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EXHIBIT 4.01
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made as of the 11th day of August,
1997, by and among Crescent Real Estate Equities Company (the "Company"), a
real estate investment trust organized under the laws of the State of Texas and
UBS Securities (Portfolio) LLC, a Delaware limited liability company
("UBS-Portfolio") and Union Bank of Switzerland, London Branch, acting through
its agent UBS Securities LLC as its agent ("UBS-LB") (UBS-Portfolio and UBS-LB
being hereinafter collectively called the "UBS Parties" and sometimes
individually, a "UBS Party").
IN CONSIDERATION of the mutual covenants contained in this
Purchase Agreement, the Company and the UBS Parties agree as follows:
SECTION 1. Authorization of Sale of the Shares. Subject to
the terms and conditions of this Purchase Agreement, the Company has authorized
the sale to UBS-Portfolio of up to an aggregate of 4,700,000 common shares of
beneficial interest ("Common Shares"), $.01 par value per share (the "Purchase
Shares"), of the Company. In addition, the Company may issue to UBS-LB
additional Common Shares in settlement of certain of its obligations under the
Forward Stock Purchase (the "Forward Share Purchase Agreement"), dated August
11, 1997, between the Company and UBS-LB (the "Additional Shares"). The
Purchase Shares and the Additional Shares are hereinafter collectively called
the "Shares".
SECTION 2. Agreement to Sell and Purchase the Purchase
Shares. Subject to the terms and conditions of this Purchase Agreement, on the
Closing Date (as defined in Section 3 hereof), the Company will sell to
UBS-Portfolio the Purchase Shares, the number of which shall equal the lesser
of (i) $150,000,000 divided by the Closing Price (as defined below), rounded
down to the nearest 1,000 shares or (ii) 4,700,000, for a per share purchase
price equal to the Closing Price. The "Closing Price" shall equal the closing
price reported on the New York Stock Exchange for a Common Share on the
business day immediately preceding the Closing Date.
SECTION 3. Delivery of the Shares at the Closing.
3.1. Closing. The completion of the purchase and sale of the
Purchase Shares (the "Closing") shall occur as soon as practicable on or after
the date hereof on a business day to be agreed upon by the Company and the UBS
Parties, but in no event later than the earlier of (i) August 15, 1997 or (ii)
three business days after the execution of this Purchase Agreement
(hereinafter, the "Closing Date").
3.2. Conditions. At Closing, the Company shall deliver to UBS
Portfolio one or more stock certificates registered in the name of
UBS-Portfolio representing the number of Purchase Shares set forth in Section 2
above.
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The Company's obligation to complete the purchase and sale of
the Purchase Shares and deliver such stock certificate(s) to UBS Portfolio at
the Closing shall be subject to the following conditions, any one or more of
which may be waived by the Company: (i) receipt by the Company of Federal Funds
(or other mutually agreed upon form of payment) in the full amount of the
purchase price for the Purchase Shares being purchased hereunder, (ii) the
accuracy in all material respects, as of the Closing Date, of the
representations and warranties made by the UBS Parties herein and the
fulfillment in all material respects of those undertakings of the UBS Parties
to be fulfilled prior to the Closing, (iii) the Forward Share Purchase
Agreement shall have been fully executed and delivered by the parties thereto,
and (iv) receipt by the Company of a cross-receipt with respect to the Purchase
Shares executed by UBS-Portfolio and a certificate by an officer or authorized
representative of UBS-Portfolio to the effect that the representations and
warranties of UBS Portfolio set forth in Section 5 hereof are true and correct
as of the date of this Agreement and as of the Closing Date.
UBS Portfolio's obligation to accept delivery of such stock
certificate(s) and to pay for the Purchase Shares evidenced thereby shall be
subject to the following conditions: (i) the accuracy in all material respects,
as of the Closing Date, of the representations and warranties made by the
Company herein and the fulfillment in all material respects, as of the Closing
Date, of those undertakings of the Company to be fulfilled prior to Closing,
(ii) receipt by the UBS Parties of all opinions and certificates to be
delivered by the Company pursuant to this Purchase Agreement, (iii) the Forward
Share Purchase Agreement shall have been fully executed by the parties thereto
and (iv) receipt by UBS Portfolio of a cross-receipt with respect to the
purchase price for the Purchaser Shares executed by the Company.
SECTION 4. Representations, Warranties and Covenants of the
Company. The Company hereby represents and warrants to, and covenants with, the
UBS Parties as follows:
4.1. Organization and Qualification. The Company has been
formed as a real estate investment trust under the laws of the State of Texas
with power and authority to conduct its business as currently conducted and,
according to the County Clerk of Tarrant County, Texas, the Restated
Declaration of Trust of the Company is recorded in Volume 12645, beginning at
Page 1811, in the records of the County Clerk, is in effect, and no
dissolution, revocation or forfeiture proceedings regarding the Company have
been commenced.
4.2. Authorized Capital Stock. The Company has authorized
and outstanding capital stock as of July 31, 1997 consisting of 97,392,227
Common Shares outstanding, 4,932,330 options granted on Common Shares,
6,631,731 units ("Units") issued by Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership (the "Partnership") and 2,000,000
options granted on Units. The issued and outstanding Common Shares of the
Company have been duly authorized and validly issued, are fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase securities.
Other than as described above in this Section 4.2, the Company does not have
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outstanding any options to purchase, or any preemptive rights or other similar
rights to subscribe for or to purchase, any securities or obligations
convertible into, shares of its capital stock or any such options, rights,
convertible securities or obligations. The Company's publicly available
filings with the Securities and Exchange Commission ("Public Filings") contain
as of the dates thereof an accurate and fair description of the Company's
stock, stock bonus and other stock plans or arrangements and the options or
other rights granted and exercised thereunder.
