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EXHIBIT 10.06
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement") is entered into as of the 15th
day of April, 1994, by and between Rainwater, Inc., a Texas corporation
("Employer"), and Xxxxxx X. Xxxxxxx ("Employee").
W I T N E S S E T H:
WHEREAS, Employer desires to employ Employee as provided herein, and
Employee desires to accept such employment; and
WHEREAS, Employee will, as an employee of Employer, have access to
confidential information with respect to Employer and its affiliates;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. Employer hereby employs Employee and Employee hereby accepts
employment with Employer upon the terms and conditions hereinafter set forth.
2. DUTIES. Subject to the power of the Board of Directors of Employer (the
"Board") to elect and remove officers, Employee will serve Employer as President
and Chief Operating Officer (or in such other executive office as Employer or
the Board may determine) and will perform, faithfully and diligently, the
services and functions relating to such office or otherwise reasonably incident
to such office as may be designated from time to time by the Board. Employee
will devote his full time, attention, skills, benefits and best efforts to the
performance of his duties hereunder and to the promotion of the business and
interests of Employer and its affiliates and will not, without the prior written
consent of the Board, become engaged in any other activity requiring significant
time or personal services by Employee that will conflict with the proper
performance of any such duties under this Agreement. Employer hereby
acknowledges that Employee has a broad and varied range of investment interests
and that Employee must devote such reasonable time and attention to the proper
and judicious management of such interests as may be reasonably required from
time to time. Accordingly, nothing contained in this Agreement shall limit or be
deemed to limit Employee's personal investment activities, and Employee's
engaging in such activities shall not be or be deemed to be a breach or
violation of this Agreement.
3. TERM. Unless sooner terminated pursuant to the provisions hereof, the
term of this Agreement (together with any renewals pursuant to this Section, the
"Term") shall be for a term of three years, commencing on the date of this
Agreement and terminating April 14, 1997; provided that this Agreement will be
automatically renewed for a term of one year unless
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either party notifies the other prior to January 1 of a given year that they do
not wish to renew this Agreement.
4. COMPENSATION. As compensation for his services rendered under this
Agreement, Employee will be entitled to receive the following:
(a) Salary. During the Term, Employee will be paid an annual salary of
$160,000.00, payable monthly (the "Salary"). At any time and from time to
time the Salary may be increased if so determined by the Board or its
Compensation Committee after a review of Employee's performance of his
duties hereunder.
(b) Bonus. In addition to the Salary, Employee will be entitled to
receive such bonuses as may be determined by the Board or its Compensation
Committee.
(c) Benefits. During the Term, Employee will be entitled to receive
such group benefits as Employer may provide to its other employees at
comparable salaries and responsibilities to those of Employee.
(d) Expenses. Employer will reimburse Employee for all reasonable and
necessary out-of-pocket travel and other expenses incurred by Employee in
rendering services required under this Agreement, on a monthly basis upon
submission of a detailed monthly statement and reasonable documentation.
5. CONFIDENTIALITY; NON-COMPETITION.
(a) Acknowledgment of Proprietary Interest. Employee recognizes the
proprietary interest of Employer and its affiliates in any Confidential
Information (as hereinafter defined) of Employer and its affiliates.
Employee acknowledges and agrees that any and all Confidential Information
learned by Employee during the course of his engagement by Employer or
otherwise, whether developed by Employee alone or in conjunction with
others or otherwise, will be and is the property of Employer and its
affiliates. Employee further acknowledges and understands that his
disclosure of any Confidential Information and/or proprietary information
will result in irreparable injury and damage to Employer and its
affiliates. As used herein, "Confidential Information" means all
confidential and proprietary information of Employer and its affiliates,
including without limitation information derived from reports,
investigations, experiments, research, drawing, designs, plans, proposals,
codes, marketing and sales programs, client lists, client mailing lists,
financial projections, cost summaries, pricing formula, and all other
concepts, ideas, materials, or information prepared or performed for or by
Employer or its affiliates. "Confidential Information" also includes
information related to the business, products or sales of Employer or its
affiliates, or any of their respective customers, other than information
that is otherwise publicly available.
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(b) Covenant Not-to-Divulge Confidential Information. Employee
acknowledges and agrees that Employer and its affiliates are entitled to
prevent the disclosure of Confidential Information. As a portion of the
consideration for the employment of Employee and for the compensation being
paid to Employee by Employer, Employee agrees at all times during the Term
and thereafter to hold in strict confidence and not to disclose or allow to
be disclosed to any person, firm or corporation, other than to persons
engaged by Employer and its affiliates to further the business of Employer
and its affiliates, and not to use except in the pursuit of the business of
Employer and its affiliates, the Confidential Information, without the
prior written consent of Employer, including Confidential Information
developed by Employee.
