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EXHIBIT 10.103
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of December 20, 0000, xxxxxxx XXXXXXXX XXXX XXXXXX
EQUITIES LIMITED PARTNERSHIP, a Delaware limited partnership (the "Lender") and
CRESCENT DEVELOPMENT MANAGEMENT CORP., a Delaware corporation (the "Borrower") .
RECITALS
WHEREAS, the Borrower and the Lender entered into that Amended and
Restated Credit Agreement dated as of January 1, 1999 (the "Credit Agreement");
defined terms used herein but not herein defined have the meanings ascribed to
those terms in the Credit Agreement; and
WHEREAS, Section 4.3(b) of the Credit Agreement provides that Borrower
may not use Proceeds from Advances after January 1, 1999, to make capital
contributions to, among other things, East West Resort Development III, L.L.L.
P. ("EWRD 3") for the Eagle Ranch Project in an amount exceeding the Remaining
Project Equity Advance for the Project as shown in Schedule A to the Credit
Agreement (which, as of January 1, 1999, was $435,000); and
WHEREAS, the General Partner of EWRD 3 has appealed to Borrower to make
an additional capital contribution of $8 million, all of which will be applied
exclusively towards completion of the Eagle Ranch Project; and
WHEREAS, the Borrower desires to make such $8 million additional
capital contribution to EWRD 3 exclusively for the Eagle Ranch Project; and the
Borrower has requested that Lender agree to increase the Commitment Amount by
Eight Million Dollars ($8,000,000) on the condition that -- and that the Lender,
notwithstanding Section 4.3(b) of the Credit Agreement, consent that -- all of
such additional loaned funds shall be contributed to EWRD 3 exclusively for
application towards completion of the Eagle Ranch Project; and
WHEREAS, the Lender is willing, on the terms and subject to the
conditions set forth in the Credit Agreement as amended by this Amendment, to
modify and increase the Commitment Amount and to make the Loan in a maximum
aggregate principal amount at any one time outstanding not to exceed
$56,166,666, from time to time prior to the Commitment Termination Date, and to
consent to the Borrower making an additional contribution of $8 million to EWRD
3 to be applied towards completion of the Eagle Ranch Project; and
WHEREAS, except as expressly amended by this Amendment or other
instruments executed pursuant hereto, the Loan Documents shall remain in full
force and effect in accordance with their respective terms;
NOW, THEREFORE, the parties hereto agree as follows:
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1. Amendment of Sections 2.1 and 2.3 and Addition of Section 2.5
(Commitment, Note, and Eagle Ranch Component).
(a) The first and second sentences of Section 2.1 of the Credit
Agreement are amended and restated in their entireties as follows:
"On the terms and subject to the conditions of this Agreement
(including, without limitation, Article V, Section 2.5 and Section
4.3), the Lender agrees, until the Commitment Termination Date, to make
advances under the Loan to the Borrower up to an aggregate outstanding
principal amount of Fifty-Six Million One Hundred Sixty-Six Thousand
Six Hundred Sixty-Six and No/100 Dollars ($56,166,666) (the "Commitment
Amount") pursuant to Section 2.2. Prior to the available Commitment
Termination Date but subject to Section 2.5, the Borrower may repay and
reborrow up to the full amount of the Commitment Amount in accordance
with the terms hereof."
(b) Section 2.3 of the Credit Agreement is amended and restated in its
entirety as follows:
"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 Fifty-Six Million One Hundred Sixty-Six Thousand
Six Hundred Sixty-Six and No/100 Dollars ($56,166,666), which modifies,
restates, replaces and substitutes for that Note dated January 1, 1999,
made by the Borrower in favor of the Lender, which itself modified,
restated, replaced and substituted for that Note dated May 8, 1998,
made by the Borrower in favor of the Lender, which itself modified,
restated, replaced and substituted for that Note dated April 15, 1997,
made by Borrower in favor of Lender, which itself modified, restated,
replaced and substituted for that Note dated August 11, 1995."
