EXHIBIT 4.04
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT dated April 15, 2002 (the
"Agreement") is entered into by and among Crescent Real Estate Equities Limited
Partnership, a Delaware limited partnership ("Crescent LP"), Crescent Finance
Company ("Crescent Finance" and, together with Crescent LP, the "Issuers") and
▇.▇. ▇▇▇▇▇▇ Securities Inc., Deutsche Bank Securities Inc., Fleet Securities,
Inc. and ▇▇ ▇▇▇▇▇ Securities Corporation (the "Initial Purchasers").
The Issuers and the Initial Purchasers are parties to a Purchase
Agreement dated April 10, 2002 (the "Purchase Agreement"), which provides for
the sale by the Issuers to the Initial Purchasers of $375,000,000 aggregate
principal amount of the Issuers' 9.25% Senior Notes due 2009 (the "Securities").
As an inducement to the Initial Purchasers to enter into the Purchase Agreement,
the Issuers, jointly and severally, have agreed to provide to the Initial
Purchasers and their direct and indirect transferees the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the following meanings:
"Business Day" shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.
"Closing Date" shall mean the Closing Date as defined in the Purchase
Agreement.
"Crescent LP" shall have the meaning set forth in the preamble and
shall also include Crescent LP's successors.
"Crescent Finance" shall have the meaning set forth in the preamble and
shall also include Crescent Finance's successors.
"Effectiveness Period" shall have the meaning set forth in Section 2(b)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Dates" shall have the meaning set forth in Section 2(a)(ii)
hereof.
"Exchange Offer" shall mean the exchange offer by the Issuers of
Exchange Securities for Registrable Securities pursuant to Section 2(a) hereof.
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"Exchange Offer Registration" shall mean a registration under the
Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
registration statement on Form S-4 (or, if applicable, on another appropriate
form) and all amendments and supplements to such registration statement,
including post-effective amendments thereto, in each case including the
Prospectus contained therein, all exhibits thereto and any document incorporated
by reference therein.
"Exchange Securities" shall mean senior notes issued by the Issuers
under the Indenture containing terms identical to the Securities (except that
(i) interest thereon shall accrue from the last date on which interest was paid
on the Securities or, if no such interest has been paid, from April 15, 2002,
(ii) the Exchange Securities will not be subject to restrictions on transfer and
(iii) the Exchange Securities will not be subject to any increase in annual
interest rate for failure to comply with this Agreement) and to be offered to
Holders of Securities in exchange for Securities pursuant to the Exchange Offer.
"Holders" shall mean the Initial Purchasers, for so long as they own
any Registrable Securities, and each of their successors, assigns and direct and
indirect transferees who become registered owners of Registrable Securities
under the Indenture; provided that for purposes of Sections 4 and 5 of this
Agreement, the term "Holders" shall include Participating Broker-Dealers.
"Indenture" shall mean the Indenture relating to the Securities dated
as of April 15, 2002 among the Issuers and UMB Bank, N.A., as trustee, and as
the same may be amended from time to time in accordance with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Securities; provided that
whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities owned
directly or indirectly by the Issuers or any of their respective "affiliates"
(as such term is defined in Rule 405 under the Securities Act) (other than the
Initial Purchasers or subsequent holders of Registrable Securities if such
subsequent holders are deemed to be such affiliates solely by reason of their
holding of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage or amount.
"Participating Broker-Dealers" shall have the meaning set forth in
Section 4(a) hereof.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
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"Prospectus" shall mean the prospectus included in a Registration
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including a prospectus
supplement with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registrable Securities" shall mean the Securities; provided that the
Securities shall cease to be Registrable Securities (i) when a Registration
Statement with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to be
sold pursuant to Rule 144(k) (or any similar provision then in force, but not
Rule 144A) under the Securities Act or (iii) when such Securities cease to be
outstanding.
