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EXHIBIT 10.15
AGREEMENT FOR FINANCIAL SERVICES
This Agreement for Financial Services (the "Agreement") is entered into and
effective this first day of July, 1997, (The Effective Date"), by and between
CRESCENT OPERATING, INC. (referred to as the "Client"), and PETROLEUM FINANCIAL,
INC., a Texas corporation ("Consultant").
In consideration of the mutual promises herein contained, the parties hereby
agree as follows:
1. Engagement. As of the Effective Date, the Client hereby engages
Consultant, and Consultant hereby accepts such engagement, to render to
the Client financial services as listed on Exhibit "A" upon the
terms and subject to the conditions set forth herein.
2. Services. Consultant agrees to provide the services described on
Exhibit "A" pursuant to this Agreement, in accordance with industry
standards. Consultant shall, through its officers, employees and
representatives make itself available to consult with the Client and
the department heads of the administrative staff of Client at
reasonable times, concerning matters pertaining to the rendering of the
services described on Exhibit "A". Consultant shall devote such time to
the performance of the services described on Exhibit "A" as is
reasonably necessary for the satisfactory performance thereof.
3. Term. The initial term of this Agreement (the "Initial Term") shall
commence on the Effective Date and shall continue thirty six months
from the Effective date. However, this Agreement may be terminated by
either party at any time with 90 day written notice after nine months
from the Effective Date.
4. Compensation. As compensation for Consultant's agreement to enter into
this Agreement and in consideration of the services to be performed by
Consultant under this Agreement, the Client shall pay Consultant a
monthly fee as set forth on Exhibit "B" for the term of this Agreement.
Client shall also pay any reasonable and necessary out-of-pocket costs
such as bank charges, check printing charges, mailing costs, etc.
5. Indemnification. Client hereby covenants and agrees to and does hereby
indemnify, defend, protect, save and hold harmless the Indemnitee(s)
(as such term is hereinafter defined) from and against any and all
Claims (as such term is hereinafter defined) asserted against the
Indemnitee(s) (or any Indemnitee) arising out of this Agreement or on
account of the services rendered to the respective Client regarding its
interest only pursuant to this Agreement, including without limitation
any negligent acts or negligent omissions of the Indemnitees (or any
Indemnitee), or other alleged or adjudicated wrongful act or omission,
default or breach of whatever kind or nature, whatsoever arising;
provided, however, that the respective Client shall have no obligation
under this Section 5 if such Claims arise due to the gross negligence
or willful misconduct of Consultant or its representatives in the
performance of the services to be performed under this Agreement. As
used herein, the term "Indemnitee" shall mean Consultant, any Affiliate
of Consultant, and any officer, director, employee, agent, attorney,
joint venturer, partner (limited or general), servant, representative,
trustee, successor, assign or shareholder of Consultant. As used
herein, the term "Claims" shall mean allegations, actions, claims,
liabilities, demands, debts, actions, causes or action, suits, dues,
reckonings, controversies, promises, rights of indemnity and
contribution, and all attorneys' fees and costs of court related to or
incurred in connection therewith, of any kind or character whatsoever,
known or unknown, suspected or unsuspected, in contract or in tort or
otherwise, at law or in equity, whether heretofore or hereafter
existing or accruing. The provisions of this Section 5 shall survive
one year from the termination of this Agreement. Anything to the
contrary, notwithstanding an indemnification from a Client, shall be
only with respect to that Client's interest and shall not be binding
upon the
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SERVICE AGREEMENT BETWEEN PETROLEUM FINANCIAL & CRESCENT OPERATING, INC.
other Client or Clients as the case may be. In other words, there is no
joint and several indemnification by the Clients in favor of
Consultant.
6. Confidentiality. Consultant (including its Affiliates) shall keep
confidential all material information of the Client and Crescent Real
Estate Equity Ltd., its affiliate to which it has access for purposes
of carrying out the provisions of this Agreement and, except as
required by legal or regulatory requirements beyond the control of
such party, shall not disclose any such information to unauthorized
persons or utilize any such information except in the performance of
its respective duties under this Agreement. The provisions of this
Section 6 shall not apply to any information required to be disclosed
by law, that is otherwise publicly available, or that is disclosed
with the written consent of the owner thereof or required to be
disclosed in the execution of the duties set forth on Exhibit. In the
event that Consultant is requested to disclose any of Clients
confidential information required by law, Consultant shall immediately
notify Client in writing. The provisions of this Section 6 shall
survive one year from any termination of this Agreement.
