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EXHIBIT 10.116
ASSIGNMENT OF INTEREST IN EAST WEST RESORTS, LLC
(CDMC to COPI)
This Assignment of Interest in East West Resorts, LLC (this
"Assignment") is made by and between Crescent Development Management Corp., a
Delaware corporation ("Assignor"), and COPI Colorado, L.P., a Delaware limited
partnership ("Assignee"), with respect to East West Resorts, LLC, a Delaware
limited liability company ("Company").
1. Assignee hereby covenants, warrants, and represents to Assignor and
the Company that (a) Assignee has undertaken such independent due diligence
activities that it felt necessary in order to determine the viability of the
Company's current and proposed activities and (b) Assignee acknowledges that no
warranties or representations, express or implied, have been made by Assignor or
the Company except as expressly set forth herein.
2. Assignor covenants, represents and warrants to Assignee that (a) it
is the owner of the Interest in the Company being conveyed hereby; (b) it has
the unrestricted right and power to convey the Interest to Assignee; and (c) it
is conveying same to Assignee, free and clear of all liens, encumbrances and
other burdens of every nature whatsoever.
3. Assignee accepts and agrees to be bound by the terms and conditions
of the Third Amended and Restated Operating Agreement of the Company dated July
1, 1999 (the "Operating Agreement"), including the obligation to arbitrate
disputes as set forth in the Operating Agreement and the Arbitration Agreement
attached thereto.
4. Based on and in reliance upon the foregoing, Assignor does hereby
transfer, assign and convey to Assignee 10% of its Common Interest and Preferred
Interest in the Company, including the capital account and membership rights
related thereto, and does hereby bind itself, its heirs, successors and assigns,
to warrant and forever defend, all and singular, title to the interests and
rights herein assigned to Assignee, its successors and assigns, against every
person whomsoever lawfully claiming or to claim the same, or any part thereof,
by, through or under Assignor.
5. Notwithstanding the last paragraph of Section 13.4 of the Operating
Agreement, this Assignment shall be effective as of 11:58 p.m. on December 31,
2000 (the "Effective Time").
6. By signing below, the Company, the Manager, and the other Members
make the waivers, acknowledgements, consents and agreements set forth below.
7. This Assignment may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED on December 28, 2000, to be effective as of the Effective
Time.
ASSIGNOR:
CRESCENT DEVELOPMENT MANAGEMENT CORP.
By:
------------------------------------------
Name:
----------------------------------------
Title:
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ASSIGNEE:
COPI COLORADO, L.P.
By: Crescent Operating, Inc., its general
partner
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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WAIVER, ACKNOWLEDGEMENT, CONSENT AND AGREEMENT:
The Company and the Manager hereby (i) waive the conditions set forth
in Section 13.4[a] and [b] of the Operating Agreement, (ii) acknowledge and
agree that this Assignment satisfies the conditions set forth in Section 13.4[c]
and[d] of the Operating Agreement, (iii) consent to the admission of Assignee as
a substitute Member of the Company, and (iv) notwithstanding the last paragraph
of Section 13.4 of the Operating Agreement, the Company and the Manager
acknowledge and agree that this Assignment shall be effective as of the
Effective Time.
COMPANY:
EAST WEST RESORTS, LLC.
By: East West Resorts Management III, LLC, its Manager
By: HF Holdings Corp., its Manager
By:
------------------------------------------
Xxxxx X. Xxxxxxxx, III, President
MANAGER:
EAST WEST RESORTS MANAGEMENT III, LLC.
By: HF Holdings Corp., its Manager
By:
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Xxxxx X. Xxxxxxxx, III, President
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WAIVER AND AGREEMENT:
The undersigned members of the Company hereby (i) waive their right of
first refusal set forth in Section 13.3 of the Operating Agreement with respect
to this Assignment and (ii) notwithstanding the last paragraph of Section 13.4
of the Operating Agreement, acknowledge and agree that this Assignment shall be
effective as of the Effective Time.
EAST WEST RESORTS MANAGEMENT, INC.
By:
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Xxxxx X. Xxxxxxxx, III, President
EAST WEST RESORTS MANAGEMENT III, LLC.
By: HF Holdings Corp., its Manager
By:
------------------------------------------
Xxxxx X. Xxxxxxxx, III, President
HF MANAGEMENT, LLC
By:
--------------------------------------------------
Xxxxx X. Xxxxxxxx, III, Manager
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ASSIGNMENT OF INTEREST IN EAST WEST RESORTS, LLC
(COPI to CDMC II)
This Assignment of Interest in East West Resorts, LLC (this
"Assignment") is made by and between COPI Colorado, L.P., a Delaware limited
partnership ("Assignor"), and Crescent Development Management Corp. II, a
Delaware corporation ("Assignee"), with respect to East West Resorts, LLC, a
Delaware limited liability company ("Company").
