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EXHIBIT 10.07
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT ("Agreement") is made and entered into as
of the _____ day of ____________, 1997, by and among Crescent Real Estate
Equities Company, a Texas real estate investment trust ("Crescent" together
with its wholly owned subsidiary Crescent Real Estate Equities, Ltd., a
Delaware corporation, being referred to herein collectively as the "Company"),
Crescent Real Estate Equities Limited Partnership, a Delaware limited
partnership (the "Partnership"), and ___________________, a trust manager, an
officer, or a trust manager and officer of the Company (the "Indemnitee").
W I T N E S S E T H:
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WHEREAS, the interpretation of ambiguous statutes, regulations and
bylaws regarding indemnification of trust managers and officers may be too
uncertain to provide such trust managers and officers with adequate notice of
the legal, financial and other risks to which they may be exposed by virtue of
their service as such; and
WHEREAS, damages sought against trust managers and officers in
shareholder or similar litigation by class action plaintiffs may be
substantial, and the costs of defending such actions and of judgments in favor
of plaintiffs or of settlement therewith may be prohibitive for individual
trust managers and officers, without regard to the merits of a particular
action and without regard to the culpability of, or the receipt of improper
personal benefit by, any named trust manager or officer to the detriment of the
corporation; and
WHEREAS, the issues in controversy in such litigation usually relate to
the knowledge, motives and intent of the trust manager or officer, who may be
the only person with firsthand knowledge of essential facts or exculpating
circumstances who is qualified to testify in his defense regarding matters of
such a subjective nature, and, the long period of time which may elapse before
final disposition of such litigation, may impose undue hardship and burden on a
trust manager or officer or his estate in launching and maintaining a proper
and adequate defense of himself or his estate against claims for damages; and
WHEREAS, Crescent is organized under the Texas Real Estate Investment
Trust Act (the "Act"), and Section 9.20 of the Act empowers real estate
investment trusts to indemnify and advance expenses to a person serving as a
trust manager, officer, employee or agent of a real estate investment trust and
to persons serving at the request of the real estate investment trust, while a
trust manager of a corporation, as a trust manager, director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary of
another real estate investment trust, foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan,
or other enterprise; and
WHEREAS, the Declaration of Trust of Crescent, as it may be amended or
amended and restated from time to time (the "Declaration of Trust"), provides
that Crescent shall indemnify current and former trust managers and officers,
and shall have the power to indemnify agents to
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the full extent permitted by the Act, as it may be amended from time to time;
and
WHEREAS, the Trust Managers of Crescent (the "Board") have concluded
that it is reasonable and prudent for Crescent contractually to obligate itself
to indemnify in a reasonable and adequate manner the Indemnitee and to assume
for itself maximum liability for expenses and damages in connection with claims
lodged against the Indemnitee for the Indemnitee's decisions and actions as a
trust manager or officer, or both, of the Company; and
WHEREAS, the Partnership is organized under the Delaware Revised Uniform
Limited Partnership Act (the "DRULPA"), and Section 17-108 of the DRULPA
empowers limited partnerships to indemnify and hold harmless any partner or
other person from and against any and all claims and demands whatsoever,
subject to the standards and restrictions, if any, as are set forth in their
limited partnership agreements; and
WHEREAS, the First Amended and Restated Agreement of Limited Partnership
of the Partnership, as it may be amended or amended and restated from time to
time (the "Partnership Agreement"), provides for certain indemnification
consistent with the DRULPA, as it may be amended from time to time; and
WHEREAS, Crescent Real Estate Equities, Ltd., the general partner of the
Partnership, has concluded that it is reasonable and prudent for the
Partnership contractually to obligate itself to indemnify in a reasonable and
adequate manner the Indemnitee and to assume for itself maximum liability for
expenses and damages in connection with claims lodged against the Indemnitee
for the Indemnitee's decisions and actions as a trust manager or officer, or
both, of the Company and on behalf of the Partnership and its affiliated
entities;
NOW, THEREFORE, in consideration of the foregoing, and of other good and
valuable consideration, the receipt and sufficiency of which are acknowledged
by each of the parties hereto, the parties agree as follows:
For purposes of this Agreement, the following terms shall have the
meanings set forth below:
A. "BOARD" shall mean the Trust Managers of Crescent.
B. "CHANGE IN CONTROL" shall mean a change in the ownership or power
to direct the Voting Securities of Crescent or the acquisition by a person not
affiliated with the Company of the ability to direct the management of the
Company.