"Registration Expenses" shall mean any and all expenses incident to
performance of or compliance by the Issuers with this Agreement, including
without limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees and
expenses incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in preparing, word processing, printing and
distributing any Registration Statement, any Prospectus and any amendments or
supplements thereto, any underwriting agreements, securities sales agreements or
other similar agreements and any other documents relating to the performance of
and compliance with this Agreement, (iv) all rating agency fees, (v) all fees
and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee and
its counsel, (vii) the fees and disbursements of counsel for the Issuers and, in
the case of a Shelf Registration Statement, the reasonable fees and
disbursements of one counsel for the Holders (which counsel shall be selected by
the Majority Holders and which counsel may also be counsel for the Initial
Purchasers) and (viii) the fees and disbursements of the independent public
accountants of the Issuers, including the expenses of any special audits or
"comfort" letters required by or incident to the performance of and compliance
with this Agreement, but excluding fees and expenses of counsel to the
underwriters (other than reasonable fees and expenses set forth in clause (ii)
above) or the Holders and underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of Registrable Securities by
a Holder.
"Registration Statement" shall mean any registration statement of the
Issuers that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and any
document incorporated by reference therein.
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"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time.
"Shelf Registration" shall mean a registration effected pursuant to
Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Issuers pursuant to the provisions of Section 2(b) hereof that
covers all the Registrable Securities (but no other securities unless approved
by the Holders whose Registrable Securities are to be covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under the
Securities Act, or any similar rule that may be adopted by the SEC, and all
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and any document incorporated by reference
therein.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended from time to time.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"Underwritten Offering" shall mean an offering in which Registrable
Securities are sold to one or more underwriters for reoffering to the public.
2. Registration Under the Securities Act. (a) To the extent not
prohibited by any applicable law or applicable interpretations of the Staff of
the SEC, the Issuers shall use their reasonable best efforts to (i) cause to be
filed after the Closing Date an Exchange Offer Registration Statement covering
an offer to the Holders to exchange all the Registrable Securities for Exchange
Securities and (ii) have such Registration Statement remain effective until 180
days after the closing of the Exchange Offer. The Issuers shall commence the
Exchange Offer promptly after the Exchange Offer Registration Statement is
declared effective by the SEC and use their reasonable best efforts to complete
the Exchange Offer not later than 35 days after such effective date.
The Issuers shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents
to each Holder stating, in addition to such other disclosures as are required by
applicable law:
(i) that the Exchange Offer is being made pursuant to this
Agreement and that all Registrable Securities validly tendered and not
properly withdrawn will be accepted for exchange;
(ii) the dates of acceptance for exchange (which shall be a
period of at least 20 Business Days from the date such notice is
mailed) (the "Exchange Dates");
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(iii) that any Registrable Security not tendered will remain
outstanding and continue to accrue interest but will not retain any
rights under this Agreement;
(iv) that any Holder electing to have a Registrable Security
exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the
Borough of Manhattan, The City of New York) and in the manner specified
in the notice, prior to the close of business on the last Exchange
Date; and
(v) that any Holder will be entitled to withdraw its election,
not later than the close of business on the last Exchange Date, by
sending to the institution and at the address (located in the Borough
of Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the
name of such Holder, the principal amount of Registrable Securities
delivered for exchange and a statement that such Holder is withdrawing
its election to have such Securities exchanged.
As a condition to participating in the Exchange Offer, a Holder will be
required to represent to the Issuers that (i) any Exchange Securities to be
received by it will be acquired in the ordinary course of its business, (ii) at
the time of the commencement of the Exchange Offer it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) it is not an "affiliate" (within the
meaning of Rule 405 under Securities Act) of either of the Issuers and (iv) if
such Holder is a broker-dealer that will receive Exchange Securities for its own
account in exchange for Registrable Securities that were acquired as a result of
market-making or other trading activities, then such Holder will deliver a
Prospectus in connection with any resale of such Exchange Securities.
As soon as practicable after the last Exchange Date, the Issuers shall:
(i) accept for exchange Registrable Securities or portions
thereof validly tendered and not properly withdrawn pursuant to the
Exchange Offer; and
(ii) deliver, or cause to be delivered, to the Trustee for
cancellation all Registrable Securities or portions thereof so accepted
for exchange by the Issuers, and issue, and cause the Trustee to
promptly authenticate and deliver to each Holder, Exchange Securities
equal in principal amount to the principal amount of the Registrable
Securities surrendered by such Holder.
The Issuers shall use their reasonable best efforts to complete the
Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the
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Exchange Offer does not violate any applicable law or applicable interpretations
of the Staff of the SEC.