4.3. Issuance, Sale and Delivery of the Shares. The Purchase
Shares to be sold by the Company have been duly authorized and, when issued,
delivered and paid for in the manner set forth in this Purchase Agreement, will
be duly authorized, validly issued, fully paid and nonassessable. The
Additional Shares have been duly authorized and, if and when issued pursuant to
the Forward Share Purchase Agreement, will be validly issued, fully paid and
nonassessable. None of the Shares when issued and delivered to the UBS Parties
shall be subject to any lien, security interest, claim, charge or encumbrance
of any nature. Other than the UBS Parties, no shareholder of the Company has
any right, which has not or will not have been waived or has not expired by
reason of lapse of time following notification of the Company's intent to file
any Registration Statement (as defined below) pursuant to Section 7.1, to
require the Company to register the sale of any shares owned by such
shareholder under the Securities Act of 1933, as amended (the "Securities
Act"), in such Registration Statement. No approval of or authorization by the
shareholders or the Board of Trust Managers of the Company will be required for
the issuance and/or sale of the Shares to be sold by the Company as
contemplated herein or in the Forward Stock Purchase Agreement, except such as
shall have been obtained on or before the Closing Date. The issuance and/or
sale of the Shares to the UBS Parties by the Company pursuant to this Purchase
Agreement or the Forward Share Purchase Agreement (as the case may be), the
compliance by the Company with the other provisions of this Purchase Agreement
or the Forward Share Purchase Agreement and the consummation of the other
transactions contemplated hereby or thereby do not require the consent,
approval, authorization, registration or qualification of or with any
governmental authority, except such as shall have been obtained on or before
the Closing Date or in connection with any Registration Statement filed with
respect to any of the Shares. The Company meets and will continue to meet the
requirements for use of Form S-3 under the Securities Act and the rules and
regulations promulgated thereunder (the "Rules and Regulations"). The Company
has filed and will file all documents which it is required to file under the
Securities Exchange Act of 1934, as amended (the "Exchange Act") and all such
documents comply and will comply in all material respects with the requirements
of the Exchange Act and the rules and regulations thereunder, as applicable,
and none of such documents, when so filed, contained or will contain any untrue
statement of a material fact or omitted or will omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. No Registration Statement filed in respect of any of the Shares,
when so filed, contained or will contain any untrue statement of a material
fact or omitted or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
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4.4. Due Execution, Delivery and Performance. The Company
has full legal right, power and authority to enter into this Purchase Agreement
and the Forward Share Purchase Agreement and perform the transactions
contemplated hereby and thereby. This Purchase Agreement and the Forward Share
Purchase Agreement have been duly authorized, executed and delivered by the
Company. The making and performance of the Purchase Agreement and the Forward
Share Purchase Agreement by the Company and the consummation of the
transactions herein and therein contemplated will not violate any provision of
the declaration of trust or bylaws, or other organizational documents, of the
Company, and will not conflict with, result in the breach or violation of, or
constitute, either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, credit agreement, lease,
franchise, license, indenture, permit or other instrument to which the Company
is a party or by which the Company or its properties may be bound or affected,
any statute or any authorization, judgment, decree, order, rule or regulation
of any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its properties, except
such as will not have a material adverse effect on the condition (financial or
otherwise), business, results of operations or prospects of the Company. No
consent, approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body is required for the execution
and delivery of this Purchase Agreement, the Forward Share Purchase Agreement
or the consummation of the transactions contemplated hereby or thereby, except
in connection with the filing of any Registration Statements pursuant to
Section 7 below or for compliance with the blue sky laws applicable to the
offering of the Shares. Upon the execution and delivery hereof, each of the
Purchase Agreement and the Forward Share Purchase Agreement will constitute the
valid and binding obligation of the Company, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law) and except as
enforcement of the indemnification agreements of the Company in Section 7.5
hereof may be limited by public policy.
4.5. Accountants. The Company's independent certified public
accountants, who have expressed their opinion with respect to the Most Recent
Financial Statements (as defined below), are independent accountants as
required by the Securities Act and the Rules and Regulations. The Company
shall cause the independent certified public accountants to deliver, on the
effective date of each Registration Statement, a consent to the inclusion in
such Registration Statement of their opinion with respect to the Most Recent
Financial Statements.
4.6. No Defaults. Except as to defaults, violations and
breaches which individually or in the aggregate would not be material to the
Company, the Company is not in violation or default of any provision of its
declaration of trust or bylaws, or other organizational documents, or is not in
breach of or default with respect to any provision of any agreement, judgment,
decree, order, mortgage, deed of trust, credit agreement, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which it or any of its properties
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are bound; and there does not exist any state of fact which constitutes an
event of default on the part of the Company as defined in such documents or
which, with notice or lapse of time or both, would constitute such an event of
default except such defaults which individually or in the aggregate would not
be material to the Company.
4.7. No Actions. There are no legal or governmental actions,
suits or proceedings pending or, to the best of the Company's knowledge,
threatened to which the Company is or may be a part or of which property owned
or leased by the Company is or may be the subject, or related to environmental
or discrimination matters, which actions, suits or proceedings might,
individually or in the aggregate, prevent or adversely affect the transactions
contemplated by this Agreement or result in a material adverse change in the
condition (financial or otherwise), properties, business, results of operations
or prospects of the Company, and no labor disturbance by the employees of the
Company exists or is imminent which might be expected to affect adversely such
condition, properties, business, results of operations or prospects. The
Company is neither a party nor subject to the provisions of any material
injunction, judgment, decree or order of any court, regulatory body
administrative agency or other governmental body.
