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EXHIBIT 10.21
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STOCK PURCHASE AGREEMENT
DATED AND DELIVERED AS OF AUGUST 31, 1997, TO BE EFFECTIVE AS OF JULY 31, 1997
BY AND AMONG
CRESCENT OPERATING, INC.,
XXXXXX X. XXXXXXX,
XXXX X. XXXX
AND
XXXXXX XXXXX
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TABLE OF CONTENTS
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ARTICLE I SALE AND TRANSFER OF THE RSSW COMMON STOCK
Section 1.1 Sale of RSSW Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.2 Closing Deliveries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II REPRESENTATIONS AND WARRANTIES OF SELLERS AND ROSESTAR
Section 2.1 Organization, Qualification and Corporate Power . . . . . . . . . . . . . . . . . . . . . . . 4
Section 2.2 Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.3 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.4 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.5 Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.6 Subsidiaries and Joint Ventures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.7 RoseStar Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.8 Business Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.9 Absence of Certain Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.10 No Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.11 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.12 Tax Returns and Audits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.13 Material Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.14 Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.15 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.16 Guarantees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.17 Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.18 Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.19 No Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PURCHASER
Section 3.1 Corporate Existence and Good Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.2 Corporate Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.3 Governmental Authorization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.4 Non-Contravention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.5 No Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
ARTICLE IV ADDITIONAL AGREEMENTS OF THE PARTIES
Section 4.1 Press Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.2 Tax Cooperation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 4.3 Definition of Knowledge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE V MISCELLANEOUS
Section 5.1 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.2 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.3 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 5.4 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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TABLE OF CONTENTS (CONT.)
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Section 5.5 Binding upon Successors and Assigns, Assignment . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.6 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.7 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.8 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.9 Amendment and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.10 No Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.11 Construction of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 5.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SCHEDULE 2.9 Material Adverse Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SCHEDULE 2.10 Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SCHEDULE 2.11 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SCHEDULE 2.14 Material Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is dated and
delivered as of the 31st day of August, 1997, to be effective as of July 31,
1997, by and among Crescent Operating, Inc., a Delaware corporation
("Purchaser"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxx X. Xxxx ("Xxxx") and Xxxxxx
Xxxxx ("Varma") (Xxxxxxx, Xxxx and Varma are collectively referred to herein as
"Sellers").
RECITALS:
A. Sellers are all of the members and managers of RoseStar
Management LLC ("RoseStar"). Sellers entered into that First Amended and
Restated RoseStar-Varma Resolution Agreement dated as of July 31, 1997 (the
"RoseStar-Varma Agreement") pursuant to which Sellers, in their capacities as
all of the managers and members of RoseStar and in their individual capacities
as all of the owners of the outstanding membership interests in RoseStar (the
"Membership Interests"), agreed to sell the Membership Interests to Purchaser.
B. RoseStar owns a 99% nonmanaging member's interest in RoseStar
Southwest, LLC ("Southwest"). The remaining 1% member of Southwest is RSSW
Corp., which is the manager of Southwest ("RSSW"); Sellers are all of the
stockholders and a majority of the directors of RSSW.
C. In connection with the sale by Sellers of the Membership
Interests, Sellers also desire to sell to Purchaser, and Purchaser desires to
purchase, all of the issued and outstanding Common Stock of RSSW owned by
Sellers.
X. Xxxxxxx are all of the stockholders and directors of RSCR
Arizona Corp. ("RSCR").
E. RSCR is the owner of a 1% nonmanaging membership interest in
Canyon Ranch Leasing, LLC ("Canyon Ranch"). RoseStar is the owner of a 99%
managing membership interest in Canyon Ranch. Canyon Ranch is the lessee of
Canyon Ranch-Tucson under a Lease Agreement dated July 26, 1996, (the "Canyon
Ranch Lease") with Canyon Ranch, Inc., which has assigned its right, title and
interest in that lease to Crescent Real Estate Equities Limited Partnership
("Crescent Partnership"). Sellers have guaranteed payment and performance to
Crescent Partnership, under a Limited Guaranty Agreement dated July 26, 1996,
of obligations of Canyon Ranch under the Canyon Ranch Lease, that $2,400,000
FFE Note (so called in the Limited Guaranty Agreement) and that $648,360
Lifeshare Note (so called in the Limited Guaranty Agreement), subject to an
aggregate limitation of liability of $200,000 (against which are credited all
capital contributions to Canyon Ranch made from time to time by RoseStar).
F. RoseStar owns 100% of the membership interests in Wine Country
Hotel, LLC, d/b/a Vintage Resorts ("Vintage"). Vintage is the lessee of (i)
Sonoma Mission Inn under a lease agreement dated November 18, 1996 (the "Sonoma
Lease") with Crescent Partnership and (ii) Canyon Ranch-Lenox under a lease
agreement dated December 11, 1996 (the "Lenox
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Lease") with Bellefontaine Associates, which has assigned its right, title and
interest in and to the Lenox Lease to Crescent Real Estate Funding VI
("Funding").