(b) In the event that (i) the Issuers determine that the Exchange Offer
Registration provided for in Section 2(a) above is not available or may not be
completed as soon as practicable after the last Exchange Date because it would
violate any applicable law or applicable interpretations of the Staff of the
SEC, (ii) the Exchange Offer is not for any other reason completed by October
15, 2002 or (iii) the Exchange Offer has been completed and, in the opinion of
counsel to the Initial Purchasers, a Registration Statement must be filed and a
Prospectus must be delivered by the Initial Purchasers in connection with any
offering or sale of Registrable Securities, the Issuers shall use their
reasonable best efforts to cause to be filed as soon as practicable after such
determination, date, or notice of such counsel, as the case may be, a Shelf
Registration Statement providing for the sale of all the Registrable Securities
by the Holders thereof and to have such Shelf Registration Statement declared
effective by the SEC.
In the event that the Issuers are required to file a Shelf Registration
Statement solely as a result of the matters referred to in clause (iii) of the
preceding sentence, the Issuers shall use their reasonable best efforts to file
and have declared effective by the SEC both an Exchange Offer Registration
Statement pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to offers
and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.
The Issuers agree to use their reasonable best efforts to keep the
Shelf Registration Statement continuously effective until the earliest of (i)
the expiration of the period referred to in Rule 144(k) under the Securities Act
with respect to the Registrable Securities, (ii) the date on which all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or (iii) the date on which no
Registrable Securities are outstanding (the "Effectiveness Period"). The Issuers
further agree to supplement or amend the Shelf Registration Statement and the
related Prospectus if required by the rules, regulations or instructions
applicable to the registration form used by the Issuers for such Shelf
Registration Statement or by the Securities Act or by any other rules and
regulations thereunder for shelf registration or if reasonably requested by any
Holder to include information with respect to such Holder to facilitate sales of
such Holder's Registrable Securities, and to use their reasonable best efforts
to cause any such amendment to become effective and such Shelf Registration
Statement and Prospectus to become usable as soon as thereafter practicable. The
Issuers agree to furnish to the Holders of Registrable Securities copies of any
such supplement or amendment promptly after its being used or filed with the
SEC.
(c) The Issuers shall pay all Registration Expenses in connection with
the registration pursuant to Section 2(a) and Section 2(b) hereof. Each Holder
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or
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disposition of such Holder's Registrable Securities pursuant to the Shelf
Registration Statement.
(d) An Exchange Offer Registration Statement pursuant to Section 2(a)
hereof or a Shelf Registration Statement pursuant to Section 2(b) hereof will
not be deemed to have become effective unless it has been declared effective by
the SEC.
In the event that either the Exchange Offer is not completed or the
Shelf Registration Statement, if required hereby, is not declared effective on
or prior to October 15, 2002 (the "Target Registration Date"), the interest rate
on the Registrable Securities will be increased by (i) 0.50% per annum with
respect to the first 90-day period immediately following the Target Registration
Date and (ii), if the Exchange Offer is not completed or the Shelf Registration
Statement, if required hereby, is not declared effective at the end of such
90-day period, by an additional 0.50% per annum, in each case until the Exchange
Offer is completed or the Shelf Registration Statement, if required hereby, is
declared effective by the SEC or the Securities become freely tradable under the
Securities Act, up to a maximum of 1.00% per annum of additional interest (the
"Additional Interest").
If the Shelf Registration Statement has been declared effective and
thereafter either ceases to be effective or the Prospectus contained therein
ceases to be usable at any time during the Effectiveness Period, and such
failure to remain effective or usable exists for more than 30 days (whether or
not consecutive) in any 12-month period, then the interest rate on the
Registrable Securities will be increased by 1.00% per annum commencing on the
31st day in such 12-month period and ending on such date that the Shelf
Registration Statement has again been declared effective or the Prospectus again
becomes usable.
(e) Without limiting the remedies available to the Initial Purchasers
and the Holders, the Issuers acknowledge that any failure by the Issuers to
comply with their obligations under Section 2(a) and Section 2(b) hereof may
result in material irreparable injury to the Initial Purchasers or the Holders
for which there is no adequate remedy at law, that it will not be possible to
measure damages for such injuries precisely and that, in the event of any such
failure, the Initial Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Issuers' obligations under Section 2(a) and
Section 2(b) hereof.