(c) Return of Materials at Termination. In the event of any
termination or cessation of his employment with Employer for any reason
whatsoever, Employee will promptly deliver to Employer all documents, data
and other information pertaining to Confidential Information. Employee will
not take any documents or other information, or any reproduction or excerpt
thereof, containing or pertaining to any Confidential Information.
(d) Competition. Employee will enter into a Non-Competition Agreement
with Employer in substantially the form of Exhibit A hereto.
6. TERMINATION. This Agreement and the employment relationship created
hereby will terminate upon the occurrence of any of the following events:
(a) The expiration of the Term as set forth in Section 3 above;
(b) The death of Employee;
(c) The "disability" (as hereinafter defined) of Employee;
(d) Written notice to Employee from Employer of termination for "just
cause" (as hereinafter defined); or
(e) Written notice to Employee from Employer of termination for any
reason other than as set forth in Sections 6(a), 6(b), 6(c) or 6(d).
For purposes of Section 6(c), the "disability" of Employee will mean his
inability, because of mental or physical illness or incapacity, to perform his
duties under this Agreement for a continuous period of 180 days or for 180 days
out of a 210-day period. For purposes of Section 6(d), "just cause" shall mean
Employee shall commit any act or omit to take any action in bad faith and to the
detriment of Employer.
Notwithstanding anything to the contrary in this Agreement, the provisions
of Section 5 will survive any termination, for whatever reason, of Employee's
employment under this Agreement. In the event of the termination of Employee's
employment prior to the completion
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of the Term, Employee or his estate, as the case may be, will be entitled only
to the Salary payable pursuant to Section 4 hereof through the end of the
calendar month in which termination occurs, except that (a) if Employee's
employment is terminated pursuant to Section 6(d), Employee will be entitled to
receive a lump-sum payment equal to six month's Salary at the rate in effect
immediately prior to the termination on the date of termination, and (b) if
Employee's employment is terminated pursuant to Section 6(e), Employee will be
entitled to receive the greater of (i) a payment equal to the full Salary
payable pursuant to Section 4(a) as if no termination had occurred or (ii) a
payment equal to one year's Salary at the rate in effect immediately prior to
the termination (except that, in case of both (i) and (ii), such sum shall be
payable in one lump-sum payment on the date of termination).
7. REMEDIES. Employee recognizes and acknowledges that in the event of any
default in, or breach of any of, the terms, conditions or provisions of this
Agreement (either actual or threatened) by Employee, Employer's and its
affiliates remedies at law will be inadequate. Accordingly, Employee agrees that
in such event, Employer and its affiliates will have the right of specific
performance and/or injunctive relief in addition to any and all other remedies
and rights at law or in equity, and such rights and remedies will be cumulative.
8. ACKNOWLEDGMENTS. Employee acknowledges and recognizes that the
enforcement of any of the provisions set forth in Section 5 by Employer and its
affiliates will not interfere with Employee's ability to pursue a proper
livelihood. Employee recognizes and agrees that the enforcement of this
Agreement is necessary to ensure the preservation and continuity of the business
and good will of Employer and its affiliates.
9. NOTICES. Any notices, consents, demands, requests, approvals and other
communications to be given under this Agreement by either party to the other
will be deemed to have been duly given if given in writing and personally
delivered or sent by mail, registered or certified, postage prepaid with return
receipt requested, as follows: if to Employer, to 000 Xxxx Xxxxxx, Xxxxx 0000,
Xxxx Xxxxx, Xxxxx 00000, Attention: President; or if to Employee, to Xxxxxx X.
Xxxxxxx, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000.
Notices delivered personally will be deemed communicated as of actual receipt;
mailed notices will be deemed communicated as of three days after mailing.
10. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties hereto and supersedes all prior agreements and understandings, oral or
written between the parties hereto. No modification or amendment of any of the
terms, conditions or provisions herein may be made otherwise than by written
agreement signed by the parties hereto.
11. GOVERNING LAW; VENUE. This Agreement and the rights and obligations of
the parties hereto will be governed, construed and enforced in accordance with
the laws of the State of Texas, without regard to the principles of conflicts of
laws thereof. The parties agree that this Agreement shall be performable in
Tarrant County, Texas.