C. "CORPORATE STATUS" shall mean the status of a person who is or
was a trust manager, officer, employee or agent of the Company, or a member of
any committee of the Board, a partner, officer, employee or agent of the
Partnership, a director, officer, employee or agent of the General Partner, a
director, officer, employee or agent of any past, present or future direct or
indirect subsidiary of the Company, a trust manager, director, officer,
employee or agent of any predecessor of the Company in a merger, consolidation,
or other transaction in which the
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liabilities of the predecessor are transferred to the Company by operation of
law and in any other transaction in which the Company assumes the liabilities
of the predecessor but does not specifically exclude liabilities to indemnify
persons as contemplated hereby, and the status of a person who, while a trust
manager or officer of the Company, is or was serving at the request of the
Company as a trust manager, director, officer, partner (including service as a
general partner of any limited partnership), venturer, proprietor, trustee,
employee, agent, or similar functionary of another real estate investment
trust, foreign or domestic corporation, partnership, joint venture, sole
proprietorship, trust, other incorporated or unincorporated entity or
enterprise or employee benefit plan.
D. "DISINTERESTED TRUST MANAGER" shall mean a trust manager of the
Company who, at the time of the vote, is not a named defendant or respondent in
the Proceeding in respect of which indemnification is being sought by the
Indemnitee.
E. "EXPENSES" shall mean any and all expenses of Proceedings,
including, without limitation, all attorneys' fees, retainers, court costs,
transcript costs, fees of experts, investigation fees and expenses, accounting
and witness fees, travel expenses, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees and all other
disbursements or expenses of the types customarily incurred in connection with
prosecuting, defending, preparing to prosecute or defend, investigating or
being or preparing to be a witness in a Proceeding.
F. "GOOD FAITH ACT OR OMISSION" shall mean an act or omission of the
Indemnitee other than (i) one committed in bad faith or that was the result of
the Indemnitee's active or deliberate dishonesty; (ii) one from which the
Indemnitee actually received an improper personal benefit in money, property or
services; or (iii) in the case of a criminal Proceeding, one as to which the
Indemnitee had cause to believe his conduct was unlawful.
G. "LIABILITIES" shall mean liabilities of any type whatsoever,
including, without limitation, any judgments, fines, excise taxes and penalties
under the Employee Retirement Income Security Act of 1974, as amended,
penalties and amounts paid in settlement (including all interest, assessments
and other charges paid or payable in connection with or in respect of such
judgments, fines, penalties or amounts paid in settlement) in connection with
the investigation, defense, settlement or appeal of any Proceeding or any
claim, issue or matter therein.
H. "PROCEEDING" shall mean any threatened, pending or completed
action, suit, proceeding, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing, or any other actual, threatened or
completed proceeding, whether civil, criminal, administrative, arbitrative or
investigative, any appeal or appeals therefrom, and any inquiry or
investigation that could lead to any of the foregoing.
I. "VOTING SECURITIES" shall mean any securities of Crescent that
are entitled to vote generally in the election of trust managers.
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II.
TERM OF AGREEMENT
This Agreement shall continue until, and terminate upon the later to
occur of (i) the death of the Indemnitee; or (ii) the final termination of all
Proceedings (including possible Proceedings) in respect of which the Indemnitee
is granted rights of indemnification or advancement of Expenses hereunder and
of any Proceeding commenced by the Indemnitee regarding the interpretation or
enforcement of this Agreement.
III.
NOTICE OF PROCEEDINGS, DEFENSE OF CLAIMS
A. NOTICE OF PROCEEDINGS. The Indemnitee agrees to notify the
Company promptly in writing upon being served with any summons, citation,
subpoena, complaint, indictment, information or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder, but the Indemnitee's omission to so notify the
Company shall not relieve either the Company or the Partnership from any
liability which either may have to the Indemnitee under this Agreement.