G. RoseStar is the lessee of Marriott City Center, Denver, under
an Amended and Restated Lease Agreement dated June 30, 1995 (the "Marriott
Lease") with Crescent Partnership. Sellers have made a Limited Guaranty
Agreement dated December 11, 1995 with respect to the Marriott Lease.
H. Southwest is the lessee of Hyatt Regency Beaver Creek, Avon,
Colorado, under an Amended and Restated Lease Agreement dated January 1, 1996,
with Crescent Real Estate Funding II, L.P. ("Crescent Sub"), a subsidiary of
Crescent Partnership, as amended by that First Amendment dated April 1, 1996
("Beaver Creek Lease"). Sellers have guaranteed repayment to Crescent Sub,
under a Limited Guaranty Agreement dated January 1, 1996 with respect to the
Beaver Creek Lease.
I. Southwest is also the lessee of Hyatt Regency Albuquerque, New
Mexico, under a Lease Agreement dated December 19, 1995, with Crescent Sub, as
amended by that First Amendment dated April 1, 1996 ("Albuquerque Lease").
Sellers have guaranteed repayment to Crescent Sub, under a Limited Guaranty
Agreement dated December 19, 1995 with respect to the Albuquerque Lease.
J. The Marriott Lease, the Beaver Creek Lease, the Canyon Ranch
Lease, the Albuquerque Lease, the Sonoma Lease and the Lenox Lease are
collectively referred to herein as the "Leases". The lessors under the
Marriott Lease, the Beaver Creek Lease, the Albuquerque Lease, the Canyon Ranch
Lease, the Sonoma Lease and the Lenox Lease are collectively referred to herein
as the "Lessors". Southwest, Canyon Ranch and Vintage are collectively
referred to herein as the "Subsidiaries" and individually referred to herein as
a "Subsidiary".
K. The Varma Group, Inc. ("VGI"), which is owned by Varma and his
wife, Xxxxxxx Xxxxx, provides RoseStar, Southwest and Vintage with asset
management services relating to their leasehold interests under the Marriott
Lease, the Beaver Creek Lease, the Albuquerque Lease and the Sonoma Lease,
pursuant to Asset Management Agreements dated May 1, 1996 (November 19, 1996
with respect to the Sonoma Lease).
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the conditions set forth herein, the
parties hereto agree as follows:
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ARTICLE I
SALE AND TRANSFER OF THE RSSW COMMON STOCK
SECTION 1.1 SALE OF RSSW COMMON STOCK. Subject to the
terms and conditions of this Agreement, Sellers hereby sell, transfer and
deliver to Purchaser, and Purchaser hereby purchases from each Seller, the
shares of the common stock, $.01 par value per share (the "RSSW Common Stock"),
owned by each Seller as set forth below:
Xxxxxxx 45 shares
Xxxx 45 shares
Varma 910 shares
SECTION 1.2 CLOSING DELIVERIES. Concurrently with the execution
of this Agreement:
(a) Each Seller shall deliver to Purchaser:
(i) a certificate representing the shares of RSSW Common
Stock owned by such Seller, duly endorsed in blank, or accompanied by
duly executed stock powers, by such Seller, with all necessary
transfer tax and other revenue stamps, acquired at Seller's expense,
affixed and cancelled;
(ii) an estoppel certificate executed by each Lessor
certifying that each Lease is in full force and effect and no default
by the tenant thereunder exists as of the date of this Agreement (the
"RoseStar Agreement"); and
(iii) all other agreements, instruments and/or documents to
be delivered by Purchaser to Sellers pursuant to this Agreement.
(b) VGI shall have executed and delivered an Amended and Restated
Management Agreement (herein so called) with RoseStar substantially in the form
attached as "Exhibit A" to the RoseStar-Varma Agreement.
(c) Sellers shall have sold all of the outstanding membership
interests of RoseStar owned by them to Purchaser as of the Closing Date.
(d) Each Seller shall have received from the Lessors a release
from any and all matters relating to or connected with the Leases through the
Closing Date and a release from every Limited Guaranty Agreement relating to
the Leases.
(e) Sellers shall have executed and delivered a Mutual Release in
substantially the form attached as "Exhibit B" to the RoseStar-Varma Agreement.
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(f) The transactions contemplated by that certain Amended and
Restated Crescent-Varma Resolution Agreement, dated July 31, 1997, among
Sellers, VGI, Xxxxxxx Xxxxx and Crescent Partnership shall have closed.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLERS AND ROSESTAR
To induce Purchaser to enter into this Agreement and to consummate the
transactions contemplated hereby, Sellers jointly and severally represent and
warrant as follows:
Section 2.1 ORGANIZATION, QUALIFICATION AND CORPORATE POWER.