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12. PARTIES BOUND; ASSIGNMENT. This Agreement and the rights and
obligations hereunder will be binding upon and inure to the benefit of Employer
and Employee, and their respective heirs, personal representatives, successors
and assigns. Employer will have the right to assign this Agreement to Crescent
Real Estate Equities, Inc., a Maryland corporation, or any of its subsidiaries
of affiliated entities, including, without limitation, Crescent Real Estate
Equities Limited Partnership, a Delaware limited partnership, or to any
affiliate of Employer, or to Employer's successors or assigns. The terms
"successors" and "assigns" will include any person, corporation, partnership or
other entity that buys all or substantially all of Employer's assets or all of
its stock, or with which Employer merges or consolidates. The rights, duties or
benefits to Employee hereunder are personal to him, and no such right or benefit
may be assigned by him. The parties hereto acknowledge and agree that Employer's
affiliates are third-party beneficiaries of the covenants and agreements of
Employee set forth in Section 6 above.
13. CHOICE OF FORUM. The parties hereto agree that should any suit, action
or proceeding arising out of this Agreement be instituted by any party hereto
(other than a suit, action or proceeding to enforce or realize upon any final
court judgment arising out of this Agreement), such suit, action or proceeding
shall be instituted only in a state or federal court in Tarrant County, Texas.
Each of the parties hereto consents to the in persona jurisdiction of any state
or federal court in Tarrant County, Texas and waives any objection to the venue
of any such suit, action or proceeding. The parties hereto recognize that courts
outside Tarrant County, Texas may also have jurisdiction over suits, actions or
proceedings arising out of this Agreement, and in the event that any party
hereto shall institute a proceeding involving this Agreement in a jurisdiction
outside Tarrant County, Texas, the party instituting such proceeding shall
indemnify any other party hereto for any losses and expenses that may result
from the breach of the foregoing covenant to institute such proceeding only in a
state or federal court in Tarrant County, Texas, including without limitation
any additional expenses incurred as a result of litigating in another
jurisdiction, such as reasonable fees and expenses of local counsel and travel
and lodging expenses for parties, witnesses, experts and support personnel.
14. SERVICE OF PROCESS. Service of any and all process that may be served
on any party hereto in any suit, action or proceeding arising out of this
Agreement may be made in the manner and to the address set forth in Section 11
and service thus made shall be taken and held to be valid personal service upon
such party by any party hereto on whose behalf such service is made.
15. ENFORCEABILITY. If, for any reason, any provision contained in this
agreement should be held invalid in part by a court of competent jurisdiction,
then it is the intent of each of the parties hereto that the balance of this
Agreement be enforced to the fullest extent permitted by applicable law.
Accordingly, should a court of competent jurisdiction determine that the scope
of any covenant is too broad to be enforced as written, it is the intent of each
of the parties that the court should reform such covenant to such narrower scope
as it determines enforceable.
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16. WAIVER OF BREACH. The waiver by any party hereto of a breach of any
provision of this Agreement will not operate or be construed as a waiver of any
subsequent breach by any party.
17. CAPTIONS. The captions in this Agreement are for convenience of
reference only and will not limit or otherwise affect any of the terms or
provisions hereof.
18. COSTS. If any action at law or in equity is necessary to enforce or
interpret the terms of this Agreement, the prevailing party will be entitled to
reasonable attorneys' fees, costs and necessary disbursements in addition to any
other relief to which he or it may be entitled.
19. OTHER OBLIGATIONS. Employee represents and warrants that he has not as
of the execution of this Agreement assumed any obligations inconsistent with
those contained herein.
20. AFFILIATE. An "affiliate" of any party hereto will mean any person
controlling, controlled by or under common control with such party.
21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which will
constitute one and the same instrument, but only one of which need be produced.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
of the day and year first above written.
RAINWATER, INC.
By: /s/ XXXXXXX X. XXXXXXXXX
--------------------------------
Xxxxxxx X. Xxxxxxxxx
President
/s/ XXXXXX X. XXXXXXX
-----------------------------------
Xxxxxx X. Xxxxxxx
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FIRST AMENDMENT TO THE
EMPLOYMENT AGREEMENT OF
XXXXXX X. XXXXXXX
This FIRST AMENDMENT TO THE EMPLOYMENT AGREEMENT OF XXXXXX X. XXXXXXX (the
"First Amendment"), dated July 1, 1995, is entered into by and between the
undersigned parties. Except as the context may otherwise require, any terms used
in this First Amendment which are defined in the Agreement (as hereinafter
defined) shall have the same meaning for purposes of this First Amendment as in
the Agreement.
