read as follows:
"Americold Credit Agreement" means the Credit and Security Agreement
dated as of March 11, 1999 between the Borrower and the Lender, as such
agreement may be amended, supplemented or otherwise modified from time to
time.
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"Americold Note" means the promissory note of the Borrower payable to the
order of the Lender under the terms of the Americold Credit Agreement, as the
same may be modified, supplemented, or amended from time to time, and any note
or notes issued in substitution or replacement therefor or in addition thereto.
2. Section 1.1. The definitions of "Note" and "Secured Obligations" in
Section 1.1 of the Original Agreement are hereby amended in their entirety to
read as follows:
"Note" means the amended and restated promissory note of the Borrower
payable to the order of the Lender under the terms of this Agreement, as
the same may be modified, supplemented, or amended from time to time, and
any note or notes issued in substitution or replacement therefor or in
addition thereto, substantially in the form of Exhibit B hereto, in the
maximum principal amount from time to time outstanding of up to Seventeen
Million Two Hundred Thousand Dollars ($17,200,000), evidencing the
obligation of the Borrower to repay the Loan, as modified, supplemented or
amended from time to time.
"Secured Obligations" means the collective reference to the unpaid
principal of and interest on the Note, the Term Note, the COPI Note, the
Americold Note, and all other obligations and liabilities of the Borrower
to the Lender, whether direct or indirect, absolute or contingent, due or
to become due, or now existing or hereafter incurred, which may arise
under, out of, or connection with, this Agreement, the Term Loan Credit and
Security Agreement, the COPI Credit Agreement, the Americold Credit
Agreement, the Note, the Term Note, the COPI Note, the Americold Note, the
Pledge Agreement, or any other document, made, delivered or given in
connection therewith, in each case whether on account of principal,
interest, reimbursement obligations, fees, indemnities, costs, expenses or
otherwise.
3. Section 2.1. Section 2.1(a) of the Original Agreement is hereby amended
by deleting the phrase "Thirty Million Four Hundred Thousand Dollars
($30,400,000)" and inserting the phrase "Seventeen Million Two Hundred Thousand
Dollars ($17,200,000)" in lieu thereof.
4. Section 4.1. Section 4.1 of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
As security for the prompt payment, performance, and observance in
full of the Secured Obligations, the Borrower hereby pledges and assigns to
the Lender, and grants to the Lender a continuing security interest in and
lien on all of the following property now owned or at any time hereafter
acquired by the Borrower or in which the Borrower now has or at any time in
the future may acquire any right, title or interest (the "Collateral"):
i) all Accounts;
ii) all Chattel Paper;
iii) all Documents;
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iv) all Equipment;
v) all General Intangibles;
vi) all Instruments;
vii) all Inventory;
viii) all books and recordings pertaining to the Collateral; and
ix) to the extent not otherwise included, all Proceeds and products of
any of the foregoing, in any form (whether cash or non-cash) and all
collateral security and guarantees given by any Person with respect
to any of the foregoing.
5. Section 7.1. The word "or" is hereby added to the end of subsection
7.1(j) of the Original Agreement, and the following paragraph (k) is hereby
added to Section 7.1 of the Original Agreement to read as follows:
(k) an "Event of Default" under the Americold Credit Agreement;
6. Section 8.11. Section 8.11 of the Original Agreement is hereby amended
and restated in its entirety to read as follows:
The parties agree that the Lender shall have the right to apply the
proceeds of any Collateral under this Agreement, the Term Loan Credit and
Security Agreement, the COPI Credit Agreement, or the Americold Credit
Agreement in its sole discretion, against the Secured Obligations under
this Agreement, the Secured Obligations under the Term Loan Credit and
Security Agreement, the Secured Obligations under the COPI Credit
Agreement, or the Secured Obligations under the Americold Credit Agreement.
7. Remainder of Original Agreement. Except as amended hereby, the Original
Agreement shall continue in full force and effect in the form that was effective
immediately before the execution of this Amendment.
8. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
document.
9. Binding Effect. This Amendment shall be binding upon and inure to the
benefit of the respective successors and assigns of the parties hereto.
10. Governing Law and Severability. This Amendment shall be governed by and
construed in accordance with the laws of the State of Texas. Whenever possible,
each provision hereof shall be interpreted in such manner as to be effective and
valid under applicable law.
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IN WITNESS WHEREOF, the parties below have executed this Amendment
effective as of the date first written above.
CRESCENT OPERATING, INC.
By:
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Name:
Title:
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: Crescent Real Estate Equities, Ltd.,
its general partner
By:
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Name:
Title:
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