B. DEFENSE OF CLAIMS. The Company will be entitled to participate,
at the expense of the Company (and the Partnership as provided pursuant to
Section IV.A. hereof), in any Proceeding of which the Company has notice. The
Company jointly with any other indemnifying party similarly notified of any
Proceeding will be entitled to assume the defense of the Indemnitee therein,
with counsel reasonably satisfactory to the Indemnitee; provided, however, that
the Company shall not be entitled to assume the defense of the Indemnitee in
any Proceeding if there has been a Change in Control or if the Indemnitee has
reasonably concluded that there may be a conflict of interest between the
Company and the Indemnitee with respect to such Proceeding. The Company and
the Partnership will not be liable to the Indemnitee under this Agreement for
any Expenses incurred by the Indemnitee in connection with the defense of any
Proceeding, other than reasonable costs of investigation or as otherwise
provided below, after notice from the Company to the Indemnitee of its election
to assume the defense of the Indemnitee therein. The Indemnitee shall have the
right to employ his or her own counsel in any such Proceeding, but the fees and
expenses of such counsel incurred after notice from the Company of its
assumption of the defense thereof shall be at the expense of the Indemnitee
unless (i) the employment of counsel by the Indemnitee has been authorized by
the Company; (ii) the Indemnitee shall have reasonably concluded that counsel
employed by the Company may not adequately represent the Indemnitee and shall
have so informed the Company; or (iii) the Company shall not in fact have
employed counsel to assume the defense of the Indemnitee in such Proceeding or
such counsel shall not, in fact, have assumed such defense or such counsel
shall not be acting, in connection therewith, with reasonable diligence; and in
each such case the fees and expenses of the Indemnitee's counsel shall be
advanced by the Company and the Partnership.
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C. SETTLEMENT OF CLAIMS. The Company shall not settle any
Proceeding in any manner which would impose any liability, penalty or
limitation on the Indemnitee without the written consent of the Indemnitee;
provided, however, that the Indemnitee will not unreasonably withhold or delay
consent to any proposed settlement. The Company and the Partnership shall not
be liable to indemnify the Indemnitee under this Agreement or otherwise for any
amounts paid in settlement of any Proceeding effected by the Indemnitee without
the Company's written consent, which consent shall not be unreasonably withheld
or delayed.
IV.
INDEMNIFICATION
A. IN GENERAL. Upon the terms and subject to the conditions set
forth in this Agreement, the Company and the Partnership jointly and severally
shall hold harmless and indemnify the Indemnitee against any and all
Liabilities and Expenses actually incurred by or for the Indemnitee in
connection with any Proceeding (whether the Indemnitee is or becomes a party, a
witness or otherwise is a participant in any role) to the fullest extent
required or permitted by applicable law in effect on the date hereof and to
such greater extent as applicable law may hereafter from time to time require
or permit.
B. INDEMNIFICATION OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL.
Notwithstanding any other provision of this Agreement, to the extent that the
Indemnitee is, by reason of the Indemnitee's Corporate Status, a party to and
is successful, on the merits or otherwise, in any Proceeding, the Indemnitee
shall be indemnified by the Company and the Partnership, jointly and severally,
to the maximum extent consistent with law, against all Expenses and Liabilities
actually incurred by or for him in connection therewith. If the Indemnitee is
not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in
such Proceeding, the Company and the Partnership jointly and severally shall
hold harmless and indemnify the Indemnitee to the maximum extent consistent
with law, against all Expenses and Liabilities actually incurred by or for him
in connection with each successfully resolved claim, issue or matter in such
Proceeding. Resolution of a claim, issue or matter by dismissal, with or
without prejudice, shall be deemed a successful result as to such claim, issue
or matter, so long as there has been no finding (either adjudicated or pursuant
to Article VI hereof) that the act(s) or omissions) of the Indemnitee giving
rise thereto was not a Good Faith Act(s) or Omission(s).
C. INDEMNIFICATION FOR EXPENSES OF WITNESS. Notwithstanding any
other provision of this Agreement, to the extent that the Indemnitee, by reason
of the Indemnitee's Corporate Status, has prepared to serve or has served as a
witness in any Proceeding, or has participated in discovery proceedings or
other trial preparation, the Indemnitee shall be held harmless and indemnified
against all Expenses actually incurred by or for the Indemnitee in connection
therewith.
D. SPECIFIC LIMITATIONS ON INDEMNIFICATION. In addition to the
other limitations set forth in this Article IV, and notwithstanding anything in
this Agreement to the contrary, the Company and the Partnership shall not be
obligated under this Agreement to make any payment to the Indemnitee for
indemnification with respect to any Proceeding:
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1. To the extent that payment is actually made to the
Indemnitee under any insurance policy or is made on behalf of the
Indemnitee by or on behalf of the Company or the Partnership, or both,
otherwise than pursuant to this Agreement;
2. If a court in such Proceeding has entered a judgment or
other adjudication which is final and has become nonappealable and
established that a claim of the Indemnitee for such indemnification
arose from: (i) a breach by the Indemnitee of the Indemnitee's duty of
loyalty to the Company or its shareholders; or (ii) an act(s) or
omission(s) of the Indemnitee that is not a Good Faith Act(s) or
Omission(s);
3. If there has been no Change in Control, for Liabilities in
connection with Proceedings settled without the consent of the Company;
and
4. For an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company within the meaning
of section 16(b) of the Securities Exchange Act of 1934, as amended, or
similar provisions of any federal, state or local statute or regulation.