W I T N E S S E T H:
WHEREAS, Rainwater, Inc., a Texas corporation, entered into that certain
Employment Agreement with Xxxxxx X. Xxxxxxx ("Xxxxxxx") dated April 15, 1994
(the "Agreement"); and
WHEREAS, Rainwater, Inc. subsequently assigned the Agreement to Crescent
Real Estate Equities Limited Partnership, a Delaware limited partnership (the
"Operating Partnership"), pursuant to that certain Management Functions
Conveyance Agreement between Rainwater, Inc. and the Operating Partnership dated
May 4, 1994; and
WHEREAS, Crescent Real Estate Equities, Ltd. ("Crescent, Ltd.") is the
general partner of the Operating Partnership; and
WHEREAS, Crescent, Ltd. is the wholly owned subsidiary of Crescent Real
Estate Equities, Inc., a Maryland corporation ("CREI"), and CREI owns a majority
of the limited partnership interests in the Operating Partnership; and
WHEREAS, the Executive Compensation Committee of the Board of Directors of
CREI determined on June 12, 1995 that the Agreement should be amended to provide
for an annual salary of $240,000 be paid to Xxxxxxx, commencing July 1, 1995, in
reward for services rendered to Crescent, Ltd. and the Operating Partnership and
for Xxxxxxx'x contributions to the success and prosperity of Crescent, Ltd. and
the Operating Partnership; and
WHEREAS, the undersigned parties, consisting of all of the parties to the
Agreement, desire to amend the Agreement to reflect the increase in Xxxxxxx'x
annual salary;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and
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sufficiency of which are hereby acknowledged, the parties hereto, intending
legally to be bound, hereby agree as follows:
1. Paragraph 4 (a) of the Agreement be amended to provide for an annual
salary in the amount of $240,000 be paid to Xxxxxxx, commencing July 1, 1995, as
provided pursuant to the terms of the Agreement.
2. Except as herein amended, the Agreement is hereby ratified, confirmed
and affirmed for all purposes and in all respects.
3. This First Amendment may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this First Amendment
immediately upon affixing its signature thereto.
IN WITNESS WHEREOF, the undersigned parties have executed this First
Amendment as of the date first written above.
XXXXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXXX
----------------------------------------------
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Crescent Real Estate Equities, Ltd.,
a Delaware corporation, its sole
general partner
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Senior Vice President, Law
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SECOND AMENDMENT TO THE
EMPLOYMENT AGREEMENT OF
XXXXXX X. XXXXXXX
This SECOND AMENDMENT TO THE EMPLOYMENT AGREEMENT OF XXXXXX X. XXXXXXX (the
"Second Amendment"), dated March 15, 1996, is entered into by and between the
undersigned parties. Except as the context may otherwise require, any terms used
in this Second Amendment which are defined in the Effective Agreement (as
hereinafter defined) shall have the same meaning for purposes of this Second
Amendment as in the Effective Agreement.
W I T N E S S E T H:
WHEREAS, Rainwater, Inc., a Texas corporation, entered into that certain
Employment Agreement with Xxxxxx X. Xxxxxxx ("Xxxxxxx") dated April 15, 1994
(the "Original Agreement"); and
WHEREAS, Rainwater, Inc. subsequently assigned the Original Agreement to
Crescent Real Estate Equities Limited Partnership, a Delaware limited
partnership (the "Operating Partnership"), pursuant to that certain Management
Functions Conveyance Agreement between Rainwater, Inc. and the Operating
Partnership dated May 4, 1994; and
WHEREAS, the Original Agreement was amended by the First Amendment to the
Employment Agreement of Xxxxxx X. Xxxxxxx dated July 1, 1995 (the "Effective
Agreement"); and
WHEREAS, Crescent Real Estate Equities, Ltd. ("Crescent, Ltd.") is the
general partner of the Operating Partnership; and
WHEREAS, Crescent, Ltd. is the wholly owned subsidiary of Crescent Real
Estate Equities, Inc., a Maryland corporation ("CREI"), and CREI owns a majority
of the limited partnership interests in the Operating Partnership; and
WHEREAS, the Executive Compensation Committee of the Board of Directors of
CREI determined on March 14, 1996 that the Effective Agreement should be amended
to provide for an annual salary of $300,000 be paid to Xxxxxxx, commencing March
15, 1996, in reward for services rendered to Crescent, Ltd. and the Operating
Partnership and for Xxxxxxx'x contributions to the success and prosperity of
Crescent, Ltd. and the Operating Partnership; and
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WHEREAS, the undersigned parties, consisting of all of the parties to the
Effective Agreement, desire to amend the Effective Agreement to reflect the
increase in Xxxxxxx'x annual salary;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
1. The Effective Agreement be amended to provide for an annual salary in
the amount of $300,000 be paid to Xxxxxxx, commencing March 15, 1996, as
provided pursuant to the terms of the Effective Agreement.