To the knowledge of Sellers, RSSW is a corporation duly incorporated, validly
existing and in good standing under the laws of the state of Delaware, and, to
the knowledge of Sellers, has all corporate powers and all material
governmental licenses, authorizations, licenses, permits, consents and
approvals (collectively, "Governmental Authorizations") required to carry on
the business in which it is engaged and to own and use the properties owned and
used by it, except such Governmental Authorizations the absence of which would
not have a Material Adverse Effect (as hereinafter defined). Sellers have
delivered to Purchaser true and complete copies of the certificate of
Incorporation and Bylaws, each of which reflect all amendments made thereto at
any time prior to the date of this Agreement. To the knowledge of Sellers,
RSSW is duly qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the character of the property owned or
leased by it, the employment of its employees or the nature of its activities
makes such qualification necessary, except where the failure to be so qualified
would not have a Material Adverse Effect on RSSW. To the knowledge of Sellers,
the stock record books of RSSW and the stock shareholder lists of RSSW (copies
of which Sellers have previously furnished to Purchaser) are complete and
correct in all respects and accurately reflect the record ownership and, to the
knowledge of Sellers, the beneficial ownership of all the outstanding shares of
RSSW's capital stock and all other securities issued by RSSW. To the knowledge
of Sellers, RSSW is not in default or in violation of any restriction, lien,
encumbrance, indenture, contract, lease, sublease, loan agreement, note or
other obligation or liability by which it is bound or to which any of its
assets is subject except such defaults or violations which would not have a
Material Adverse Effect on RSSW. For purposes of this Agreement, a "Material
Adverse Effect," with respect to any person or entity (including without
limitation RoseStar, any Subsidiary and/or Purchaser), means a material adverse
effect on the condition (financial or otherwise), business, properties, assets,
liabilities (including contingent liabilities), results of operations or
prospects of such person or entity and the affiliated companies and
subsidiaries and/or parent corporation and/or corporations of such person or
entity under the same ownership, taken as a whole; and "Material Adverse
Change" means a change or a development which has resulted or will result in a
Material Adverse Effect.
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SECTION 2.2 AUTHORIZATION. (a) This Agreement and the
agreements, instruments and documents contemplated hereby which are to be
executed by Sellers have been duly executed and delivered by each Seller and
constitute, or upon execution and delivery by each Seller will constitute,
valid and binding agreements of such Seller, enforceable against him, in each
case, in accordance with their respective terms, except as such enforcement may
be limited by bankruptcy, insolvency or other similar laws effecting the
enforcement of creditors' rights generally or by general principles of equity.
SECTION 2.3 GOVERNMENTAL AUTHORIZATION. To the knowledge of
Sellers, none of the execution and delivery by Sellers of this Agreement or the
agreements, instruments and documents contemplated hereby, the performance by
Sellers of their respective obligations hereunder and thereunder or the
consummation by Sellers of the transactions contemplated hereunder and
thereunder requires any filing by RSSW or Sellers with any governmental body,
agency, official or authority.
SECTION 2.4 NON-CONTRAVENTION. To the knowledge of Sellers, none
of the execution and delivery by Sellers of this Agreement or the agreements,
instruments and documents contemplated hereby, the performance by Sellers of
their respective obligations hereunder and thereunder or the consummation by
Sellers of the transactions contemplated hereunder and/or thereunder does or
will:
(a) contravene or conflict with RSSW's Certificate of
Incorporation or Bylaws;
(b) contravene or conflict with or constitute a violation of
any provision of any law, regulation, judgment, injunction, order, decree,
governmental permit or license or statute to which RSSW and/or any Seller is a
party or by which RSSW and/or any Seller is bound;
(c) violate, breach, be in conflict with or constitute a default
(or an event that, with notice or lapse of time or both, would constitute a
default) under any material note, bond, indenture, mortgage, deed of trust,
lease, franchise, permit, authorization, license, contract, instrument or other
agreement or commitment to which RSSW or any Seller is a party or by which RSSW
or any of its assets or properties is bound or encumbered;
(d) result in a contractual right to cause the termination or
cancellation of or loss of a material benefit under, or the right to accelerate
any obligations pursuant to, any material note, bond, indenture, mortgage, deed
of trust, lease, franchise, permit, authorization, license, contract,
instrument or other agreement or commitment to which RSSW is a party or which
is binding upon RSSW or any material license, franchise, permit or other
similar authorization held by RSSW; or
(e) result in the creation or imposition of any Lien (as
hereinafter defined) upon any properties, assets or business of RSSW;
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except, with respect to clauses (b), (c), (d) and (e) above, for
contraventions, defaults, losses, Liens and other matters referred to in such
clauses that in the aggregate could not be reasonably expected to have,
individually or in the aggregate, a Material Adverse Effect on RSS/W. For
purposes of this Agreement, the term "Lien" means, with respect to any asset,
any mortgage, lien, pledge, charge, security interest or encumbrance of any
kind in respect of such asset.
