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EXHIBIT 10.131
MANAGEMENT RIGHTS AGREEMENT
This Management Rights Agreement is entered into as of February 6, 2001 by
and among Crescent Operating, Inc., a Delaware corporation ("COPI"), Crescent
Machinery Company, a Texas corporation ("CMC"), Crescent Machinery Company, LP,
a Delaware limited partnership ("CMCLP", collectively with COPI and CMC, the
"PORTFOLIO COMPANIES") and SunTx Capital Management Corp. ("SUNTX").
PRELIMINARY STATEMENTS
A. An affiliate of SunTx (the "FUND") contemplates entering into a
Securities Purchase Agreement (the "SECURITIES PURCHASE AGREEMENT") by and among
the Portfolio Companies, CRE Equipment Holdings, LLC, a Delaware limited
liability company and the Fund, under which the Fund will purchase, subject to
the satisfaction of certain conditions, an equity interest in CMCLP (the "CMCLP
INTEREST").
B. Subject to certain conditions, the CMCLP Interest may be exchangeable
for equity securities of COPI (the "COPI INTEREST", collectively with the CMCLP
Interest, the "PORTFOLIO COMPANY INTERESTS").
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants, agreements, and conditions hereafter set forth, and for other good,
valuable and binding consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. General Management Rights. The Portfolio Companies hereby (i) engage
SunTx to provide general administrative and financial advice regarding all
matters not otherwise reserved for the board of directors or general partner, as
applicable, of a Portfolio Company and (ii) in addition to following the
covenants in Section 3.1 of the Securities Purchase Agreement, agree and
covenant to consult with, and consider the advice of, SunTx prior to making any
decisions outside the ordinary course of business. In furtherance of, and not in
limitation of, the preceding, SunTx will have access to the Chief Operating
Officer of COPI, during reasonable business hours, to facilitate the purposes of
this Section 1. The advice provided by SunTx under this Section 1 will
constitute, inclusive of any services previously provided by SunTx to the
Portfolio Companies, the "SERVICES". Subject to earlier termination as set forth
in Section 6 hereof, this Section 1 shall terminate upon the earlier of the date
of termination of the Securities Purchase Agreement, date of the closing of the
transactions contemplated by the Securities Purchase Agreement, or December 31,
2001 (the earliest such date being the "TERMINATION DATE").
2. Compensation. In consideration for the Services, the Portfolio Companies
agree to pay an aggregate fee to SunTx of $1,000,000 (the "SERVICES FEE"). The
parties acknowledge that $950,000 of the Services Fee has been paid by the
Portfolio Companies and received by SunTx.
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The $50,000 remainder of the Services Fee will be payable on June 22, 2001. The
obligation of the Portfolio Companies to pay the Services Fee is joint and
several.
3. Scope of Liability and Indemnification.
(a) To the fullest extent permitted by law, SunTx (which shall include for
purposes of this Section 3 SunTx's stockholders, directors, officers and
employees and their respective affiliates) and its affiliates (each an
"INDEMNITEE") shall not be liable in excess of an aggregate amount (the
"LIABILITY CAP") of $200,000 to any Portfolio Company or any of their
stockholders or partners for any losses, damages, expenses or claims occasioned
by any act or omission of SunTx in connection with the performance of the
Services (including, without limitation information, supplied to a Portfolio
Company by SunTx based on, or SunTx's acts or failures to act in reasonable
reliance on, financial information supplied to SunTx by third parties) other
than as a result of SunTx's willful misconduct. In the case of such willful
misconduct, the Liability Cap will be increased to $1,000,000. Each of the
Portfolio Companies explicitly recognizes that the advisory opinions,
recommendations and actions of SunTx have been and will continue to be based on
advice and information considered to be reliable by, but not guaranteed by or
to, SunTx. Notwithstanding anything else in this Section 3(a), the Liability Cap
is subject to adjustment under Section 7 hereof.
(b) To the fullest extent permitted by law, each Portfolio Company shall
indemnify and hold harmless each Indemnitee from and against any expense, loss,
liability or damage arising out of any claim asserted or threatened to be
asserted in connection with the Services; provided, however, that no Indemnitee
shall be entitled to any such indemnification with respect to any expense, loss,
liability or damage which was caused by willful misconduct, gross negligence, or
reckless disregard of its obligations under this Management Rights Agreement,
and the aggregate liability of the Portfolio Companies for indemnification
hereunder shall not exceed an aggregate amount of $200,000. In the event that
SunTx or any other Indemnitee entitled to indemnification pursuant to this
Section 3 is or becomes a party to any action or proceeding in respect of which,
or there otherwise exists a claim pursuant to which, it may be entitled to seek
indemnification hereunder, the Indemnitee shall promptly notify the Portfolio
Companies thereof; provided, however, that failure to so notify the Portfolio
Companies shall not affect the Indemnitee's rights hereunder. The Portfolio
Companies shall advance to the Indemnitee the reasonable costs and expenses of
investigating and/or defending such claim, subject to receiving a written
undertaking from the Indemnitee to repay such amounts if and to the extent of
any subsequent final determination by a court or other tribunal of competent
jurisdiction that the Indemnitee was not entitled to indemnification hereunder.
The obligations of the Portfolio Companies under this Section 3(b) are joint and
several.
(c) The provisions of this Section 3 shall survive the termination of
Section 1 of this Management Rights Agreement and any termination effectuated
under Section 6 hereof.
4. Standard of Performance. All Services performed by SunTx hereunder shall
be performed in a good and workmanlike manner, in accordance with good and
customary industry practices using competent and experienced personnel (the
"SERVICE Standard"). In performing the Services, SunTx agrees to comply with all
federal, state and local laws, rules and regulations
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that are now or may in the future become applicable to the Portfolio Companies
or the performance of the Services.