1. Assignee hereby covenants, warrants, and represents to Assignor and
the Company that (a) Assignee has undertaken such independent due diligence
activities that it felt necessary in order to determine the viability of the
Company's current and proposed activities and (b) Assignee acknowledges that no
warranties or representations, express or implied, have been made by Assignor or
the Company except as expressly set forth herein.
2. Assignor covenants, represents and warrants to Assignee that (a) it
is the owner of the Interest in the Company being conveyed hereby; (b) it has
the unrestricted right and power to convey the Interest to Assignee; and (c) it
is conveying same to Assignee, free and clear of all liens, encumbrances and
other burdens of every nature whatsoever.
3. Assignee accepts and agrees to be bound by the terms and conditions
of the Third Amended and Restated Operating Agreement of the Company dated July
1, 1999 (the "Operating Agreement"), including the obligation to arbitrate
disputes as set forth in the Operating Agreement and the Arbitration Agreement
attached thereto.
4. Based on and in reliance upon the foregoing, Assignor does hereby
transfer, assign and convey to Assignee 100% of its Common Interest and
Preferred Interest in the Company, including the capital account and membership
rights related thereto, and does hereby bind itself, its heirs, successors and
assigns, to warrant and forever defend, all and singular, title to the interests
and rights herein assigned to Assignee, its successors and assigns, against
every person whomsoever lawfully claiming or to claim the same, or any part
thereof, by, through or under Assignor.
5. Notwithstanding the last paragraph of Section 13.4 of the Operating
Agreement, this Assignment shall be effective as of 11:59 p.m. on December 31,
2000 (the "Effective Time").
6. By signing below, the Company, the Manager, and the other Members
make the waivers, acknowledgements, consents and agreements set forth below.
7. This Assignment may be executed in counterparts, each of which shall
constitute an original and all of which, when taken together, shall constitute
one agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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EXECUTED on December 29, 2000, to be effective as of the Effective
Time.
ASSIGNOR:
COPI COLORADO, L.P.
By: Crescent Operating, Inc., its
general partner
By:
--------------------------------
Name:
------------------------------
Title:
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ASSIGNEE:
CRESCENT DEVELOPMENT MANAGEMENT CORP. II
By:
-----------------------------------------
Name:
---------------------------------------
Title:
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WAIVER, ACKNOWLEDGEMENT, CONSENT AND AGREEMENT:
The Company and the Manager hereby (i) waive the conditions set forth
in Section 13.4[a] and [b] of the Operating Agreement, (ii) acknowledge and
agree that this Assignment satisfies the conditions set forth in Section 13.4[c]
and[d] of the Operating Agreement, (iii) consent to the admission of Assignee as
a substitute Member of the Company, and (iv) notwithstanding the last paragraph
of Section 13.4 of the Operating Agreement, the Company and the Manager
acknowledge and agree that this Assignment shall be effective as of the
Effective Time.
COMPANY:
EAST WEST RESORTS, LLC.
By: East West Resorts Management III, LLC, its Manager
By: HF Holdings Corp., its Manager
By:
------------------------------------------
Xxxxx X. Xxxxxxxx, III, President
MANAGER:
EAST WEST RESORTS MANAGEMENT III, LLC.
By: HF Holdings Corp., its Manager
By:
---------------------------------------------------
Xxxxx X. Xxxxxxxx, III, President
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WAIVER AND AGREEMENT:
The undersigned members of the Company hereby (i) waive their right of
first refusal set forth in Section 13.3 of the Operating Agreement with respect
to this Assignment and (ii) notwithstanding the last paragraph of Section 13.4
of the Operating Agreement, acknowledge and agree that this Assignment shall be
effective as of the Effective Time.
EAST WEST RESORTS MANAGEMENT, INC.
By:
---------------------------------------------------
Xxxxx X. Xxxxxxxx, III, President
EAST WEST RESORTS MANAGEMENT III, LLC.
By: HF Holdings Corp., its Manager
By:
------------------------------------------
Xxxxx X. Xxxxxxxx, III, President
HF MANAGEMENT, LLC
By:
--------------------------------------------------
Xxxxx X. Xxxxxxxx, III, Manager
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ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (this "Agreement")
dated as of December 31, 2000, by and among CRESCENT DEVELOPMENT MANAGEMENT
CORP., a Delaware corporation ("CDMC"), CRESCENT DEVELOPMENT MANAGEMENT CORP.
II, a Delaware corporation ("CDMC II"), and CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware limited partnership ("Lender").