SECTION 2.5 TITLE. As of the date hereof, the authorized
capital stock of RSSW consists solely of 10,000 shares of RSSW Common Stock, of
which 1,000 shares are issued and outstanding. All of the issued and
outstanding shares of RSSW Common Stock are owned (of record and beneficially)
by Sellers and as of the Closing Date will be owned (of record and
beneficially) by Sellers as described in Section 1.1 hereof, free and clear of
all Liens or other encumbrances. Upon consummation of the transactions
contemplated by this Agreement and the agreements, instruments and documents
contemplated hereby, Purchaser will acquire all of the outstanding RSSW Common
Stock free and clear of any Liens or encumbrances of any nature. The RSSW
Common Stock has been duly authorized and is validly issued. The RSSW Common
Stock has been issued and purchased in compliance with all applicable laws,
rules and regulations, including, without limitation, all applicable securities
laws, rules and regulations.
SECTION 2.6 SUBSIDIARIES AND JOINT VENTURES. To the knowledge of
Sellers, RSSW does not own any equity interest in any entity, is not a party to
any partnership (limited or general), joint venture or similar agreement and is
not obligated to purchase any equity interest in or any interest convertible
into or exchangeable for an equity interest in any entity or to enter into any
such agreement.
SECTION 2.7 ROSESTAR FINANCIAL STATEMENTS. Sellers have
delivered to Purchaser the following financial information: RoseStar and
Vintage Resorts Hotels Consolidated Cash Flows, RoseStar Management LLC and
RoseStar Southwest, LLC 10 Year Forecast and Vintage Resorts, LLC 10 Year
Forecast, each of which includes actual results of operations for the twelve
month period ended December 31, 1996, and RoseStar Management LLC 1997
Forecasted Cash Flow Statement which includes actual results of operations
through May 31, 1997 (collectively, the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the period covered thereby and
present fairly in all material respects the financial condition of RoseStar as
of December 31, 1996 and the results of its operations and changes in cash
flows for such period. With respect to the forecasted information contained in
the Financial Statements, such forecasts are, to the knowledge and belief of
Sellers, based upon reasonable assumptions. Since December 31, 1996, there
have been no changes in RoseStar's methods of accounting for tax or financial
statement purposes.
SECTION 2.8 BUSINESS ACTIVITY. The purpose and business of RSSW
is to serve as the managing member of RoseStar and to enter into such
agreements and engage in such activities
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that are incidental to or connected with RSSW's obligations as the managing
member of RoseStar. RSSW has not engaged in any other business activities.
SECTION 2.9 ABSENCE OF CERTAIN CHANGES. Except as disclosed in
the Financial Statements, on Schedule 2.9 or in the RoseStar-Varma Agreement,
since December 31, 1996, to the knowledge of Sellers, RSSW has in all material
respects conducted its business in the ordinary course, consistent with past
practices, and there has not been:
(a) any Material Adverse Change affecting RSSW.
(b) any loan to or other transaction (excluding transactions
related to the performance of services as an officer, manager or employee)
outside the ordinary course of business with any officer, manager, employee or
stockholder of RSSW giving rise to any claim or right of RSSW against any such
person or of such person against RSSW;
(c) any damage, destruction or other property or casualty loss
(whether or not covered by insurance) affecting the business, assets,
liabilities, earnings or prospects of RSSW which, individually or in the
aggregate, has had or may reasonably be expected to have a Material Adverse
Effect on RSSW;
(d) any increase in indebtedness for borrowed money or capitalized
lease obligations of RSSW;
(e) any sale, assignment, transfer or other disposition of any
tangible or intangible asset material to the business of RSSW;
(f) any amendment, termination or waiver by RSSW of any right of
substantial value under any material note, bond, indenture, mortgage, deed of
trust, lease, franchise, permit, authorization, license, contract, instrument
or other agreement or commitment to which RSSW is a party or which is binding
upon RSSW or any material license, franchise, permit or other similar
authorization held by RSSW;
(g) any material reduction in the amounts of coverage provided by
existing casualty and liability insurance policies with respect to the business
or properties of RSSW;
(h) any (i) grant of any severance or termination pay to any
director, officer or employee of RSSW, (ii) entering into of any employment,
deferred compensation or other similar agreement (or any amendment to any such
existing agreement) with any director, officer or employee of RSSW, (iii) any
increase in benefits payable under any existing severance or termination pay
policies or employment agreements of RSSW, or (iv) any increase in
compensation, bonus or other benefits payable to directors, officers or
employees of RSSW;
(i) any adoption of or amendment to or alteration of any bonus,
incentive, compensation, severance, stock option, stock appreciation right,
pension, matching gift, profit-
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sharing, employee stock ownership, retirement, pension, group insurance, death
benefit, or other fringe benefit plan, arrangement or trust agreement in which
the employees, officers or directors of RSSW;
(j) any capital expenditure, capital addition or capital
improvement incurred or undertaken by RSSW;
(k) any other transaction or commitment entered into other than
in the ordinary course of business by RSSW;
(l) the entering into of any agreement by RSSW or any person on
behalf of RSSW to take any of the foregoing actions.