Notwithstanding the foregoing, if the Issuers shall request Holders of
Securities to provide information called for by this Agreement for inclusion in
the Shelf Registration Statement, the Securities owned by Holders who do not
deliver such information to the Issuers will not be entitled to an increase in
the interest rate on such Holder's Securities for so long as such Holder's
failure to provide such information continues.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) and Section 2(b) hereof, the Issuers shall as
expeditiously as possible:
(a) prepare and file with the SEC a Registration Statement on
the appropriate form under the Securities Act, which form (x) shall be
selected by the
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Issuers, (y) shall, in the case of a Shelf Registration, be available
for the sale of the Registrable Securities by the selling Holders
thereof and (z) shall comply as to form in all material respects with
the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith; and use their
reasonable best efforts to cause such Registration Statement to become
effective and remain effective for the applicable period in accordance
with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary to keep such Registration Statement effective for the
applicable period in accordance with Section 2 hereof and cause each
Prospectus to be supplemented by any required prospectus supplement
and, as so supplemented, to be filed pursuant to Rule 424 under the
Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities Act that
is applicable to transactions by brokers or dealers with respect to the
Registrable Securities or Exchange Securities;
(c) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for such Holders and to each underwriter of an
Underwritten Offering of Registrable Securities, if any, without
charge, as many copies of each Prospectus, including each preliminary
Prospectus, and any amendment or supplement thereto, in order to
facilitate the public sale or other disposition of the Registrable
Securities thereunder; and the Issuers consent to the use of such
Prospectus and any amendment or supplement thereto in accordance with
applicable law by each of the selling Holders of Registrable Securities
and any such underwriters in connection with the offering and sale of
the Registrable Securities covered by and in the manner described in
such Prospectus or any amendment or supplement thereto in accordance
with applicable law;
(d) use their reasonable best efforts to register or qualify
the Registrable Securities under all applicable state securities or
blue sky laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement shall reasonably request
in writing by the time the applicable Registration Statement is
declared effective by the SEC; cooperate with the Holders in connection
with any filings required to be made with the National Association of
Securities Dealers, Inc.; and do any and all other acts and things that
may be reasonably necessary or advisable to enable each Holder to
complete the disposition in each such jurisdiction of the Registrable
Securities owned by such Holder; provided that neither of the Issuers
shall be required to (i) qualify as a foreign corporation or other
entity or as a broker or dealer in securities in any such jurisdiction
where it would not otherwise be required to so qualify, (ii) file any
general consent to service of process in any such jurisdiction or (iii)
subject itself to taxation in any such jurisdiction if it is not
already so subject;
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(e) in the case of a Shelf Registration, notify each Holder of
Registrable Securities, counsel for such Holders and counsel for the
Initial Purchasers promptly and, if requested by any such Holder or
counsel, confirm such advice in writing (i) when a Registration
Statement has become effective and when any post-effective amendment
thereto has been filed and becomes effective, (ii) (A) of any request
by the SEC or any state securities authority for amendments or
supplements to a Registration Statement and Prospectus or (B) for
additional information after the Registration Statement has become
effective, (iii) of the issuance by the SEC or any state securities
authority of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if, between the effective date of a Registration
Statement and the closing of any sale of Registrable Securities covered
thereby, (A) the representations and warranties of the Issuers
contained in any underwriting agreement, securities sales agreement or
other similar agreement, if any, relating to an offering of such
Registrable Securities cease to be true and correct in all material
respects or (B) if the Issuers receive any notification with respect to
the suspension of the qualification of the Registrable Securities for
sale in any jurisdiction or the initiation of any proceeding for such
purpose, (v) of the happening of any event during the period a Shelf
Registration Statement is effective that makes any statement made in
such Registration Statement or the related Prospectus untrue in any
material respect or that requires the making of any changes in such
Registration Statement or Prospectus in order to make the statements
therein not misleading and (vi) of any determination by the Issuers
that a post-effective amendment to a Registration Statement would be
appropriate;
(f) use their reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement
at the earliest possible moment and provide immediate notice to each
Holder of the withdrawal of any such order;
(g) in the case of a Shelf Registration, furnish to each
Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective
amendment thereto (without any documents incorporated therein by
reference or exhibits thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends and
enable such Registrable Securities to be issued in such denominations
and registered in such names (consistent with the provisions of the
Indenture) as the selling Holders may reasonably request at least one
Business Day prior to the closing of any sale of Registrable
Securities;
(i) in the case of a Shelf Registration, upon the occurrence