4.8. Properties. The Company has good and marketable title
to all the properties and assets reflected as owned by it in the financial
statements included in the Most Recent Financial Statements, subject to no
lien, mortgage, pledge, charge or encumbrance of any kind except (i) those, if
any, reflected in such financial statements, or (ii) those which are not
material in amount and do not adversely affect the use made and promised to be
made of such property by the Company. The Company holds its leased properties
under valid and binding leases, with such exceptions as are not materially
significant in relation to the business of the Company. The Company owns or
leases all such properties as are necessary to its operations as now conducted.
The Company qualified as a real estate investment trust under the Internal
Revenue Code of 1986, as amended, with respect to its taxable years ended
December 31, 1994, December 31, 1995 and December 31, 1996, and is organized in
conformity with the requirements for qualification as a real estate investment
trust, and its manner of operation has enabled it to meet the requirements for
qualification as a real estate investment trust as of the date hereof, and its
proposed manner of operation will enable it to meet the requirements for
qualification as a real estate investment trust in the future.
4.9. No Material Change. Since the date of the Most Recent
Financial Statements, and except as otherwise disclosed in the Company's Public
Filings as of the Closing Date or in writing to the UBS Parties, (i) the
Company has not incurred any material liabilities or obligations, indirect, or
contingent, or entered into any material written or, to the Company's
knowledge, verbal agreement or other transaction which is not in the ordinary
course of business (it being agreed that for purposes of this sentence the
Company's ordinary course of business shall include the acquisition, directly
or indirectly, of real estate properties or businesses of a type that may be
owned by a "real estate investment trust" (as defined under the Internal
Revenue Code) or which could reasonably be expected to result in a material
reduction in the future earnings of the Company; (ii) the Company has not
sustained any material loss or interference
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with its businesses or properties from fire, flood, windstorm, accident or
other calamity, whether or not covered by insurance; (iii) the Company is not
in default in the payment of principal or interest on any outstanding debt
obligations; (iv) there has not been any change in the capital stock of the
Company (other than the sale of the Purchase Shares hereunder or those reserved
for issuance pursuant to the Forward Share Purchase Agreement, issuances
pursuant to the incentive compensation plans of the Company, exchanges of
Units pursuant to the limited partnership agreement of the Partnership or
issuances under the Company's shelf registration statement (No. 333-21905), or
indebtedness material to the Company (other than in the ordinary course of
business); and (v) there has not been any material adverse change in the
condition (financial or otherwise), business, results of operations or
prospects of the Company.
4.10. Intellectual Property. The Company believes it has
sufficient trademarks, trade names, patent rights, copyrights, licenses,
approvals and governmental authorizations to conduct its businesses as now
conducted; and the Company has no knowledge of any material infringement by it
of trademark, trade name rights, patent rights, copyrights, licenses, trade
secrets or other similar rights of others, and no claim has been made against
the Company regarding trademark, trade name, patent, copyright, license, trade
secrecy or other infringement which could have a material adverse effect on the
condition (financial or otherwise), business, results of operations or
prospects of the Company.
4.11. Compliance. The Company has not been advised, and has
no reason to believe, that it is not conducting business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it is
conducting business, including, without limitation, all applicable local, state
and federal environmental laws and regulations; except where failure to be so
in compliance would not materially adversely affect the condition (financial or
otherwise), business, results of operations or prospects of the Company.
4.12. Taxes. The Company has filed and paid (except for
those taxes which are being contested in good faith through appropriate
proceeding, for which adequate reserves have been established and as to which
UBS has been notified in writing by the Company) all necessary federal, state
and foreign income and franchise tax returns and has paid or accrued all taxes
shown as due thereon, and the Company has no knowledge of any tax deficiency
which has been or might be asserted or threatened against the Company which
could materially adversely affect the business condition (financial or
otherwise), results of operations or prospects of the Company.
4.13. Transfer Taxes. On the Closing Date, all stock
transfer or other taxes, if any (other than income taxes) which are required to
be paid in connection with the sale and transfer of the Purchase Shares to be
sold to UBS-Portfolio hereunder will be, or will have been, fully paid or
provided for by the Company and all laws imposing such taxes will be or will
have been fully complied with.
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4.14. Investment Company. The Company is not required to
register as an "investment company" as such term is defined in the Investment
Company Act of 1940, as amended.
4.15. Insurance. The Company maintains insurance (or
insurance is maintained on its behalf) of the types and in the amounts
generally deemed adequate under customary industry standards for its business,
including, but not limited to, insurance covering all real and personal
property owned or leased by the Company against theft, damage, destruction,
acts of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
4.16. Additional Information. The Company represents and
warrants that the information contained in the following documents, which the
Company has furnished to the UBS Parties, or will furnish or make available
upon request prior to the Closing, is or will be true and correct in all
material respects as of their respective filing dates:
(a) Annual Report on Form 10-K for the year ended
December 31, 1996;
(b) Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997;
(c) the Company's most recently available audited
financial statements together with the report thereon
of the independent certified public accountants (the
"Most Recent Financial Statements");
(d) the Company's proxy statements on Form 14A relating
to (i) the most recent Annual Meeting of the
Company's Shareholders and (ii) any Special Meetings
of the Company's Shareholders which occurred during
the 12 month period prior to the date hereof or for
which a meeting date has been fixed and a proxy
statement distributed; and
(e) all other documents, if any, filed by or with respect
to the Company with the Securities and Exchange
Commission (the "Commission") since May 14, 1997
pursuant to Sections 13, 15(d) or 16(a) of the
Exchange Act; and
(f) a covenant compliance certification stating that the
Company and its subsidiaries are not in default under
unsecured revolving line of credit provided for under
that certain Second Amended and Restated Revolving
Credit Agreement, dated as of June 6, 1997, between
the Partnership, as borrower, and BankBoston, N.A.,
as lead agent.