RECITALS:
WHEREAS, Lender and CDMC entered into a Credit Agreement dated as of
January 1, 1998 (the "Credit Agreement"), whereby Lender extended to CDMC a line
of credit loan (the "1998 Loan"), in a maximum aggregate principal amount at any
one time outstanding not to exceed $22,920,000, pursuant to a Credit Note dated
January 1, 1998 (the "1998 Credit Note") made by CDMC payable to Lender, the
proceeds of which were used from time to time exclusively for working capital
purposes of CDMC in order to provide funds for making capital contributions to
East West Resorts, LLC, a Delaware limited liability company (the "Company");
WHEREAS, Lender also extended CDMC a loan (the "1996 Term Loan") in the
amount of $3,100,000 pursuant to a Promissory Note dated February 29, 1996 (the
"1996 Term Note") made by CDMC payable to Lender;
WHEREAS, payment of the 1998 Loan and the 1996 Term Loan is secured by
all of CDMC's interest in the Company ("Membership Interest") pursuant to an
Amended and Restated Security Agreement dated January 1, 1998 between Lender and
CDMC (the "Security Agreement");
WHEREAS, effective as of 11:58 p.m. on December 31, 2000, CDMC desires
to transfer 10% of its Membership Interest to COPI Colorado, L.P., a Delaware
limited partnership ("COPI Colorado"), and 90% of its Membership Interest to
Lender, in their capacities as shareholders of CDMC, in each case subject to the
1998 Loan and the 1996 Term Loan, and in the case of Lender, without merger of
the 1998 Loan or the 1996 Term Loan;
WHEREAS, effective as of 11:59 p.m. on December 31, 2000, COPI Colorado
and Lender desire to transfer all of their respective Membership Interest to
CDMC II, in each case subject to the 1998 Loan and the 1996 Term Loan;
WHEREAS, as of 11:59 p.m., December 31, 2000, the outstanding principal
balance of the 1998 Loan is $17,378,572 and the accrued and unpaid interest on
the 1998 Loan is $2,112,471.46, which accrued interest will not be paid by CDMC
but, instead, will be added to the outstanding principal balance of the 1998
Loan on January 1, 2001;
WHEREAS, as of 11:59 p.m., December 31, 2000, the outstanding principal
balance of the 1996 Term Loan is $2,350,000 and the accrued and unpaid interest
on the 1996 Term Loan is $72,019.22, which accrued interest will be paid by
CDMC;
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WHEREAS, Lender has agreed to consent to the above-described transfers
of the Membership Interest subject to CDMC II's assumption of the obligations
under the Credit Agreement, the 1996 Term Note, the 1998 Credit Note and the
Security Agreement; and
WHEREAS, in connection with the transactions described herein, the
parties hereto desire to make the assignment and assumption and grant the
consent more particularly described herein.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual promises, covenants and agreements set forth herein and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:
1. Recitals. The recitals set forth herein are true and accurate and
are incorporated herein by reference.
2. Assignment and Assumption. CDMC hereby assigns to CDMC II, and CDMC
II hereby assumes, all of the rights and obligations of CDMC under the Credit
Agreement, the 1996 Term Note, the 1998 Credit Note and the Security Agreement.
CDMC II agrees to execute such Uniform Commercial Code financing statements,
change forms and continuation statements as shall be required by law and as
Lender, in its sole discretion, deems necessary to maintain and continue the
perfection and priority of the security interests under the Security Agreement.
CDMC II represents and warrants that all things necessary to preserve the
perfection and priority of the security interests under the Security Agreement
have been done or will be done timely so as to preserve such perfection and
priority of such security interests.
3. Consent. Lender hereby acknowledges and consents to (a) the
assignment of the Membership Interest from CDMC to COPI Colorado and Lender, (b)
the assignment of the Membership Interest from COPI Colorado and Lender to CDMC
II; (c) the assumption by CDMC II of all the obligations of CDMC under the
Credit Agreement, the 1996 Term Note, the 1998 Credit Note and the Security
Agreement as provided herein, and (d) all of the other transactions contemplated
herein.
4. Ratification. All of the terms, covenants, promises, warranties,
representations and conditions of the Credit Agreement, the 1996 Term Note, the
1998 Credit Note, and the Security Agreement shall remain unmodified and in full
force and effect, after giving effect to this Agreement.
5. Miscellaneous.
(a) Headings. The headings of the articles, sections and
subsections of this Agreement are for convenience and reference only and shall
not be considered a part hereof nor shall they be deemed to limit or otherwise
affect any of the terms or provisions hereof.
(b) Construction. This Agreement shall be construed in
accordance with the laws of the State of Texas without regard to the principles
of conflicts of laws.
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(c) Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and assigns.
(d) Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original but all of which
shall constitute one agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective duly authorized representatives all as of the date
and year first above written.
CRESCENT DEVELOPMENT MANAGEMENT CORP.,
a Delaware corporation
By:
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Name:
----------------------------------------
Title:
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CRESCENT DEVELOPMENT MANAGEMENT CORP. II,
a Delaware corporation
By:
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Name:
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Title:
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CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.,
its general partner
By:
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Name:
-----------------------------------
Title:
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