of any event contemplated by Section 3(e)(v) and 3(e)(vi) hereof, use
their reasonable best efforts to prepare and file with the SEC a
supplement or post-effective amendment to a
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Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; and the Issuers shall notify the Holders of
Registrable Securities to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event, and such Holders
hereby agree to suspend use of the Prospectus until the Issuers have
amended or supplemented the Prospectus to correct such misstatement or
omission;
(j) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case
of a Shelf Registration Statement, to the Holders of Registrable
Securities and their counsel) and make such of the representatives of
the Issuers as shall be reasonably requested by the Initial Purchasers
or their counsel (and, in the case of a Shelf Registration Statement,
the Holders of Registrable Securities or their counsel) reasonably
available for discussion of such document; and the Issuers shall not,
at any time after initial filing of a Registration Statement, file any
Prospectus, any amendment of or supplement to a Registration Statement
or a Prospectus of which the Initial Purchasers and their counsel (and,
in the case of a Shelf Registration Statement, the Holders of
Registrable Securities and their counsel) shall not have previously
been advised and furnished a copy and to which the Initial Purchasers
or their counsel (and, in the case of a Shelf Registration Statement,
the Holders or their counsel) shall not have objected to within 10
Business Days of the date of receipt;
(k) obtain a CUSIP number for all Exchange Securities or
Registrable Securities, as the case may be, not later than the
effective date of a Registration Statement;
(l) cause the Indenture to be qualified under the Trust
Indenture Act in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be; cooperate
with the Trustee and the Holders to effect such changes to the
Indenture as may be required for the Indenture to be so qualified in
accordance with the terms of the Trust Indenture Act; and execute, and
use their reasonable best efforts to cause the Trustee to execute, all
documents as may be required to effect such changes and all other forms
and documents required to be filed with the SEC to enable the Indenture
to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, make available for
inspection by a representative of the Holders of the Registrable
Securities (an "Inspector"), any underwriter participating in any
disposition pursuant to such Shelf Registration Statement, and
attorneys and accountants designated by the Holders, at reasonable
times and in a reasonable manner, all pertinent financial and other
records,
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documents and properties of the Issuers, and cause the respective
officers, directors and employees of the Issuers to supply all
information reasonably requested by any such Inspector, underwriter,
attorney or accountant in connection with a Shelf Registration
Statement; provided that if any such information is identified by the
Issuers as being confidential or proprietary, each Person receiving
such information shall take such actions as are reasonably necessary to
protect the confidentiality of such information to the extent such
action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of any Inspector, Holder or
underwriter);
(n) if reasonably requested by any Holder of Registrable
Securities covered by a Registration Statement, promptly include in a
Prospectus supplement or post-effective amendment such information with
respect to such Holder to facilitate sales of Registrable Securities by
such Holder and make all required filings of such Prospectus supplement
or such post-effective amendment as soon as the Issuers have received
notification of the matters to be incorporated in such filing; and
(o) in the case of a Shelf Registration, use its reasonable
best efforts to enter into such customary agreements and take all such
other actions as are reasonably requested in connection therewith
(including those requested by the Majority Holders of the Registrable
Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities including, but not limited
to, an Underwritten Offering and, in such connection, (i) to the extent
possible, make such representations and warranties to the Holders and
any underwriters of such Registrable Securities with respect to the
business of the Issuers and Crescent LP's subsidiaries, the
Registration Statement, Prospectus and documents incorporated by
reference or deemed incorporated by reference, if any, in each case, in
form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings and confirm the same if and when
requested, (ii) obtain opinions of counsel to the Issuers (which
counsel and opinions, in form, scope and substance, shall be reasonably
satisfactory to the Majority Holders and the managing underwriters and
their respective counsel) addressed to each selling Holder and
underwriter of Registrable Securities, covering the matters customarily
covered in opinions requested in underwritten offerings, (iii) obtain
"comfort" letters from the independent certified public accountants of
the Issuers (and, if necessary, any other certified public accountant
of any subsidiary of the Issuers, or of any business acquired by the
Issuers for which financial statements and financial data are or are
required to be included in the Registration Statement) addressed to
each selling Holder and underwriter of Registrable Securities, such
letters to be in customary form and covering matters of the type
customarily covered in "comfort" letters in connection with
underwritten offerings and (iv) deliver such documents and certificates
as may be reasonably requested by the Majority Holders of the
Registrable Securities being sold or the underwriters, and which are
customarily delivered in underwritten offerings, to evidence the
continued validity of the representations and warranties of the Issuers
made pursuant to clause (i) above and
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to evidence compliance with any customary conditions contained in an
underwriting agreement.