4.17. Legal Opinion. Prior to the Closing, counsel to the
Company will deliver its legal opinion to the UBS Parties in substantially the
form of Exhibit A hereto.
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4.18 ERISA. The Company and its affiliates are in compliance
in all material respects with all applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended and the rules and
regulations promulgated thereunder ("ERISA"). Neither a Reportable Event (as
defined under ERISA) nor a Prohibited Transaction (as defined under ERISA) has
occurred with respect to any Plan (as defined below) of the Company and/or its
affiliates; no notice of intent to terminate a Plan has been filed nor has any
Plan been terminated within the past five years; no circumstance exists which
constitutes grounds under Section 402 of ERISA entitling the Pension Benefit
Guaranty Corporation ("PBGC") to institute proceedings to terminate, or appoint
a trustee to administer, a Plan, nor has the PBGC instituted any such
proceedings; the Company and its affiliates have not completely or partially
withdrawn under Sections 4201 or 4202 of ERISA from any Multiemployer Plan (as
defined therein); the Company and its affiliates have met the minimum funding
requirements of Section 412 of the Internal Revenue Code of 1986, as amended
(the "Code") and Section 302 of ERISA with respect to each Plan and there is no
unfunded current liability (as defined below) with respect to any Plan; the
Company and its affiliates have not incurred any liability to the PBGC under
ERISA (other than for the payment of premiums under Section 4007 of ERISA); no
part of the funds to be used by the Company in satisfaction of its obligations
under this Purchase Agreement or the Forward Share Purchase Agreement
constitute "plan assets" of any "employee benefit plan" within the meaning of
ERISA or of any "plan" within the meaning of Section 4975(e)(1) of the Code, as
interpreted by the Internal Revenue Service and the U.S. Department of Labor in
rules, regulations, releases and bulletins or as interpreted under applicable
case law. As used below, "Plan" means an "employee benefit plan" or "plan" as
described in Section 3(3) of ERISA; and "unfunded current liability" has the
meaning provided in Section 302(d)(8)(A) of ERISA.
4.19 Environmental Protection. To the Company's knowledge,
except as disclosed in its Public Filings, none of the Company's or its
affiliates' properties contain any Hazardous Materials that, under any
Environmental Law, (i) would impose liability on the Company or any affiliate
that is likely to have material adverse effect on the condition (financial or
other), business, results of operations, or prospects, of the Company or (ii)
is likely to result in the imposition of a lien on any assets owned, directly
or indirectly, by the Company. To the Company's knowledge, neither it nor any
affiliate is subject to any existing, pending or threatened investigation or
proceeding by any governmental agency or authority with respect or pursuant to
any Environmental Law, except any which, if adversely determined, would not
have a material adverse effect on the condition (financial or other), business,
results of operations or prospects of the Company. As used herein,
"Environmental Laws" mean all federal, state, local and foreign environmental,
health and safety laws, codes and ordinances and all rules and regulations
promulgated thereunder, including, without limitation laws relating to
emissions, discharges, releases or threatened releases of pollutants,
contaminants, chemicals, or industrial, toxic or hazardous substances or wastes
into the environment (including, without limitation, air, surface water, ground
water, land surface or subsurface strata) or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, contaminants, chemicals, or industrial,
solid, toxic or hazardous substances or wastes;
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and "Hazardous Material" includes, without limitation, (i) all substances which
are designated pursuant to Section 311(b)(2)(A) of the Federal Water Pollution
Control Act ("FWPCA"), 33 U.S.C Section 1251 et seq.; (ii) any element,
compound, mixture, solution, or substance which is designated pursuant to
Section 102 of the Comprehensive Environmental Response, Compensation and
Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq.; (iii) any hazardous
waste having the characteristics which are identified under or listed pursuant
to Section 3001 of the Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. Section 6901 et seq.; (iv) any toxic pollutant listed under Section
307(a) of the FWPCA; (v) any hazardous air pollutant which is listed under
Section 112 of the Clean Air Act, 42 U.S.C. Section 7401 et seq.; (vi) any
imminently hazardous chemical substance or mixture with respect to which action
has been taken pursuant to Section 7 of the Toxic Substances Control Act, 15
U.S.C. Section 2601 et seq.; and (vii) petroleum, petroleum products,
petroleum by-products, petroleum decomposition by-products, and waste oil.
4.20. Solvency. Immediately following (i) the execution of
this Purchase Agreement and the Forward Share Purchase Agreement, (ii) the
purchase of the Purchase Shares pursuant hereto and (iii) the completion of any
other transaction contemplated by this Purchase Agreement and the Forward Share
Purchase Agreement, the Company will be solvent and able to pay its debts as
they mature, will have capital sufficient to carry on its business and all
businesses in which it is to engage, and will have assets which will have a
present fair market valuation greater than the amount of all of its
liabilities. This Purchase Agreement and the Forward Share Purchase Agreement
have been executed and delivered by the Company in good faith and in exchange
for reasonably equivalent value. The Company does not intend to incur debts
beyond its ability to pay them as they become due. The Company's assets and
capital are now, and are expected in the future to be, sufficient to pay the
Company's ongoing expenses as they are incurred and to discharge all of the
Company's liabilities in the event that the business of the Company is required
to be liquidated. The Company has not entered into this Purchase Agreement or
the Forward Share Purchase Agreement or any transaction contemplated hereby or
thereby with an intent to hinder, delay or defraud creditors of any person or
entity.