V.
ADVANCEMENT OF EXPENSES
Notwithstanding any provision to the contrary in Article VI hereof, the
Company and the Partnership jointly and severally shall advance to the
Indemnitee all Expenses which were incurred by or for the Indemnitee in
connection with any Proceeding for which the Indemnitee is entitled to
indemnification pursuant to Article IV hereof in advance of the final
disposition of such Proceeding, provided that, with respect to Expenses to be
advanced by the Company, the Company receive an undertaking by or on behalf of
the Indemnitee to repay Expenses advanced if it shall ultimately be determined
that the Indemnitee is not entitled to be indemnified by the Company hereunder
in such form as may be required under applicable law as in effect at the time
of execution thereof (the "Undertaking"). The Undertaking shall reasonably
evidence the Expenses incurred by or for the Indemnitee and shall contain a
written affirmation by the Indemnitee of his good faith belief that the
standard of conduct necessary for indemnification has been met. The Company
and the Partnership shall advance such expenses within five business days after
the receipt by the Company and the Partnership of the Undertaking. The
Indemnitee hereby agrees to repay any Expenses advanced hereunder if it shall
ultimately be determined that the Indemnitee is not entitled to be indemnified
against such Expenses. Any advances and the undertaking to repay pursuant to
this Article V shall be unsecured and interest free, and shall be made and
accepted by the Company and the Partnership without reference to the
Indemnitee's financial ability to make repayment.
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VI.
PROCEDURE FOR PAYMENT OF LIABILITIES;
DETERMINATION OF RIGHT TO INDEMNIFICATION
A. PROCEDURE FOR PAYMENT. To obtain indemnification for Liabilities
under this Agreement, the Indemnitee shall submit to the Company and the
Partnership a written request for payment, including with such request such
documentation as is reasonably available to the Indemnitee and reasonably
necessary to determine whether, and to what extent, the Indemnitee is entitled
to indemnification and payment hereunder. Any indemnification payment due
hereunder shall be paid by the Company and the Partnership no later than five
business days following the determination, pursuant to this Article VI, that
such indemnification payment is proper hereunder.
B. NO DETERMINATION NECESSARY WHEN THE INDEMNITEE WAS SUCCESSFUL.
To the extent the Indemnitee has been successful, on the merits or otherwise,
in defense of any Proceeding or in the defense of any claim, issue or matter in
such Proceeding, the Company and the Partnership jointly and severally shall
indemnify the Indemnitee against all Expenses actually incurred by or for the
Indemnitee in connection with such Proceeding.
C. DETERMINATION OF GOOD FAITH ACT OR OMISSION. In the event that
Section VI.B. is inapplicable, the Company and the Partnership jointly and
severally also shall hold harmless and indemnify the Indemnitee, except that
the Company shall have no liability to the Indemnitee hereunder if the Company
shall prove by clear and convincing evidence to a forum listed in Section VI.D.
below that the act(s) or omissions of the Indemnitee giving rise to the
Proceeding was not a Good Faith Act(s) or Omission(s).
D. FORUM FOR DETERMINATION. The Indemnitee shall be entitled to
select from among the following the forum in which the validity of the
Company's claim under Section VI.C. above that the Indemnitee is not entitled
to indemnification will be heard:
1. A quorum of the Board consisting of Disinterested Trust
Managers;
2. If such a quorum cannot be obtained, a committee of the
Board, designated to act in the matter by a majority vote of all Trust
Managers, consisting of two or more Trust Managers who are Disinterested
Trust Managers;
3. The shareholders of the Company;
4. Legal counsel selected by the Indemnitee, subject to the
approval of the Board, which approval shall not be unreasonably delayed
or denied, which counsel shall make such determination in a written
opinion; or
5. A panel of three arbitrators, one of whom is selected by
the Company, another of whom is selected by the Indemnitee and the last
of whom is selected jointly by the first two arbitrators so selected.