In the case of a Shelf Registration Statement, the Issuers may require
each Holder of Registrable Securities to furnish to the Issuers such information
regarding such Holder and the proposed disposition by such Holder of such
Registrable Securities as the Issuers may from time to time reasonably request
in writing. The Issuers may exclude from any Shelf Registration Statement the
Registrable Securities of any Holder who unreasonably fails to furnish such
information within a reasonable time after receiving such request. Each Holder
as to which any Shelf Registration Statement is effected is deemed to agree to
furnish promptly (and in any event within 10 Business Days) to the Issuers all
information required to be disclosed in order to make the information previously
furnished to the Issuers by the Holder not materially misleading.
In the case of a Shelf Registration Statement, each Holder of
Registrable Securities agrees that, upon receipt of any notice from the Issuers
of the happening of any event of the kind described in Section 3(e)(ii)(A),
3(e)(iii), 3(e)(iv)(B) (in respect of the relevant jurisdiction) or 3(e)(v)
hereof, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
3(i) hereof or until it is advised in writing (the "Advice") by the Issuers that
the use of the applicable Prospectus may be resumed, and, if so directed by the
Issuers, such Holder will deliver to the Issuers all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities that is current at the time of
receipt of such notice.
If the Issuers shall give any such notice to suspend the disposition of
Registrable Securities pursuant to a Registration Statement, the Issuers shall
extend the Effectiveness Period 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 Holders shall have received (i) copies of the supplemented or amended
Prospectus necessary to resume such dispositions or (ii) the Advice.
Subject to Section 3(o), the Holders of at least $25 million in
aggregate principal amount of the Securities of Registrable Securities covered
by a Shelf Registration Statement who desire to do so may sell such Registrable
Securities in an Underwritten Offering. In any such Underwritten Offering,
underwriters that will administer the offering will be selected by the Majority
Holders of the Registrable Securities included in such offering and shall be
approved by the Issuers, which approval shall not be unreasonably withheld. No
Holder of Registrable Securities may participate in any Underwritten Offering
hereunder unless such Holder (i) agrees to sell such Holder's Registrable Shares
on the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (ii) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required in connection with such Underwritten offering.
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4. Participation of Broker-Dealers in Exchange Offer. (a) The Staff of
the SEC has taken the position that any broker-dealer that receives Exchange
Securities for its own account in the Exchange Offer in exchange for Securities
that were acquired by such broker-dealer as a result of market-making or other
trading activities (a "Participating Broker-Dealer") may be deemed to be an
"underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
The Issuers understand that it is the Staff's position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means by
which Participating Broker-Dealers may resell the Exchange Securities, without
naming the Participating Broker-Dealers or specifying the amount of Exchange
Securities owned by them, such Prospectus may be delivered by Participating
Broker-Dealers to satisfy their prospectus delivery obligation under the
Securities Act in connection with resales of Exchange Securities for their own
accounts, so long as the Prospectus otherwise meets the requirements of the
Securities Act.
(b) In light of the above, and notwithstanding the other provisions of
this Agreement, the Issuers agree to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement, as would otherwise be
contemplated by Section 3(i), for a period of up to 180 days after the last
Exchange Date (as such period may be extended pursuant to the penultimate
paragraph of Section 3 of this Agreement), if requested by the Initial
Purchasers or by one or more Participating Broker-Dealers, in order to expedite
or facilitate the disposition of any Exchange Securities by Participating
Broker-Dealers consistent with the positions of the Staff recited in Section
4(a) above. The Issuers further agree that Participating Broker-Dealers shall be
authorized to deliver such Prospectus during such period in connection with the
resales contemplated by this Section 4.
(c) The Initial Purchasers shall have no liability to the Issuers or
any Holder with respect to any request that they may make pursuant to Section
4(b) above.