(c) The following Section 2.5 is added to the Credit Agreement:
Section 2.5 Eagle Ranch Component of Commitment. As shown in
Schedule A hereto, the Eagle Ranch Project (the "Eagle Ranch Project")
of East West Resort Development III, L. P. ("EWRD 3") is an Approved
Project. Notwithstanding anything in Section 2.1 to the contrary, the
Borrower agrees its right to borrow the Eight Million Dollar
($8,000,000) increase in the Commitment effected by that First
Amendment to the Amended and Restated Credit Agreement dated December
20, 1999 (the "First Amendment"), which portion of the Commitment is
called the "Eagle Ranch Component of Commitment" shall be governed by
this Section 2.5 and Section 4.3(c). Each Advance made after December
20, 1999, to fund the Eagle Ranch Project shall be considered an
Advance against the Eagle Ranch Component of Commitment and is called
an "Eagle Ranch Advance"; the aggregate amount of all Eagle Ranch
Advances made after December 20, 1999 shall not exceed Eight Million
Dollars ($8,000,000). All
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Eagle Ranch Principal Payments (as defined in Article III) shall
reduce, dollar-for-dollar, the Eagle Ranch Component of the Commitment;
but after the Eagle Ranch Component of the Commitment has been reduced
to zero, Eagle Ranch Principal Payments shall not reduce the
Commitment."
2. Addition of Section 3.1.4 (Eagle Ranch Payments). The following
Section 3.1.4 is added to the Credit Agreement:
Section 3.1.4 Eagle Ranch Payments. All mandatory payments
made pursuant to Section 3.1.2 out of Distributions from EWRD 3
attributable to the Eagle Ranch Project are called "Eagle Ranch
Payments"; all amounts of Eagle Ranch Payments applied to the
outstanding principal balance of the Loan are called "Eagle Ranch
Principal Payments."
3. Amendment of Sections 4.3(a) and 4.3(b) and addition of Section
4.3(c).
(a) At the end of Section 4.3(a), the word "and" is deleted.
(b) At the beginning of Section 4.3(b), there are added the words
"subject to Section 4.3(c)," and the period at the end of the final sentence of
Section 4.3(b) is deleted and replaced by a semicolon followed by the word
"and".
(c) The following Section 4.3(c) is added to the Credit Agreement:
"(c) after December 20, 1999, this Section 4.3(c) and not
Section 4.3(b) shall govern the use of Advances to make capital
contributions to EWRD 3 for the Eagle Ranch Project. The Borrower shall
use each Eagle Ranch Advance solely to make capital contributions to
EWRD 3 exclusively for application towards the Eagle Ranch Project; the
aggregate amount of Eagle Ranch Advances, plus all capital
contributions to Partnerships made prior to December 20, 1999, for the
Eagle Ranch Project, shall not exceed the Project Advance Limit for the
Eagle Ranch Project, which shall be $25,100,000; no Eagle Ranch Advance
may be used for any other purpose; and the Borrower may not use
proceeds from any Advance other than Eagle Ranch Advances to make
capital contributions to EWRD 3 for the Eagle Ranch Project."
4. Amendment of Schedule A. Schedule A to the Credit Agreement is
deleted and Schedule A attached to this Amendment is substituted therefor.
5. 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 Amendment
and the transactions contemplated hereby.
6. Execution in Counterparts, Effectiveness, etc. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
an original and all of which shall
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constitute together but one and the same agreement. This Amendment, together
with each other Loan Document executed in connection with this Amendment, 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.
7. Governing Law: Entire Agreement. THIS AMENDMENT, THE NOTE GIVEN IN
CONNECTION HEREWITH, 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 Amendment, the Note given in replacement of that promissory note made
January 1, 1999, 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.
8. REIT Compliance. Borrower acknowledges that Lender's affiliate,
Crescent Real Estate Equities Company ("Crescent"), is a real estate investment
trust under the Internal Revenue Code of 1986, as amended (the "Code"). Borrower
agrees that it will not knowingly or intentionally take or omit to take any
action which Borrower knows would or could result in Crescent being disqualified
from treatment as a real estate investment trust under the Code.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
BORROWER: CRESCENT DEVELOPMENT MANAGEMENT CORP.,
a Delaware corporation
By:
Name:
Title:
LENDER: CRESCENT REAL ESTATE EQUITIES LIMITED
PARTNERSHIP, a Delaware limited partnership
By: Crescent Real Estate Equities, Ltd.,
Sole general partner
By:
Name:
Title:
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LINE OF CREDIT NOTE
$56,166,666.00 December 20, 1999
FOR VALUE RECEIVED, CRESCENT DEVELOPMENT MANAGEMENT CORP., a Delaware
corporation ("Borrower") promises to pay to CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware limited partnership ("Lender"), at 000 Xxxx
Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000, the principal sum of FIFTY-SIX
MILLION ONE HUNDRED SIXTY-SIX THOUSAND SIX HUNDRED SIXTY-SIX AND NO/100 DOLLARS
($56,166,666.00), 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 renews, modifies, replaces and is given in substitution for
that certain Note dated January 1, 1999, in the principal amount of
$48,166,666.00 made by Borrower and payable to Lender and is the "Note" referred
to in the Amended and Restated Credit Agreement dated January 1, 1999, executed
by Lender and Borrower as amended by that First Amendment to Amended and
Restated Credit Agreement of even date herewith (the "Credit Agreement").