7. Relationship. Consultant in furnishing services to the Client hereunder
is providing such services only as an independent contractor. This
Agreement does not create, and shall not be construed to create, any
employer-employee, joint venture or partnership relationship between
the parties hereto. No officer, employee, agent, servant or independent
contractor of either party hereto or their respective Affiliates shall
at any time be deemed to be an employee, servant, agent or contractor
of any other party for any purpose whatsoever.
8. Waiver. The failure of any party hereto to seek a redress for
violation, or to insist upon the strict performance of any covenant,
agreement, provision or condition of this Agreement, shall not
constitute the waiver of the terms of such covenant, agreement,
provision or condition at subsequent times or of the terms of any other
covenant, agreement, provision or condition, and the parties hereto
shall have all remedies provided herein with respect to any subsequent
act which would have originally constituted the violation hereunder.
9. Governing Law. THIS AGREEMENT, AND ALL QUESTIONS RELATING TO ITS
VALIDITY, INTERPRETATION, PERFORMANCE AND ENFORCEMENT (INCLUDING,
WITHOUT LIMITATION, PROVISIONS CONCERNING LIMITATIONS OF ACTION), SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF TEXAS, NOTWITHSTANDING ANY CONFLICT-OF-LAWS DOCTRINES OF
SUCH STATE OR OTHER JURISDICTION TO THE CONTRARY.
10. Notices. All notices, requests, demands and other communications
required or permitted hereunder shall be in writing and shall be deemed
to have been fully given, made and received only when personally
delivered or delivered by Federal Express or other nationally
recognized courier service, or three working days after having been
deposited in the United States mail, certified mail, postage prepaid,
return receipt requested, addressed as set forth below:
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SERVICE AGREEMENT BETWEEN PETROLEUM FINANCIAL & CRESCENT OPERATING, INC.
If to Consultant:
Petroleum Financial, Inc.
Attn: Xxxx Xxxxxxx
1025 Fort Worth Club Building
000 Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
If to the Client:
Crescent Operating, Inc.
Attn: Xxxxxx X. Xxxxxxx
000 Xxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Any party may change the address to which communications or copies are to be
sent by giving notice of such change of address in conformity with the
provisions of this Section 10 for the giving of notice.
11. Entire Agreement. This Agreement contains the entire understanding
among the parties hereto with respect to the subject matter hereof, and
supersedes all prior and contemporaneous agreements and understandings,
inducements or conditions, express or implied, oral or written, except
as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of
the terms hereof. This Agreement may not be modified or amended other
than by an agreement in writing by authorized representatives of the
parties hereto.
12. Headings. The headings in this Agreement are for convenience only and
they form no part of this Agreement and shall not effect its
interpretation.
13. Multiple Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all such counterparts
together shall constitute but one and the same instrument.
14. Assignment. No party may or shall have the power to assign this
Agreement or any right, interest or obligation hereunder, whether by
operation of law or otherwise, without first obtaining the prior
written consent of the other party.
15. No Other Rights in Third Parties. This Agreement shall inure to the
benefit of and bind the Client, Consultant, the Indemnitee (but only
with respect to Section 5 hereof), successors and permitted assigns.
Nothing expressed or referred to in this Agreement is intended or shall
be construed to give any person other than the Client, Consultant, the
Indemnitee, and their respective heirs, executors, administrators,
successors or permitted assigns any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision contained
herein, it being the intention that this Agreement shall be for the
sole and exclusive benefit of such parties and such heirs, executors,
administrators, successors and permitted assigns and not for the
benefit of any other person. References in this Section 15 to "heirs,
executors, administrators, successors and permitted assigns"
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SERVICE AGREEMENT BETWEEN PETROLEUM FINANCIAL & CRESCENT OPERATING, INC.
shall not relieve the parties from the provisions of Section 5 hereof.