4.21. Certificate. A certificate of the Company executed by
the Vice Chairman of the Board or President and the chief financial or
accounting officer of the Company, to be dated the Closing Date in form and
substance satisfactory to the UBS Parties to the effect that the
representations and warranties of the Company set forth in this Section 4 are
true and correct as of the date of this Agreement and as of the Closing Date,
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied on or prior to such Closing
Date.
SECTION 5. Representations, Warranties and Covenants of the
UBS Parties.
5.1. Investment. UBS-Portfolio represents and warrants to,
and covenants with, the Company that: (i) UBS- Portfolio is knowledgeable,
sophisticated and experienced in making, and is qualified to make, decisions
with respect to investments in shares presenting an
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investment decision like that involved in the purchase of the Purchase Shares,
including investments in securities issued by the Company; (ii) UBS-Portfolio
is acquiring the number of Purchase Shares set forth in Section 2 above in the
ordinary course of its business and for its own account for investment (as
defined for purposes of the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976 and the regulations thereunder) only and with no present intention of
distributing any of such Purchase Shares or any arrangement or understanding
with any other persons regarding the distribution of such Shares (this
representation and warranty not limiting right of either UBS Party to sell
pursuant to any Registration Statement), (iii) neither UBS Party will, directly
or indirectly, sell or otherwise dispose of (or solicit any offers to purchase
or otherwise acquire) any of the Shares except in compliance with the
Securities Act and any applicable state securities or blue sky laws; and (iv)
each UBS Party has completed or caused to be completed the Registration
Statement Questionnaire and the Stock Certificate Questionnaire, both attached
hereto as Appendix I, for use in preparation of each Registration Statement and
the answers thereto are true and correct as of the date hereof and will be true
and correct as of the effective date of each Registration Statement.
5.2. Resale. Each UBS Party acknowledges and agrees that in
connection with any transfer of any Shares it will provide to the transfer
agent prompt notice of any Shares sold pursuant to a Registration Statement or
otherwise transferred in compliance with applicable federal and state
securities laws. The UBS Parties acknowledge that there may occasionally be
times when the Company must suspend the right of the UBS Parties to effect
sales of the Shares through the use of the Prospectus forming a part of a
Registration Statement until such time as an amendment to such Registration
Statement has been filed by the Company and declared effective by the
Commission, or until such time as the Company has filed an appropriate report
with the Commission pursuant to the Exchange Act (each, a "Black-out Period");
provided that no Black-out Period shall exceed 30 consecutive days. Each UBS
Party hereby covenants that it will not sell any Shares pursuant to said
Prospectus during the period commencing at the time at which the Company gives
the UBS Parties written notice of the suspension of the use of said Prospectus
and ending at the time the Company gives the UBS Parties written notice that
the UBS Parties may thereafter effect sales pursuant to said Prospectus. Each
UBS Party further covenants to notify the Company promptly of the sale of all
of its Shares.
5.3. Due Execution, Delivery and Performance of this
Agreement. The UBS Parties further represents and warrants to, and covenants
with, the Company that (i) each UBS Party has full right, power, authority and
capacity to enter into this Agreement and to consummate the transactions
contemplated hereby and has taken all necessary action to authorize the
execution, delivery and performance of this Agreement, and (ii) upon the
execution and delivery of this Agreement, this Agreement shall constitute a
valid and binding obligation of the UBS Parties enforceable in accordance with
its terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting creditors' and
contracting parties' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a
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proceeding in equity or at law) and except that the enforcement of the
indemnification agreements of the UBS Parties in Section 7.3 hereof may be
limited by public policy.
5.4 Residence of UBS-Portfolio. UBS-Portfolio is organized
in the State of Delaware and has its principal place of business in the State
of New York.
SECTION 6. Survival of Representations, Warranties and
Agreements. Notwithstanding any investigation made by any party to this
Purchase Agreement, all covenants, agreements, representations and warranties
made by the Company, and the UBS Parties herein shall survive the execution of
this Purchase Agreement, the Forward Share Purchase Agreement, the delivery to
the UBS Parties of the Purchase Shares being purchased and the payment therefor
and the consummation of any other transactions contemplated hereby or thereby.
SECTION 7. Registration of the Shares; Compliance with the Securities Act.