5. Indemnification and Contribution. (a) The Issuers, jointly and
severally, agree to indemnify and hold harmless each Initial Purchaser and each
Holder, the officers and directors of each Initial Purchaser and each Holder,
and each Person, if any, who controls any Initial Purchaser or any Holder within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities
(including, without limitation, reasonable legal fees and other expenses
incurred in connection with any suit, action or proceeding or any claim
asserted), joint or several, caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or any
Prospectus, or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any
information relating to any Initial Purchaser or
-14-
any Holder furnished to the Issuers in writing by such Initial Purchaser or
Holder expressly for use therein.
(b) Each Holder agrees, severally and not jointly, to indemnify and
hold harmless the Issuers, the Initial Purchasers and the other selling Holders,
their respective affiliates, the officers and directors of the Issuers and the
Initial Purchasers, and each Person, if any, who controls the Issuers, any
Initial Purchaser and any other selling Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act to the same extent as
the indemnity set forth in paragraph (a) above, but only with respect to any
losses, claims, damages or liabilities caused by any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to such Holder furnished to the Issuers
in writing by such Holder expressly for use in any Registration Statement and
any Prospectus.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the "Indemnified Person") shall
promptly notify the Person against whom such indemnification may be sought (the
"Indemnifying Person") in writing; provided that the failure to notify the
Indemnifying Person shall not relieve it from any liability that it may have
under this Section 5 except to the extent that it has been materially prejudiced
(through the forfeiture of substantive rights or defenses) by such failure; and
provided, further, that the failure to notify the Indemnifying Person shall not
relieve it from any liability that it may have to an Indemnified Person
otherwise than under this Section 5. If any such proceeding shall be brought or
asserted against an Indemnified Person and it shall have notified the
Indemnifying Person thereof, (i) in the case the Indemnified Person is any
Initial Purchaser, its officers or directors and any control Persons, counsel to
the Indemnified Person shall be selected by ▇.▇. ▇▇▇▇▇▇ Securities Inc. and be
reasonably satisfactory to all others entitled to indemnification, (ii) in the
case the Indemnified Person is any Holder, its officers and directors and any
control Persons of such Holder, counsel to the Indemnified Person shall be
selected by the Majority Holders, and (iii) in the case the Indemnified Persons
are the Issuers, their respective officers and directors and any control
Persons, counsel to the Indemnified Persons shall be selected by the Issuers,
and in each such case the fees and expenses of counsel for such Indemnified
Person shall be paid for by the Indemnifying Person. In any such proceeding, any
Indemnifying Person shall have the right to participate in the defense by
retaining its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnifying Person; provided, however, that counsel to the
Indemnifying Person shall not (except with the consent of the Indemnified
Person) also be counsel to the Indemnified Person. It is understood and agreed
that the Indemnifying Person shall not, in connection with any proceeding or
related proceeding in the same jurisdiction, be liable for the fees and expenses
of more than one firm separate from its own counsel (in addition to any local
counsel) for all Indemnified Persons, and that the Indemnifying Person shall pay
all such fees and expenses. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
Indemnifying Person agrees to indemnify each Indemnified Person from and against
any loss or liability by
-15-
reason of such settlement or judgment. No Indemnifying Person shall, without the
written consent of the Indemnified Person, effect any settlement of any pending
or threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional release
of such Indemnified Person in form and substance reasonably satisfactory to such
Indemnified Person from all liability on claims that are the subject matter of
such proceeding and (B) does not include any statement as to or any admission of
fault, culpability or a failure to act by or on behalf of any Indemnified
Person.
(d) If the indemnification provided for in paragraphs (a) and (b) above
is unavailable to an Indemnified Person or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such paragraph, in lieu of indemnifying such
Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Issuers from the offering of the Securities and the
Exchange Securities, on the one hand, and by the Holders from receiving
Securities or Exchange Securities registered under the Securities Act, on the
other hand, or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of the
Issuers on the one hand and the Holders on the other in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the Issuers on the one hand and the Holders on the other 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 relates to information supplied by the Issuers or by the Holders
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Issuers and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in paragraph (d) above. The amount paid or payable by
an Indemnified Person as a result of the losses, claims, damages and liabilities
referred to in paragraph (d) above shall be deemed to include, subject to the
limitations set forth above, any reasonable legal or other expenses incurred by
such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 5, in no event shall a Holder be
required to contribute any amount in excess of the amount by which the total
price at which the Securities or Exchange Securities sold by such Holder exceeds
the amount of any damages that such Holder 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. The Holders'
respective obligations to contribute pursuant to Section 5(d) and this Section
5(e)
-16-
are several in proportion to the respective number of Registrable Securities of
such Holder that were registered pursuant to a Registration Statement.