Borrower may borrow, repay and reborrow amounts under this Note as permitted by
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 III 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 which 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.
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 which 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
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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 303 or Chapter 346 of the Texas Finance Code.
EXCEPT WHERE FEDERAL LAW IS APPLICABLE (INCLUDING, WITHOUT LIMITATION,
ANY FEDERAL USURY CEILING OR OTHER FEDERAL LAW WHICH, FROM TIME TO TIME, IS
APPLICABLE TO THE INDEBTEDNESS EVIDENCED HEREIN AND WHICH 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.
THIS NOTE, TOGETHER WITH THE CREDIT AGREEMENT AND EACH OTHER
LOAN DOCUMENT REFERENCED HEREIN OR THEREIN, REPRESENT THE FINAL AGREEMENTS
BETWEEN THE PARTIES WITH RESPECT TO THE LOAN 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.
CRESCENT DEVELOPMENT MANAGEMENT CORP.,
a Delaware corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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CRESCENT DEVELOPMENT MANAGEMENT CORP.
000 Xxxx Xxxxxx Xxxxx, Xxxxxx 0000
Xxxx, Xxxxxxxx 00000
December 00, 0000
Xxxxxxxx Xxxx Xxxxxx Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Re: Amended and Restated Credit Agreement dated January 1,
1999, as amended ("Credit Agreement") between Crescent
Development Management Corp., as borrower, and Crescent Real
Estate Equities Limited Partnership, as lender
Gentlemen:
The undersigned has requested that the Commitment Amount (as defined in the
Credit Agreement) be increased by $8 million to $56,166,666, and in that
connection that you execute and deliver a First Amendment to Amended and
Restated Credit Agreement, dated as of December 20, 1999, and accept, in place
of the Note in the principal amount of $48,166,666 dated January 1, 1999, made
by the undersigned, a new Note in the principal sum of $56,166,666 made by the
undersigned as of the date of this letter.
To induce you to execute that First Amendment to Amended and Restated Credit
Agreement and accept the new Note in substitution for the prior Note, the
undersigned hereby acknowledges, represents and warrants, confirms and agrees
that (i) the new Note constitutes a renewal, extension, modification and
rearrangement of the indebtedness evidenced by the prior Note and accordingly
that the security interests granted by that Amended and Restated Security
Agreement dated January 1, 1999 (the "Security Agreement"), in the collateral
therein described continue to be first lien perfected security interests and
pledges securing payment and performance of the new Note and (ii) the Security
Agreement continues in full force and effect, enforceable in accordance with its
terms.
THIS LETTER SHALL CONSTITUTE AN AMENDMENT TO THE SECURITY AGREEMENT AND YOU
SHALL BE ENTITLED TO ENJOY THE BENEFITS OF "SECURED PARTY" UNDER, AND THE
UNDERSIGNED SHALL BE BOUND BY ALL OF THE OBLIGATIONS OF "DEBTOR" UNDER, SUCH
SECURITY AGREEMENT AS IF THE SAME WERE RESTATED HEREIN. Borrower agrees upon
request of Lender to execute and deliver an amendment to the Security Agreement
incorporating this amendment.
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Crescent Real Estate Equities Limited Partnership
December 20, 1999
Page 2
To signify your receipt and acceptance of this letter of inducement, please sign
this letter in the space provided below and return a copy to the undersigned.
Very truly yours,
Crescent Development Management Corp.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
RECEIVED AND ACCEPTED:
Crescent Real Estate Equities Limited Partnership
By: Crescent Real Estate Equities, Ltd.
By:
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Its:
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