7.1. Registration Procedures and Expenses. The Company
shall:
(a) as soon as practicable after the Closing, prepare and
file with the Commission a Registration Statement (as
defined below) covering the resale by the UBS
Parties, from time to time, of up to a number of
Shares equal to 130% of the number of Purchase Shares
through the facilities of the New York Stock
Exchange, the automated quotation system of The
Nasdaq Stock Market or the facilities of any other
national securities exchange on which the Company's
common stock is then traded or in
privately-negotiated transactions (the "Initial
Registration Statement"). If the total number of
Shares exceeds the number of Shares covered by the
Initial Registration Statement, then the Company
shall prepare and file with the Commission such
additional Registration Statement or Statements as
shall be necessary to cover the resale by UBS-LB of
such excess Shares in the same manner as contemplated
by the Initial Registration Statement for the Shares
covered thereby (each, an "Additional Registration
Statement"); provided that prior to issuing any such
excess Shares to UBS-LB, the Company shall cause such
Registration Statement to have become effective. For
purposes of this Purchase Agreement, "Registration
Statement" means a registration statement under the
Securities Act on Form S-3 covering the resale by one
or both UBS Parties of up to a specified number of
Shares, filed and maintained effective by the Company
pursuant to the provisions of this Section 7,
including the Prospectus (as defined below) contained
therein, any amendments and supplements to such
registration statement, including all post-effective
amendments thereto, and all exhibits and all material
incorporated by reference into such registration
statement;
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(b) use all reasonable best efforts to cause the
Commission to notify the Company of the Commission's
willingness to declare the Initial Registration
Statement effective as soon as practicable and in any
event within 60 days after the Closing Date; provided
that the Company will use its best efforts to cause
such Initial Registration Statement to become
effective no later than 90 days after the Closing
Date;
(c) prepare and file with the Commission such amendments
and supplements to each Registration Statement and
the prospectus used in connection therewith (the
"Prospectus") as may be necessary to keep such
Registration Statement effective until the date on
which the Shares covered thereby may be resold by the
UBS Parties without registration, by reason of Rule
144(k) under the Securities Act or any other rule of
similar effect;
(d) furnish to the UBS Parties with respect to the Shares
registered under any Registration Statement (and to
each underwriter, if any, of such Shares) such
reasonable number of copies of Prospectuses,
including any supplements and amendments thereto, an
opinion from counsel to the Company covering the
matters set forth on Exhibit B hereto and such other
documents as the UBS Parties may reasonably request,
in order to facilitate the public sale or other
disposition of all or any of the Shares by the UBS
Parties;
(e) use its reasonable best efforts to prevent the
happening of any event that would cause any such
Registration Statement to contain a material
misstatement or omission or to be not effective and
useable for resale of the Shares during the period
that such Registration Statement is required to be
effective and usable;
(f) file documents required of the Company for normal
blue sky clearance in states specified in writing by
the UBS Parties, provided, however, that the Company
shall not be required to qualify to do business or
consent to service of process in any jurisdiction in
which it is not now so qualified or has not so
consented; and
(g) bear all expenses in connection with the procedures
in paragraphs (a) through (f) of this Section 7.1 and
the registration of the Shares pursuant to each
Registration Statement, the enforcement of this
Purchase Agreement or the Forward Stock Purchase
Agreement, the Master Agreement referred to in the
Forward Stock Purchase Agreement, including the
reasonable fees and expenses of counsel or other
advisers to
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the UBS Parties, other than underwriting discounts,
brokerage fees and commissions incurred by either UBS
Party, if any.
7.2. Covenants in Connection With Registration.
(a) The Company hereby covenants with the UBS Parties that (i)
it shall not file any Registration Statement or Prospectus or any amendment or
supplement thereto, unless a copy thereof shall have been first submitted to
the UBS Parties and the UBS Parties did not object thereto in good faith
(provided that if the UBS Parties do not object within two business days of
receiving any such material, they shall be deemed to have no objection
thereto); (ii) it shall immediately notify the UBS Parties of the issuance by
the Commission of any stop order suspending the effectiveness of such
Registration Statement or the initiation of any proceedings for such purpose;
(iii) it shall make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of such Registration Statement at the
earliest possible moment; (iv) it shall notify the UBS Parties of the receipt
of any notification with respect to the suspension of the qualification of the
Shares for sale under the securities or blue sky laws of any jurisdiction or
the initiation of any proceeding for such purpose; and (v) it shall as soon as
practicable notify the UBS Parties in writing of the existence of any fact
which results in any Registration Statement, any amendment or post- effective
amendment thereto, the Prospectus, any prospectus supplement, or any document
incorporated therein by reference containing an untrue statement of a material
fact or omitting to state a material fact required to be stated therein or
necessary to make the statements therein not misleading and shall prepare a
supplement or post-effective amendment to such Registration Statement or the
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Shares, the Prospectus will not contain an untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein not
misleading.
(b) The UBS Parties shall notify the Company at least two
business days prior to the date on which it intends to commence effecting any
resales of Shares under a Registration Statement and if the Company does not,
within such two day period, advise the UBS Parties of the existence of any
facts of the type referred to in Section 7.2(a)(iv) above, then the Company
shall be deemed to have certified and represented to the UBS Parties that no
such facts then exist and the UBS Parties may rely on such certificate and
representation in making such sales. The preceding sentence shall in no way
limit the Company's obligations under Section 7.2(a) above.
7.3. Extension of Required Effectiveness. In the event that
the Company shall give any notice required by Section 7.2(a)(vi) hereof, the
period during which the Company is required to keep such Registration Statement
effective and useable shall be extended by the number of days during the period
from and including the date of the giving of such notice to and including the
date when the UBS Parties are advised in writing by the Company that the use of
the Prospectus may be resumed.
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7.4. Transfer of Shares After Registration. Each UBS Party
agrees that it will not effect any disposition of the Shares or its right to
purchase the Shares that would constitute a sale within the meaning of the
Securities Act or pursuant to any applicable state securities or blue sky laws
except as contemplated in each Registration Statement referred to in Section
7.1 or except pursuant to any exemption from the registration requirements of
the Securities Act (including, without limitation, Rule 144 promulgated
thereunder and any successor thereto) and that it will promptly notify the
Company of any changes in the information set forth in any such Registration
Statement regarding the UBS Parties or its Plan of Distribution.
7.5. Indemnification. For the purpose of this Section 7.5,
the term "Registration Statement" shall include any final prospectus, exhibit,
supplement or amendment included in or relating to any Registration Statement
referred to in Section 7.1.