SECTION 2.10 NO UNDISCLOSED LIABILITIES. To the knowledge of
Sellers, RSSW has no material debt, liability or obligation of any nature,
whether accrued, absolute, contingent or otherwise, known or unknown, whether
due or to become due, except to the extent set forth in the Financial
Statements or as set forth on Schedule 2.10.
SECTION 2.11 LITIGATION. Schedule 2.11 sets forth any instances
in which (a) RSSW is subject to any judgment or order (other than orders of
general applicability) of any court or quasi-judicial or administrative agency
of any jurisdiction, domestic or foreign, or where there is any charge,
complaint, lawsuit or governmental investigation pending or threatened in
writing against RSSW or (b) RSSW is a plaintiff in any action, domestic or
foreign, judicial or administrative in which a counterclaim against RSSW is
pending.
SECTION 2.12 TAX RETURNS AND AUDITS. The taxable year of RSSW
ends December 31. To the knowledge of Sellers, RSSW has duly and timely filed
or caused to be filed all federal, foreign, state and local income, franchise,
sales and use, value added, property, employment, excise, informational or any
other tax return (the "Tax Returns") required to be filed by them and has paid
in full or fully reserved against in the Financial Statements all taxes,
interest, penalties, assessments and deficiencies due or claimed to be due by
them to foreign, federal, state or local taxing authorities (including taxes on
properties, income, franchises, licenses, sales, use and payrolls). To the
knowledge of Sellers, such Tax Returns are correct, and RSSW is required to pay
any taxes for such periods except as shown in such Tax Returns. RSSW is not a
United States real property holding corporation as defined in Section 897 of
the Internal Revenue Code of 1986, as amended (the "Code"). No stockholder of
RSSW is a foreign person within the meaning of Section 1445(b)(2) of the Code.
SECTION 2.13 MATERIAL AGREEMENTS.
(a) Schedule 2.14 includes a complete and accurate list of all
contracts, agreements, leases (other than the Leases), and instruments (true
and complete copies of which have been delivered to Purchaser) to which RSSW is
a party or by which they or their properties or assets
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are bound which are material to the operations, assets or business of RSSW or
which individually involve net payments or receipts in excess of $100,000 per
annum.
(b) To the knowledge of Sellers, neither RSSW nor any other party
is in default under any Material Agreement and no event has occurred which
(after notice or lapse of time or both) would become a breach or default under,
or would permit the modification, cancellation or termination of or the
acceleration of any obligation under any Material Agreement or result in the
creation of any Lien upon, or any person obtaining any right to acquire, any
properties, assets or rights of RSSW, which, in any such case, has had or would
reasonably be expected to have a Material Adverse Effect.
(c) To the knowledge of Sellers, each such Material Agreement is
in full force and effect and is valid and legally binding and there are no
material unresolved disputes involving or with respect to any such Material
Agreement. No party to a Material Agreement has advised RSSW or Sellers that
it intends either to terminate a Material Agreement or to refuse to renew a
Material Agreement upon the expiration of the term thereof.
SECTION 2.14 PROPERTIES.
(a) RSSW owns no real estate. Other than the Leases, neither
RoseStar nor any Subsidiary is a party to or bound by a lease of real property.
To the knowledge of Sellers, with respect to each Lease: (a) the Lease has been
validly executed and delivered by RoseStar or the applicable Subsidiary and, to
the knowledge of RoseStar and Sellers, by the other party or parties thereto
and is a binding agreement; (b) neither RoseStar nor the applicable Subsidiary,
and to the knowledge of RoseStar and Sellers, no other party to the lease is in
material breach or default, and no event has occurred on the part of RoseStar
or the applicable Subsidiary or, to the knowledge of RoseStar and Sellers, on
the part of any other party which, with notice or lapse of time, would
constitute such a breach or default or permit termination, modification or
acceleration under the lease; (c) the lease will continue to be binding in
accordance with its terms following the Closing; (d) neither RoseStar nor the
applicable Subsidiary has repudiated and, to the knowledge of RoseStar and
Sellers, no other party to the lease has repudiated any provision thereof; (e)
there are no disputes, oral agreements or delayed payment programs in effect as
to the lease; and (f) all facilities leased thereunder have been approved by
all necessary governmental authorities, have been maintained in accordance with
normal industry practice and are in good condition, working order and repair.
(b) To the knowledge of Sellers, RSSW has good and marketable
title to, or a valid leasehold interest in, each item of tangible property,
whether real, personal or mixed, reflected on its books and records as owned or
used by it, subject to no Liens or encumbrances of any nature.