5. Amendment. This Management Rights Agreement may be modified or amended
only by the agreement of the parties hereto in writing, duly executed by the
authorized representatives of each party.
6. Termination. The Portfolio Companies may terminate Section of 1 of this
Management Rights Agreement and the provision of Services thereunder at any time
in the event SunTx breaches any of the terms and conditions hereof and SunTx
fails to cure any such breach within ten (10) days after the written notice of
such breach (a breach not cured within such time period being an "UNCURED
BREACH").
7. Partial Refund.
(a) In the event that the Fund does not perform its obligations under the
Securities Purchase Agreement for any reason, other than the Enumerated Reasons
(as defined in Section 7(b) below), SunTx will refund $500,000 of the Services
Fee to the Portfolio Companies within nine months following any such
nonperformance (the "PARTIAL REFUND").
(b) For the purposes of this Section 7, the "Enumerate Reasons" are (i)
termination of the Securities Purchase Agreement due to lack of approval by the
stockholders of COPI of the transactions contemplated by the Securities Purchase
Agreement, (ii) termination of the Securities Purchase Agreement by the Fund due
to an affirmative misrepresentation made by a Portfolio Company, Crescent Real
Estate Equities Company or an affiliate thereof, (iii) the failure of any of the
Portfolio Companies to attain the required material consents as provided for in
the Securities Purchase Agreement, (iv) the failure of registration rights to be
granted as provided for in the Securities Purchase Agreement, (v) the failure of
COPI to grant an acknowledgement that the CMLP and CMC interests are convertible
into stock of COPI as provided for in the Securities Purchase Agreement, (vi)
the failure of COPI to amend its Poison Pill (as defined in the Securities
Purchase Agreement), (vii) the failure of the parties to consummate the actions
listed on Schedule 2.1(h), (viii) the failure of COPI to execute the General
Partner Letter Agreement (as defined in the Securities Purchase Agreement), (ix)
the failure of Xxxxxxxx & Xxxxxx to give a legal opinion satisfactory to SunTx
or CEH as provided for in the Securities Purchase Agreement, (x) the failure of
CEH to make the investment in SunTx Fulcrum Fund, L.P. as provided for in the
Securities Purchase Agreement, (x) the failure of COPI to make a taxable REIT
subsidiary election as provided for in the Securities Purchase Agreement, (xi)
the failure of CMC to merge into CMLP as provided for in the Securities Purchase
Agreement, (xii) the failure of COPI to maintain the assets and liabilities
before the Closing Date as provided for in the Securities Purchase Agreement,
and (xiii) the failure of CMLP to maintain a required cash balance before the
Closing Date as provided for in the Securities Purchase Agreement.
(c) In the event that an obligation to pay the Partial Refund is incurred,
the Liability Cap shall be reduced, both retroactively and prospectively, to $0.
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8. Assignment. This Management Rights Agreement shall not be assignable by
either party without the prior written consent of the other party hereto. When
duly assigned in accordance with the foregoing, this Management Rights Agreement
shall be binding upon and shall inure to the benefit of the assignee.
9. Prior Agreements. This Management Rights Agreement constitutes the
entire agreement between the parties and supersedes any prior understandings or
agreements concerning the subject matter hereof.
10. Severability. Any provision of this Management Rights Agreement that is
prohibited or unenforceable in any jurisdiction will not invalidate the
remaining provisions of this Management Rights Agreement or affect the validity
or enforceability of such provision in any other jurisdiction. In addition, any
such prohibited or unenforceable provision will be given effect to the extent
possible in the jurisdiction where such provision is prohibited or
unenforceable.
11. Governing Law. This Management Rights Agreement shall be governed by
and construed in accordance with the substantive laws of the State of Texas,
excluding its conflict of law principles.
12. Headings. Section and subsection headings in this Management Rights
Agreement are included herein for convenience of reference only and shall not
constitute a part of this Management Rights Agreement for any other purpose.
13. Counterparts. This Management Rights Agreement may be executed in any
number of counterparts, all of which taken together shall constitute one and the
same instrument, and any of the parties hereto may execute this Management
Rights Agreement by signing any such counterpart.
14. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
if to CMCLP:
Crescent Machinery Company, LP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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with a copy by mail and fax which will not constitute notice, to:
Xxxxxxxx & Xxxxxx, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to CMC:
Crescent Machinery Company
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy by mail and fax which will not constitute notice, to:
Xxxxxxxx & Knight, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to COPI:
Crescent Machinery Company
000 X. 0xx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy by mail and fax which will not constitute notice, to:
Xxxxxxxx & Knight, LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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if to SunTx:
SunTx Capital Management Corp.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxx Xxxxxxx
Telephone: (000) 000-0000 x00
Facsimile: (000) 000-0000
with a copy by mail and fax which will not constitute notice, to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
15. Construction. The parties hereto have cooperated in the drafting and
preparation of this Management Rights Agreement. Hence, in any construction to
be made of this Management Rights Agreement, the same shall not be construed
against any party on the basis that the party was the drafter.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Management Rights Agreement as of the day and year first above
written.
CRESCENT MACHINERY COMPANY, LP
By: COPI CMC GP, Inc.
Its: General Partner
By:
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Name:
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Title:
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CRESCENT MACHINERY COMPANY
By:
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Name:
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Title:
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SUNTX CAPITAL MANAGEMENT CORP.
By:
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Name:
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Title:
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CRESCENT OPERATING, INC.
By:
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Name:
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Title:
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