(a) Indemnification by Company. The Company agrees to
indemnify and hold harmless the UBS Parties and each person, if any, who
controls either UBS Party within the meaning of the Securities Act, against any
losses, claims, damages, liabilities or expenses, joint or several, to which
the UBS Parties or such controlling person may become subject (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement, including the
Prospectus, financial statements and schedules, and all other documents filed
as a part thereof, as amended at the time of effectiveness of such Registration
Statement, including any information deemed to be a part thereof as of the time
of effectiveness pursuant to paragraph (b) of Rule 430A, or pursuant to Rule
434, of the Rules and Regulations, or the Prospectus, in the form first filed
with the Commission pursuant to Rule 424(b) of the Regulations, or filed as
part of such Registration Statement at the time of effectiveness if no Rule
424(b) filing is required, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state in any of them a
material fact required to be stated therein or necessary to make the statements
in any of them not misleading, and will reimburse each UBS Party and each such
controlling person for any legal and other expenses as such expenses are
reasonably incurred by the UBS Parties or such controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. The Company will also indemnify
selling brokers, dealers and similar securities industry professionals
participating in the sale or resale of the Shares, their officers, directors
and partners and each person who controls any such person within the meaning of
the Securities Act, provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage, liability or
expense arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement,
such Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company (i) by or on
behalf of the UBS Parties expressly for use therein or (ii) any statement or
omission in any Prospectus that is corrected in any subsequent Prospectus that
was delivered to a UBS Party prior to the pertinent
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sale or sales by such UBS Party and not delivered by such UBS Party in
connection with such sale or sales.
(b) Indemnification by UBS Parties. The UBS Parties will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed any Registration Statement and each person, if any, who
controls the Company within the meaning of the Securities Act, against any
losses, claims, damages, liabilities or expenses, joint and several, to which
the Company, each of its directors, each of its officers who signed any
Registration Statement or any controlling person may become subject (including
in settlement of any litigation, if such settlement is effected with the
written consent of the UBS Parties) insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in such Registration Statement, such Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in such
Registration Statement, such Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by or on behalf of the UBS Parties expressly for use therein,
and will reimburse the Company, each of its directors, each of its officers who
signed such Registration Statement and each controlling person for any legal
and other expense reasonably incurred by the Company, each of its directors,
each of its officers who signed such Registration Statement or controlling
person in connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action.
(c) Proceedings. Promptly after receipt by an indemnified
party under this Section 7.5 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party under this Section 7.5 notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party for contribution or otherwise than under the indemnity
agreement contained in this Section 7.5 or to the extent it is not prejudiced
as a proximate result of such failure. In case any such action is brought
against any indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions of
the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate
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counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified party of its
election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 7.5 for any reasonable legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof unless (i) the indemnified party shall have employed such
counsel in connection with the assumption of legal defenses in accordance with
the proviso to the preceding sentence (it being understood, however, that the
indemnifying party shall be not liable for the expenses of more than one
separate counsel, approved by such indemnifying party in the case of paragraph
(a), representing the indemnified parties who are parties to such action) or
(ii) the indemnifying party shall not have employed counsel reasonably
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
(d) Contribution. If the indemnification provided for in
this Section 7.5 is required by its terms but is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an indemnified party
under paragraphs (a), (b) or (c) of this Section 7.5 in respect of any losses,
claims, damages, liabilities or expenses referred to herein, then each
applicable indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of any losses, claims, damages, liabilities
or expenses referred to herein in such proportion as is appropriate to reflect
the relative benefits received by the Company and the UBS Parties from the
purchase and sale of the Shares and the relative fault of the Company and the
UBS Parties in connection with the statements or omissions or inaccuracies in
the representations and warranties in this Agreement which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The respective relative benefits received by the
Company on the one hand and the UBS Parties on the other shall be deemed to be
in the same proportion as the amount paid by the UBS Parties to the Company
pursuant to this Agreement for the Shares purchased by the UBS Parties that
were sold pursuant to any Registration Statement bears to the difference (the
"Difference") between the amount the UBS Parties paid for the Shares that were
sold pursuant to such Registration Statement and the amount received by the UBS
Parties from such sale. The relative fault of the Company and the UBS Parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact or the inaccurate or the alleged inaccurate
representation and/or warranty relates to information supplied by the Company
or by the UBS Parties and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in paragraph (c) of this Section 7.5 any
reasonable legal or other fees or expenses incurred by such party in connection
with investigating or defending any action or claim. The provisions set forth
in paragraph (c) of this Section 7.5 with respect to notice of commencement of
any action shall apply if a claim for contribution is to be made under this
paragraph (d); provided, however, that
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no additional notice shall be required with respect to any action for which
notice has been given under paragraph (c) for purposes of indemnification. The
Company and the UBS Parties agree that it would not be just and equitable if
contribution pursuant to this Section 7.5 were determined solely by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in this paragraph. Notwithstanding
the provisions of this Section 7.5, the UBS Parties shall not be required to
contribute any amount in excess of the amount by which the aggregate proceeds
received by the UBS Parties from the transactions contemplated hereby exceeds
the amount of any damages that the UBS Parties has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
7.6. Termination of Conditions and Obligations. The
conditions precedent imposed by Section 5 or this Section 7 upon the
transferability of the Shares shall cease and terminate as to any particular
number of the Purchase Shares upon the passage of twenty-four months from the
purchase of such Shares by UBS-Portfolio, as to any particular number of the
Additional Shares upon the passage of twenty-four months from the issuance of
such Shares to UBS-LB or as to any particular number of the Shares at such time
as an opinion of counsel satisfactory to the Company shall have been rendered
to the effect that such conditions are not necessary in order to comply with
the Securities Act. At such time, the Company's obligation to maintain an
effective Registration Statement with respect to such Shares shall cease.