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SECTION 2.15 ENVIRONMENTAL MATTERS.
(a) For the purposes of this Agreement, the following terms have
the following meanings:
"Environmental Laws" shall mean any and all federal, state,
local and foreign statutes, laws (including case law), regulations,
ordinances, rules, judgments, orders, decrees, codes, plans,
injunctions, permits, concessions, grants, franchises, licenses,
agreements and governmental restrictions relating to human health, the
environment or to emissions, discharges or releases of Hazardous
Substances (as hereinafter defined) into the environment or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of Hazardous Substances or
the clean-up or other remediation thereof.
"Environmental Liabilities" shall mean all liabilities,
whether vested or unvested, contingent or fixed, actual or potential,
which (i) arise under or relate to Environmental Laws and (ii) relate
to actions occurring or conditions existing on or prior to the Closing
Date.
"Hazardous Substances" shall mean any chemical, pollutant,
contaminant, material, solid waste, hazardous waste or combination
thereof, including, without limitation, (i) any toxic, radioactive,
caustic or otherwise hazardous substance, (ii) petroleum and its
derivatives, by-products and other hydrocarbons, and (iii)
polychlorinated biphenyls, asbestos, lead and radon gas, whether
solid, liquid or gaseous in nature, which poses or may pose a hazard
to human health or the environment.
"Regulated Activity" shall mean any generation, treatment,
storage, recycling, transportation, disposal, release or remediation
of any Hazardous Substances.
(b) To the knowledge of Sellers, no notice, notification, demand,
request for information, citation, summons, complaint or order has been
received by RSSW or Sellers, no complaint has been filed, no penalty has been
assessed and no investigation or review is pending, or to the knowledge of
Sellers, has been threatened by any governmental entity or other party with
respect to any (i) alleged violation by RSSW of any Environmental Law, (ii)
alleged failure by RSSW to have any environmental permit, certificate, license,
approval, registration or authorization required in connection with the conduct
of its business or (iii) the participation by RSSW in any Regulated Activity.
(c) To the knowledge of Sellers, RSSW has no material
Environmental Liabilities and there has been no release of Hazardous Substances
into the environment by RSSW or with respect to any of their properties which
has had, or would reasonably be expected to have, a Material Adverse Effect on
RSSW.
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SECTION 2.16 GUARANTEES. To the knowledge of Sellers, RSSW is not
a guarantor or otherwise liable for any indebtedness of any other person, firm
or corporation other than endorsements for collection in the ordinary course of
business.
SECTION 2.17 POWERS OF ATTORNEY. To the knowledge of Sellers,
there are no outstanding powers of attorney or similar instruments executed by
RSSW.
SECTION 2.18 COMPLIANCE WITH LAWS. To the knowledge of Sellers,
RSSW and each of its respective directors, officers and employees (the
individuals only in their capacities as representatives of such entities) have
complied, in all material respects, with all applicable laws and regulations of
foreign, federal, state, provincial and local governments and all agencies
thereof, including Environmental Laws, and no claim has been filed or
threatened in writing against RSSW alleging a violation of any such laws or
regulations.
SECTION 2.19 NO PROCEEDINGS. To the knowledge of Sellers, there
is no legal action or governmental proceeding or investigation pending or, to
the knowledge of Sellers and RSSW, threatened against Sellers or RSSW that
would adversely affect or prevent the consummation of the transactions
contemplated by this Agreement or the agreements, instruments or documents
contemplated hereby, nor are RSSW or Sellers subject to any outstanding order
of any court or governmental authority that could adversely affect or prevent
the consummation of the transactions contemplated by this Agreement or the
agreements, instruments or documents contemplated hereby.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
To induce Sellers to enter into this Agreement and to consummate the
transactions contemplated hereby, Purchaser represents and warrants as follows:
SECTION 3.1 CORPORATE EXISTENCE AND GOOD STANDING. Purchaser is
a corporation duly organized, validly existing and in good standing under the
laws of the state of Delaware.
SECTION 3.2 CORPORATE AUTHORIZATION. The execution, delivery and
performance by Purchaser of this Agreement and the agreements, instruments and
documents contemplated hereby which are to be executed by Purchaser, and the
consummation by Purchaser of the transactions contemplated hereby and thereby
are within the corporate powers of Purchaser and have been duly authorized by
all necessary action of the shareholders and directors of Purchaser. This
Agreement and the agreements, instruments and documents contemplated hereby
which are to be executed by Purchaser have been duly executed and delivered by
Purchaser and constitute, or upon execution and delivery by Purchaser will
constitute, valid and binding agreements of Purchaser enforceable against
Purchaser in each case in accordance with their respective terms, except as
such enforcement may be limited by bankruptcy, insolvency
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or other similar laws affecting the enforcement of creditors' rights generally
or by general principles of equity.