16. Attorneys' Fees. The prevailing party in any dispute arising out of the
interpretation, application or enforcement of any provision of this
Agreement shall be entitled to recover all of its reasonable attorneys
fees and costs whether suit be filed or not, including, but not limited
to, costs and attorneys' fees related to or arising out of any trial or
appellate proceedings. The provisions of this Section 16 shall survive
one year from any termination of this Agreement.
17. No Implied Covenants. Each party waives and relinquishes any right to
assert, either as a claim or as a defense, that the other party is
bound to perform or liable for the non-performance of any implied
covenant or implied duty or implied obligation.
18. Severability. Any provision of this Agreement which is unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability, without invalidating
the remaining provisions hereof, which provisions shall be enforced to
the maximum extent permitted by law and construed in a fashion to
effectuate best the provisions hereof, and any such prohibition or
unenforceability shall not invalidate or render unenforceable such
provision in any other jurisdiction.
19. References. The use of the words "hereof", "herein", "hereunder", and
words of similar import shall refer to this entire Agreement, and not
to any particular article, section, subsection, clause, sentence or
paragraph of this Agreement, unless the context clearly indicates
otherwise.
IN WITNESS WHEREOF, Consultant and the Client, by and through their respective
authorized officers, have executed and delivered this Agreement on this 29th day
of April, 1997, to be effective as of the Effective Date.
CLIENT: CONSULTANT:
CRESCENT OPERATING, INC. PETROLEUM FINANCIAL, INC.
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SERVICE AGREEMENT BETWEEN PETROLEUM FINANCIAL & CRESCENT OPERATING, INC.
EXHIBIT A
to
Financial Service Agreement between Crescent Operating, Inc.
and Petroleum Financial Inc.
Petroleum Financial Inc. will provide all accounting and financial services
required by Crescent Operating, Inc. including but not limited to the following.
1. Reporting required pursuant to the Securities Exchange Act of 934 and
The Securities Act of 1933, subject to review and assistance by outside
counsel and public accounting firm, as deemed necessary.
2. Preparation of monthly financial statements on an accrual basis, and in
accordance with generally accepted accounting practices.
3. Processing all transactions effecting Crescent Operating, Inc.
4. All Treasury functions.
5. Preparation of federal and state income tax and franchise tax returns,
subject to review and assistance by public accounting firm, as deemed
necessary.
6. Carrying out duties and responsibilities of the office of Chief
Financial Officer, Treasurer and Secretary.
7. Preparation of all management reports and reports to the Board of
Directors, including budget reports.
8. Monitoring all investment activities of Crescent Operating, Inc. and
reporting all material issues to the President.
9. Setting up and monitoring systems of internal control.
10. Coordinate and assist with the annual audit by outside public
accounting firm.
11. Administer employee benefit plans and insurance.
12. Prepare press releases for review by management.
13. Handle all reporting and applications for listing on applicable stock
exchanges.
14. Coordinate all activities of Stock and Warrant Transfer Agent.
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SERVICE AGREEMENT BETWEEN PETROLEUM FINANCIAL & CRESCENT OPERATING, INC.
EXHIBIT B
to
Financial Service Agreement between Crescent Operating, Inc.
and Petroleum Financial Inc
Crescent Operating, Inc. will monthly reimburse Petroleum Financial
Inc. all reasonable and customary cost related to the services provided herein
plus 5%. Initially, Petroleum Financial Inc. will have two employees dedicated
to Crescent Operating, Inc. Any additional employees will be subject to approval
of the President and Chief Executive Officer. Such approval will not be
unreasonably withheld. Xxxxxxx X. Xxxxxxx will provide services to Crescent
Operating, Inc., on a priority basis, as required at a rate $150.00 per hour.
All personnel involved with Crescent Operating, Inc. will keep detailed time
sheets recording their activities and such time sheets will be provided with
monthly xxxxxxxx and monthly xxxxxxxx will detail all cost being billed in a
manner satisfactory to the President. It is further agreed that the parties will
revisit this Exhibit B 120 days after the Effective Date and make whatever
changes are mutually agreeable to the parties. Further, commencing six months
from the Effective Date the Consultant will present the President and annual
budget related to its activities.