7.7. Information Available. So long as any Registration
Statement covering the resale of any Shares owned by either UBS Party is
effective, the Company will furnish to the UBS Parties:
(a) as soon as practicable after available, one copy of
(i) its Annual Report to Shareholders, (ii) its
Annual Report on Form 10-K, (iii) its Quarterly
Reports to Shareholders, (iv) its quarterly reports
on Form 10-Q, (v) a full copy of the particular
Registration Statement covering the Shares (the
foregoing, in each case, excluding exhibits and (vi)
upon request, any or all other Public Filings by the
Company; and
(b) upon the reasonable request of either UBS Party, a
reasonable number of copies of the Prospectuses to
supply to any other party requiring such
Prospectuses;
and the Company, upon the reasonable request of the UBS Parties, will meet with
the UBS Parties or a representative thereof at the Company's headquarters to
discuss all information relevant for disclosure in such Registration Statement
covering the Shares, subject to appropriate confidentiality limitations.
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7.8 Non-Exclusivity. The rights and remedies provided under
Section 7.5 hereof shall not be in limitation or exclusion of any other rights
or remedies available to a party, whether by agreement, at law, in equity or
otherwise, with respect to the inaccuracy of any representation or warranty by,
or the breach of any covenant of, the other party made herein or in the Forward
Share Purchase Agreement.
7.9 Notice Requirement. The Company covenants and agrees
that it will notify the UBS Parties at any time it becomes aware that as a
result of a change in the Company's capital stock the UBS Parties beneficially
hold more than 4.9% of the Company's Common Shares.
SECTION 8. Registration Exemptions. For so long as the
Company is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act, the Company covenants that it will file the reports required to
be filed by it under the Securities Act and Section 13(a) and 15(d) of the
Exchange Act and the rules and regulations adopted by the Commission
thereunder.
SECTION 9. Broker's Fee. Other than any fees payable under
or in connection with the Forward Share Purchase Agreement, each of the parties
hereto hereby represents that, on the basis of any actions and agreements by
it, there are no brokers or finders entitled to compensation in connection with
the sale or issuance of the Shares to the UBS Parties.
SECTION 10. Notices. All notices, requests, consents and
other communications hereunder shall be in writing, shall be mailed by
first-class registered or certified airmail, by telegram or telecopy or sent by
nationally recognized overnight express courier postage prepaid, and shall be
deemed given when so mailed or for telecopies, when transmitted and receipt
confirmed, and shall be delivered as addressed as follows:
(a) if to the Company, to:
Crescent Real Estate Equities Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
with a copy so mailed to:
Crescent Real Estate Equities Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
or to such other person at such other place as the
Company shall designate to the UBS Parties in
writing; and
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(b) if to the UBS Parties, c/o UBS Securities, LLC, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such
other address or addresses as may have been furnished
to the Company in writing.
SECTION 11. Changes. This Agreement may not be modified or
amended except pursuant to an instrument in writing signed by the Company and
the UBS Parties.
SECTION 12. Headings. The headings of the various sections
of this Agreement have been inserted for convenience of reference only and
shall not be deemed to be part of this Agreement.
SECTION 13. Severability. In case any provision contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
SECTION 14. Governing Law; Jurisdiction.
14.1 THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE
CONFLICTS OF LAW PRINCIPLES THEREOF) AND OF THE FEDERAL LAW OF THE UNITED
STATES OF AMERICA.
14.2 THE COMPANY (I) HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF, AND AGREES THAT ANY SUIT SHALL BE BROUGHT IN, THE STATE AND
FEDERAL COURTS LOCATED IN THE CITY AND COUNTY OF NEW YORK FOR THE PURPOSE OF
ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND (II) HEREBY WAIVES TO THE
EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH PROCEEDING, ANY CLAIM THAT IT IS
NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURTS, THAT ITS
PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY SUCH
PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURTS IS BROUGHT IN AN
INCONVENIENT FORUM, THAT THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN ONE OF THE
ABOVE-NAMED COURTS IS IMPROPER, OR THAT THIS AGREEMENT, OR THE TRANSACTIONS
CONTEMPLATED HEREBY MAY NOT BE ENFORCED IN OR BY SUCH COURT.
SECTION 15. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall constitute an original, but all
of which, when taken together, shall constitute but one instrument, and shall
become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties.
SECTION 16. Waiver of Trial by Jury. EACH PARTY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO JURY TRIAL IN CONNECTION WITH ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives as of the day
and year first above written.
Crescent Real Estate Equities Company
By: /s/ ▇▇▇▇▇ ▇. PICKER
-------------------------------
Name: ▇▇▇▇▇ ▇. Picker
Title: Vice President, Treasurer
UBS Securities (Portfolio) LLC
By: /s/
-------------------------------
Name:
Title: President
By: /s/
-------------------------------
Name:
Title: Vice President
Union Bank of Switzerland
London Branch
By: /s/ ▇. ▇▇▇▇
-------------------------------
Name: ▇. ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
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Appendix I
(one of two)
STOCK CERTIFICATE QUESTIONNAIRE
(Appendix has been omitted)
C-1
22
Appendix I
(two of two)
REGISTRATION STATEMENT QUESTIONNAIRE AND
PURCHASER'S CERTIFICATE OF SUBSEQUENT SALE
(Appendix has been omitted)
C-1
552512v8
23
EXHIBIT A
Form of Closing Opinion of Counsel to the Company
(Exhibit has been omitted)
24
EXHIBIT B
Opinion Matters for Additional Registration Statements
(Exhibit has been omitted)