SECTION 3.3 GOVERNMENTAL AUTHORIZATION. To the knowledge of
Purchaser, none of the execution and delivery by Purchaser of this Agreement or
the agreements, instruments and documents contemplated hereby, the performance
by Purchaser of its obligations hereunder and thereunder or the consummation by
Purchaser of the transactions contemplated hereunder or thereunder requires any
filing by Purchaser with any governmental body, agency, official or authority.
SECTION 3.4 NON-CONTRAVENTION. To the knowledge of Purchaser,
none of the execution and delivery by Purchaser of this Agreement and the
agreements, instruments or documents contemplated hereby, the performance by
Purchaser of its obligations hereunder and thereunder or the consummation by
Purchaser of the transactions contemplated hereunder or thereunder does or
will:
(a) contravene or conflict with the Certificate of Incorporation
or Bylaws of Purchaser; or
(b) contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree,
governmental permit or license or statute to which Purchaser is a party or by
which Purchaser is bound.
SECTION 3.5 NO PROCEEDINGS. To the knowledge of Purchaser, there
is no legal action or governmental proceeding or investigation pending or, to
the knowledge of Purchaser, threatened against Purchaser that would adversely
affect or prevent the consummation of the transactions contemplated by this
Agreement and the agreements, instruments and documents contemplated hereby,
nor is Purchaser subject to any outstanding order of any court or governmental
authority that could adversely affect or prevent the consummation of the
transactions contemplated by this Agreement and the agreements, instruments and
documents contemplated hereby.
ARTICLE IV
ADDITIONAL AGREEMENTS OF THE PARTIES
SECTION 4.1 PRESS RELEASES. Purchaser and Sellers shall consult
with each other as to the form and substance of any press release or other
public disclosure of matters related to this Agreement or any of the
transactions contemplated hereby; provided, however, that nothing in this
Section shall be deemed to prohibit any party hereto from making any disclosure
that is required to fulfill such party's disclosure obligations imposed by law,
including, without limitation, federal, state or provincial securities laws.
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SECTION 4.2 TAX COOPERATION. Purchaser and Sellers shall
cooperate in the preparation, execution and filing of all returns,
questionnaires, applications or other documents regarding any gains, sales,
use, transfer or value added, stock transfer and stamp taxes, any transfer,
recording, registration and other fees, and any similar taxes or fees which
become payable in connection with the transactions contemplated by this
Agreement that are required or permitted to be filed at any time before or
after the Closing Date. Purchaser and Sellers shall not take inconsistent
reporting positions with the IRS with respect to the transactions contemplated
by this Agreement. Purchaser agrees not to amend any tax positions with
respect to RoseStar taken prior to the date of this Agreement other than such
amendments as may be required in the opinion of Purchaser's legal counsel in
order to comply with the Code.
SECTION 4.3 DEFINITION OF KNOWLEDGE. For purposes of this
Agreement, "to the knowledge of Sellers" shall mean the actual knowledge
without any duty of independent investigation of each Seller on an individual
basis, i.e., no individual Seller shall be responsible for the representations
and warranties made by any other Seller.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 FURTHER ASSURANCES. Each party agrees to
cooperate fully with the other parties and to execute such further
instruments, documents and agreements and to give such further written
assurances as may be reasonably requested by any other party to better evidence
and reflect the transactions described herein and contemplated hereby and to
carry into effect the intents and purposes of this Agreement.
SECTION 5.2 FEES AND EXPENSES. Until otherwise agreed by the
parties, each party shall bear its own fees and expenses, including, without
limitation, counsel fees and fees of brokers and investment bankers contracted
by such party, in connection with the transaction contemplated hereby.
SECTION 5.3 NOTICES. All notices, demands, requests or other
communications that may be or are required to be given, served or sent by
either party to the other party pursuant to this Agreement will be in writing
and will be mailed by first-class, registered or certified mail, return receipt
requested, postage prepaid, or transmitted by hand delivery, telegram or
facsimile transmission addressed as follows:
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(a) If to Purchaser: Crescent Operating, Inc.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile Transmission No.: (000) 000-0000
Attn.: Xxxxxxx X. Xxxxxxx, Treasurer,
Chief Financial Officer and
Secretary
with a copy (which
will not constitute
notice) to: Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Xxxxxx, Xxxxx 00000
Facsimile Transmission No.: (000) 000-0000
Attn.: Xxxxxx X. Xxxxxxx, Esq.