2. Except as herein amended, the Effective Agreement is hereby ratified,
confirmed and affirmed for all purposes and in all respects.
3. This Second Amendment may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Second Amendment
immediately upon affixing its signature thereto.
IN WITNESS WHEREOF, the undersigned parties have executed this Second
Amendment as of the date first written above.
XXXXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXXX
----------------------------------------------
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware limited
partnership
By: Crescent Real Estate Equities, Ltd.,
a Delaware corporation, its sole
general partner
By: /s/ XXXXX X. XXXX
-------------------------------------
Xxxxx X. Xxxx
Senior Vice President, Law
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THIRD AMENDMENT TO THE
EMPLOYMENT AGREEMENT OF
XXXXXX X. XXXXXXX
This THIRD AMENDMENT TO THE EMPLOYMENT AGREEMENT OF XXXXXX X. XXXXXXX (the
"Third Amendment"), dated March 3, 1997, is entered into by and between the
undersigned parties. Except as the context may otherwise require, any terms used
in this Third Amendment which are defined in the Effective Agreement (as
hereinafter defined) shall have the same meaning for purposes of this Third
Amendment as in the Effective Agreement.
W I T N E S S E T H:
WHEREAS, Rainwater, Inc., a Texas corporation, entered into that certain
Employment Agreement with Xxxxxx X. Xxxxxxx ("Xxxxxxx") dated April 15, 1994
(the "Original Agreement"); and
WHEREAS, Rainwater, Inc. subsequently assigned the Original Agreement to
Crescent Real Estate Equities Limited Partnership, a Delaware limited
partnership (the "Operating Partnership"), pursuant to that certain Management
Functions Conveyance Agreement between Rainwater, Inc. and the Operating
Partnership dated May 4, 1994; and
WHEREAS, the Original Agreement was amended by the First Amendment to the
Employment Agreement of Xxxxxx X. Xxxxxxx dated July 1, 1995 (the "First
Amendment"); and
WHEREAS, the First Amendment was amended by the Second Amendment to the
Employment Agreement of Xxxxxx X. Xxxxxxx dated March 15, 1996 (the "Effective
Agreement"); and
WHEREAS, Crescent Real Estate Equities, Ltd. ("Crescent, Ltd.") is the
general partner of the Operating Partnership; and
WHEREAS, Crescent, Ltd. is the wholly owned subsidiary of Crescent Real
Estate Equities Company, a Texas real estate investment trust ("CREE"), and CREE
owns a majority of the limited partnership interests in the Operating
Partnership; and
WHEREAS, the Executive Compensation Committee of the Board of Trust
Managers of CREE determined on March 2, 1997 that the Effective Agreement
should be amended to provide for an annual salary of $400,000 be paid to
Xxxxxxx, commencing March 3, 1997, in reward for services rendered to Crescent,
Ltd. and the Operating Partnership and for Xxxxxxx'x contributions to the
success and prosperity of Crescent, Ltd. and the Operating Partnership; and
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WHEREAS, the undersigned parties, consisting of all of the parties to the
Effective Agreement, desire to amend the Effective Agreement to reflect the
increase in Xxxxxxx'x annual salary;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency which are hereby acknowledged, the parties hereto,
intending legally to be bound, hereby agree as follows:
1. The Effective Agreement be amended to provide for an annual salary in
the amount of $400,000 be paid to Xxxxxxx, commencing March 3, 1997, as provided
pursuant to the terms of the Effective Agreement.
2. Except as herein amended, the Effective Agreement is hereby ratified,
confirmed and affirmed for all purposes and in all respects.
3. This Third Amendment may be executed in counterparts, all of which
together shall constitute one agreement binding on all the parties hereto,
notwithstanding that all such parties are not signatories to the original or the
same counterpart. Each party shall become bound by this Third Amendment
immediately upon affixing its signature thereto.
IN WITNESS WHEREOF, the undersigned parties have executed this Third
Amendment as of the date first written above.
XXXXXX X. XXXXXXX
/s/ XXXXXX X. XXXXXXX
----------------------------------------------
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP, a Delaware
limited partnership
By: Crescent Real Estate Equities, Ltd.,
a Delaware corporation, its sole
general partner
By: /s/ XXXXX X. XXXX
--------------------------------------
Xxxxx X. Xxxx
Senior Vice President, Law
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