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As soon as practicable, and in no event later than thirty days after written
notice of the Indemnitee's choice of forum pursuant to this Section VI.D., the
Company shall, at the expense of the Company, submit to the selected forum in
such manner as the Indemnitee or the Indemnitee's counsel may reasonably
request, its claim that the Indemnitee is not entitled to indemnification, and
the Company shall act in the utmost good faith to assure the Indemnitee a
complete opportunity to defend against such claim. The fees and expenses of
the selected forum in connection with making the determination contemplated
hereunder shall be paid by the Company. If the Company shall fail to submit
the matter to the selected forum within thirty days after the Indemnitee's
written notice or if the forum so empowered to make the determination shall
have failed to make the requested determination within thirty days after the
matter has been submitted to it by the Company, the requisite determination
that the Indemnitee has the right to indemnification shall be deemed to have
been made.
E. RIGHT TO APPEAL. Notwithstanding a determination by any forum
listed in Section VI.D. above that the Indemnitee is not entitled to
indemnification with respect to a specific Proceeding, the Indemnitee shall
have the right to apply to the court in which that Proceeding is or was
pending, or to any other court of competent jurisdiction, for the purpose of
enforcing the Indemnitee's right to indemnification pursuant to this Agreement.
Such enforcement action shall consider the Indemnitee's entitlement to
indemnification de novo, and the Indemnitee shall not be prejudiced by reason
of a prior determination that the Indemnitee is not entitled to
indemnification. The Company and the Partnership shall be precluded from
asserting that the procedures and presumptions of this Agreement are not valid,
binding and enforceable. The Company and the Partnership further agree to
stipulate in any such judicial proceeding that the Company and the Partnership
are bound by all the provisions of this Agreement and are precluded from making
any assertion to the contrary.
F. RIGHT TO SEEK JUDICIAL DETERMINATION. Notwithstanding any other
provision of this Agreement to the contrary, at any time after sixty days after
a request for indemnification has been made to the Company and the Partnership
(or upon earlier receipt of written notice that a request for indemnification
has been rejected) and before the third anniversary of the making of such
indemnification request, the Indemnitee may petition a court of competent
jurisdiction, whether or not such court has jurisdiction over, or is the forum
in which is pending, the Proceeding, to determine whether the Indemnitee is
entitled to indemnification hereunder, and such court thereupon shall have the
exclusive authority to make such determination, unless and until such court
dismisses or otherwise terminates the Indemnitee's action without having made
such determination. The court, as petitioned, shall make an independent
determination of whether the Indemnitee is entitled to indemnification
hereunder, without regard to any prior determination in any other forum as
provided hereby.
G. EXPENSES UNDER THIS AGREEMENT. Notwithstanding any other
provision in this Agreement to the contrary, the Company and the Partnership
jointly and severally shall indemnify the Indemnitee against all Expenses
incurred by the Indemnitee in connection with any hearing or proceeding under
this Section VI involving the Indemnitee and against all Expenses incurred by
the Indemnitee in connection with any other action between the Company and the
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Partnership, or either of them, and the Indemnitee involving the interpretation
or enforcement of the rights of the Indemnitee under this Agreement, even if it
is finally determined that the Indemnitee is not entitled to indemnification in
whole or in part hereunder.
VII.
PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS
A. BURDEN OF PROOF. In making a determination with respect to
entitlement to indemnification hereunder, the person, persons, entity or
entities making such determination shall presume that the Indemnitee is
entitled to indemnification under this Agreement and the Company and the
Partnership shall have the burden of proof to overcome that presumption.
B. EFFECT OF OTHER PROCEEDINGS. The termination of any Proceeding
or of any claim, issue or matter therein, by judgment, order, settlement or
conviction, or upon a plea of nolo contendere or its equivalent, or an entry of
an order of probation prior to judgment, shall not of itself be determinative
that the act(s) or omission(s) giving rise to the Proceeding were not Good
Faith Act(s) or Omission(s).
C. RELIANCE AS SAFE HARBOR. For purposes of any determination of
whether any act or omission of the Indemnitee was a Good Faith Act or Omission,
each act of the Indemnitee shall be deemed to be a Good Faith Act or Omission
if the Indemnitee's action is based on the records or books of accounts of the
Company and the Partnership, or either of them, including financial statements,
or on information supplied to the Indemnitee by the officers of the Company or
the general partner of the Partnership in the course of their duties, or on the
advice of legal counsel for the Company or the Partnership, or both, or on
information or records given or reports made to the Company and the
Partnership, or either of them, by an independent certified public accountant
or by an appraiser or other expert selected with reasonable care by the Company
and the Partnership, or either of them. The provisions of this Section VII.C.
shall not be deemed to be exclusive or to limit in any way the other
circumstances in which the Indemnitee may be deemed to have met the applicable
standard of conduct set forth in this Agreement or under applicable law.
