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EXHIBIT 10.3
AGREEMENT REGARDING SCHEDULES AND OTHER MATTERS
This Agreement regarding Schedules and Other Matters is made as of
September 11, 1998 by and among Crescent Operating, Inc., a Delaware
corporation ("COI"), Xxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxx X. Xxxx ("Xxxx") and
Xxxxx X. Xxxxxxxx, III ("Xxxxxxxx"). Xxxxxxx, Xxxx and Xxxxxxxx are
collectively referred to herein as the "CDMC Parties."
RECITALS:
A. The parties hereto are entering into that certain agreement of
limited partnership (the "Partnership Agreement") relating to COPI Colorado,
L.P., a Delaware limited partnership (the "Partnership"), and are
simultaneously entering into a Contribution Agreement of even date herewith
that pertains to, among other things, the terms and conditions pursuant to
which COI and the CDMC Parties will make capital contributions to the
Partnership (the "Contribution Agreement").
B. Sections 2.1(b) ("Subsidiaries"), 2.8 ("Material Adverse
Changes"), 2.9 ("Undisclosed Liabilities"), 2.10 ("Litigation"), 2.12
("Contracts"), 2.13 ("Assets") and 2.15 ("Guarantees") of the Contribution
Agreement refer to schedules (the "Schedules") that qualify the representations
and warranties set forth in such sections of the Contribution Agreement (the
"Sections").
C. Section 5.6(b) of the Contribution Agreement recites that the
parties have entered into the Arbitration Agreement with respect to the
Contribution Agreement and certain other matters.
D. Notwithstanding the references in the Sections to the
Schedules, as of the effective date of the Contribution Agreement the Schedules
have not been completed and, as a result, the Schedules are not attached to the
Contribution Agreement.
E. Notwithstanding the recitation in Section 5.6(b) of the
Contribution Agreement that the parties have entered into the Arbitration
Agreement, as of the effective date the Arbitration Agreement has not been
completed and, as a result, the parties have not entered into such agreement.
F. COI and the CDMC Parties wish to memorialize their
understanding regarding, among other things, the matters described above.
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NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. To induce COI to enter into the Contribution Agreement and the
Partnership Agreement, to make the COI Contribution and to perform the other
obligations to be performed by COI pursuant to the Contribution Agreement and
the Partnership Agreement, each of the CDMC Parties severally:
(a) represents and warrants to COI that the CDMC Parties have
provided to COI all information necessary to render all of
their respective representations and warranties in the
Contribution Agreement true, correct and complete (such
provided information constituting the "Provided Disclosure
Information"); and
(b) covenants that the Schedules, when completed and delivered to
COI and appended to the Contribution Agreement, will contain
no information that differs in any material respect from the
Provided Disclosure Information (the Schedules as described
collectively constituting "Conforming Schedules").
2. The representations, warranties and covenants set forth in
paragraph 1 above shall constitute representations, warranties and covenants
made under, and subject to all of the terms and conditions of, the Contribution
Agreement to the same extent as if set forth in full therein; provided,
however, that the representations and warranties set forth in paragraph 1 above
shall be of no further force or effect upon and after such time as the CDMC
Parties deliver Conforming Schedules to COI.
3. The Arbitration Agreement shall be on substantially the same
terms and conditions as the form of arbitration agreement set forth as Exhibit
A hereto (the "Exhibit A Arbitration Agreement").
4. In the event that the CDMC Parties fail to deliver Conforming
Schedules to COI within thirty (30) days of the effective date hereof, COI
shall have the unilateral right and power, at its option, and notwithstanding
anything to the contrary in the Partnership Agreement or the Contribution
Agreement, (a) to rescind the Contribution Agreement and to obtain the return
of the COI Contribution (and/or the proceeds thereof) in full, plus accrued
interest thereon calculated at an annual rate of eight percent (8%), or (b) to
cause a dissolution of the Partnership and to wind-up of the Partnership in
accordance with the procedures set forth therein, or (c) to make such
adjustment in the value of the CDMC Contribution, and to make such
corresponding adjustment to the respective capital accounts and percentage
interests of COI and the CDMC Parties under the Partnership Agreement, as COI
shall determine in its reasonable discretion (the "Adjustments"). In the event
that COI elects to make the Adjustments pursuant to clause (b) of the
immediately- preceding sentence, COI shall notify the CDMC promptly of the
Adjustments and the CDMC Parties shall have ten (10) days following their
receipt of such notification within which to object to the Adjustments. In the
event that COI and the CDMC Parties are unable
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thereafter to resolve their dispute within ten (10) days following the date on
which the CDMC Parties notify COI of their objection to the Adjustments, the
dispute shall be resolved pursuant to paragraph 5 hereof. The failure of the
CDMC Parties to object to the Adjustments within the specified time period
shall be deemed to constitute their irrevocable and unconditional acceptance
thereof.
5. The provisions of the Arbitration Agreement (or, if the
Arbitration Agreement is not then in full force and effect, the provisions set
forth in the Exhibit A Arbitration Agreement) shall apply, and shall constitute
the exclusive remedy applicable, to any disputes that may arise among the
parties with respect to this Agreement.
6. All undefined capitalized terms used herein have the same
meanings respectively ascribed to them in the Contribution Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
regarding Schedules and Other Matters as of the date first above written.
CRESCENT OPERATING, INC.,
a Delaware corporation
by:/s/ XXXXXXX X. XXXXXXX
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Xxxxxxx X. Xxxxxxx, Executive Vice
President
/s/ XXXXXX X. XXXXXXX
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XXXXXX X. XXXXXXX
/s/ XXXX X. XXXX
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XXXX X. XXXX
/s/ XXXXX X. XXXXXXXX, III
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XXXXX X. XXXXXXXX, III