(f) The remedies provided for in this Section 5 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.
(g) The indemnity and contribution provisions contained in this Section
5 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchasers or any Holder, their respective affiliates or any Person
controlling any Initial Purchaser or any Holder, or by or on behalf of the
Issuers, their respective affiliates or the officers or directors of or any
Person controlling either of the Issuers, (iii) acceptance of any of the
Exchange Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
6. General.
(a) No Inconsistent Agreements. The Issuers represent, warrant and
agree that (i) the rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
any other outstanding securities issued or guaranteed by the Issuers under any
other agreement and (ii) neither of the Issuers has entered into, or on or after
the date of this Agreement will enter into, any agreement that is inconsistent
with the rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Issuers have obtained the written consent of at least the
Majority Holders of the outstanding Registrable Securities affected by such
amendment, modification, supplement, waiver or consent; provided that no
amendment, modification, supplement, waiver or consent to any departure from the
provisions of Section 5 hereof shall be effective as against any Holder of
Registrable Securities unless consented to in writing by such Holder. Any
amendments, modifications, supplements, waivers or consents pursuant to this
Section 6(b) shall be by a writing executed by each of the parties hereto.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
the Issuers by means of a notice given in accordance with the provisions of this
Section 6(c), which address initially is, with respect to the Initial
Purchasers, the address set forth in the Purchase Agreement; (ii) if to the
Issuers, initially at the Issuers' address set forth in the Purchase Agreement
and thereafter at such other address, notice of which is given in accordance
with the provisions of this Section 6(c); and (iii) to such other persons at
their respective addresses as provided in the Purchase
-17-
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c). All such notices and
communications shall be deemed to have been duly given: at the time delivered by
hand, if personally delivered; five Business Days after being deposited in the
mail, postage prepaid, if mailed; when answered back, if telexed; when receipt
is acknowledged, if telecopied; and on the next Business Day if timely delivered
to an air courier guaranteeing overnight delivery. Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the Indenture.
(d) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof. The Initial
Purchasers (in their capacity as Initial Purchasers) shall have no liability or
obligation to the Issuers with respect to any failure by a Holder to comply
with, or any breach by any Holder of, any of the obligations of such Holder
under this Agreement.
(e) Purchases and Sales of Securities. The Issuers shall not, and shall
use their reasonable best efforts to cause their affiliates (as defined in Rule
405 under the Securities Act) not to, purchase and then resell or otherwise
transfer any Registrable Securities.
(f) Third Party Beneficiaries. Each Holder shall be a third party
beneficiary to the agreements made hereunder between the Issuers, on the one
hand, and the Initial Purchasers, on the other hand, and shall have the right to
enforce such agreements directly to the extent it deems such enforcement
necessary or advisable to protect its rights or the rights of other Holders
hereunder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.
(i) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
-18-
(j) Miscellaneous. This Agreement contains the entire agreement between
the parties relating to the subject matter hereof and supersedes all oral
statements and prior writings with respect thereto. If any term, provision,
covenant or restriction contained in this Agreement is held by a court of
competent jurisdiction to be invalid, void or unenforceable or against public
policy, the remainder of the terms, provisions, covenants and restrictions
contained herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated. The Issuers and the Initial Purchasers shall
endeavor in good faith negotiations to replace the invalid, void or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, void or unenforceable
provisions.
-19-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: Crescent Real Estate Equities Ltd.,
its sole general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President, Law and
Administration and Secretary
CRESCENT FINANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Executive Vice President, Law and
Administration and Secretary
[Second Signature Page Follows]
-20-
Confirmed and accepted as of the
date first above written:
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
DEUTSCHE BANK SECURITIES INC.
FLEET SECURITIES, INC.
▇▇ ▇▇▇▇▇ SECURITIES CORPORATION
By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Authorized Signatory
By: DEUTSCHE BANK SECURITIES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------
Authorized Signatory
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Authorized Signatory
For each of themselves and on behalf of the
several Initial Purchasers