(b) If to Xxxxxxx: Xxxxxx X. Xxxxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile Transmission No.: (000) 000-0000
(c) If to Xxxx: Xxxx X. Xxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile Transmission No.: (000) 000-0000
(d) If to Varma: Xxxxxx Xxxxx
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile Transmission No.: (000) 000-0000
Either party may designate by written notice a new address to which any notice,
demand, request or communication may thereafter be given, served or sent. Each
notice, demand, request or communication that is mailed, delivered or
transmitted in the manner described above will be deemed sufficiently given,
served, sent and received for all purposes at such time as it is delivered to
the addressee with the return receipt, the delivery receipt, the affidavit of
messenger or (with respect to a facsimile transmission) the answer back being
deemed conclusive evidence of such delivery or at such time as delivery is
refused by the addressee upon presentation.
SECTION 5.4 APPLICABLE LAW. THIS AGREEMENT AND THE AGREEMENTS,
INSTRUMENTS AND DOCUMENTS CONTEMPLATED HEREBY WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE
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STATE OF TEXAS (EXCLUSIVE OF CONFLICTS OF LAW PRINCIPLES) AND WILL, TO THE
MAXIMUM EXTENT PRACTICABLE, BE DEEMED TO CALL FOR PERFORMANCE IN TARRANT
COUNTY, TEXAS. COURTS WITHIN THE STATE OF TEXAS WILL HAVE JURISDICTION OVER
ANY AND ALL DISPUTES BETWEEN THE PARTIES HERETO, WHETHER IN LAW OR EQUITY,
ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE AGREEMENTS, INSTRUMENTS
AND DOCUMENTS CONTEMPLATED HEREBY. THE PARTIES CONSENT TO AND AGREE TO SUBMIT
TO THE JURISDICTION OF SUCH COURTS. VENUE IN ANY SUCH DISPUTE, WHETHER IN
FEDERAL OR STATE COURT, WILL BE LAID IN DALLAS COUNTY, TEXAS. EACH OF THE
PARTIES HEREBY WAIVES, AND AGREES NOT TO ASSERT IN ANY SUCH DISPUTE, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY CLAIM THAT (I) SUCH PARTY IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, (II) SUCH PARTY AND
SUCH PARTY'S PROPERTY IS IMMUNE FROM ANY LEGAL PROCESS ISSUED BY SUCH COURTS OR
(III) ANY LITIGATION COMMENCED IN SUCH COURTS IS BROUGHT IN AN INCONVENIENT
FORUM.
SECTION 5.5 BINDING UPON SUCCESSORS AND ASSIGNS, ASSIGNMENT.
This Agreement and the provisions hereof shall be binding upon each of the
parties, their permitted successors and assigns. This Agreement may not be
assigned by any party without the prior consent of the other; provided,
however, that Purchaser may assign all or any portion of its rights and
delegate all or any portion of its obligations under this Agreement to any
wholly owned subsidiary of Purchaser; provided that Purchaser will remain
jointly and severally liable for the performance of Purchaser's obligations
hereunder.
SECTION 5.6 SEVERABILITY. If any provision of this Agreement, or
the application thereof, shall for any reason or to any extent be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances shall continue in full force and
effect and in no way be affected, impaired or invalidated.
SECTION 5.7 ENTIRE AGREEMENT. This Agreement, together with the
agreements,instruments and documents contemplated hereby constitute the entire
understanding and agreement of the parties with respect to the subject matter
hereof and thereof and supersede all prior and contemporaneous agreements or
understandings, inducements or conditions, express or implied, written or oral,
between parties with respect to such subject matter.
SECTION 5.8 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The
representations, warranties and covenants contained in this Agreement shall
survive the consummation of the transactions contemplated hereby.
SECTION 5.9 AMENDMENT AND WAIVERS. No amendment of any provision
of this Agreement shall be valid unless the same shall be in writing and signed
by the parties hereto.
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No waiver by any part of any default, misrepresentation or breach of warranty
or covenant hereunder, whether intentional or not, shall not be deemed to
extend to any prior or subsequent default, misrepresentation or breach of
warranty or covenant hereunder or affect in any way any rights arising by
virtue of any prior or subsequent such occurrence.
SECTION 5.10 NO WAIVER. The failure of any party to enforce any
of the provisions hereof shall not be construed to be a waiver of the right of
such party thereafter to enforce such provisions.
SECTION 5.11 CONSTRUCTION OF AGREEMENT. A reference to an
Article, Section or an Exhibit shall mean an Article of, a Section in, or
Exhibit to, this Agreement unless otherwise explicitly set forth. The titles
and headings herein are for reference purposes only and shall not in any manner
limit the construction of this Agreement which shall be considered as a whole.
The words "include," "includes" and "including" when used herein shall be
deemed in each case to be followed by the words "without limitation."
SECTION 5.12 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original as against any party
whose signature appears thereon and all of which together shall constitute one
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all the parties reflected hereon as signatories.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
CRESCENT OPERATING, INC.
By:
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Xxxxxxx X. Xxxxxxx, Treasurer,
Chief Financial Officer and Secretary
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Xxxxxx X. Xxxxxxx
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Xxxx X. Xxxx
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Xxxxxx Xxxxx
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