D. ACTIONS OF OTHERS. Neither the knowledge, actions, or failure to
act, of any trust manager, director, officer, agent or employee of the Company
or the Partnership or the general partners of the Partnership, or any one or
more of them, shall not be imputed to the Indemnitee for purposes of
determining the right to indemnification under this Agreement.
VIII.
INSURANCE; OTHER INDEMNIFICATION ARRANGEMENTS
A. INSURANCE. In the event that the Company or the Partnership, or
both, maintains officers' and directors' or similar liability insurance to
protect itself and any trust manager or officer of the Company or official of
the Partnership against any expense, liability or loss, such
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insurance shall cover the Indemnitee to at least the same degree as each other
trust manager or officer, or both, of the Company or official of the
Partnership.
B. OTHER ARRANGEMENTS. The Declaration of Trust and Bylaws of the
Company, the Partnership Agreement of the Partnership, the Act and the DRULPA
permit the Company and the Partnership to purchase and maintain insurance or
furnish comparable protection or make other arrangements, including but not
limited to providing a trust fund, letter of credit, or surety bond
(collectively, "Indemnification Arrangements") on behalf of the Indemnitee
against any Liability asserted against or incurred by the Indemnitee or any
Expenses incurred by the Indemnitee or on the Indemnitee's behalf in connection
with actions taken or omissions by the Indemnitee in the Indemnitee's Corporate
Status, whether or not the Company or the Partnership, or both, would have the
power to indemnify the Indemnitee under this Agreement or under the Act or the
DRULPA, as they may be in effect from time to time. The purchase,
establishment or maintenance, or any combination thereof, of any such
Indemnification Arrangement shall in no way affect or limit the rights and
obligations of the Indemnitee, the Company or the Partnership hereunder, except
as expressly provided herein, and the execution and delivery of this Agreement
by the Indemnitee, the Company and the Partnership shall in no way affect or
limit the rights and obligations of such parties under or with respect to any
other such Indemnification Arrangement.
IX.
OBLIGATIONS OF THE COMPANY UPON A CHANGE IN CONTROL
In the event of a Change in Control, upon written request of the
Indemnitee the Company and the Partnership shall establish a trust for the
benefit of the Indemnitee hereunder (a "Trust") and from time to time, upon
written request from the Indemnitee, shall fund the Trust in an amount
sufficient to satisfy all amounts actually paid hereunder as indemnification
for Liabilities or Expenses (including those paid in advance) or which the
Indemnitee reasonably determines and demonstrates, from time to time, may be
payable by the Company and the Partnership hereunder. The amount or amounts to
be deposited in the Trust shall be determined by legal counsel selected by the
Indemnitee and approved by the Company, which approval shall not be
unreasonably withheld. The terms of the Trust shall provide that (i) the Trust
shall not be dissolved or the principal thereof invaded without the written
consent of the Indemnitee; (ii) the trustee of the Trust (the "Trustee") shall
be selected by the Indemnitee; (iii) the Trustee shall make advances to the
Indemnitee for Expenses within ten business days following receipt of a written
request therefor (and the Indemnitee hereby agrees to reimburse the Trust under
the circumstances under which the Indemnitee would be required to reimburse the
Company under Article V hereof; (iv) the Company shall continue to fund the
Trust from time to time in accordance with its funding obligations hereunder;
(v) the Trustee promptly shall pay to the Indemnitee all amounts as to which
indemnification is due under this Agreement; (vi) unless the Indemnitee agrees
otherwise in writing, the Trust for the Indemnitee shall be kept separate from
any other trust established for any other person to whom indemnification might
be due by the Company or the Partnership; and (vii) all unexpended funds in the
Trust shall revert to the Company upon final, nonappealable determination by a
court of competent jurisdiction that the Indemnitee has been indemnified to the
full extent required under this Agreement.
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X.
NON-EXCLUSIVITY, SUBROGATION AND MISCELLANEOUS
A. NON-EXCLUSIVITY. The rights of the Indemnitee hereunder shall
not be deemed exclusive of any other rights to which the Indemnitee may at any
time be entitled under any provision of law, the Declaration of Trust, the
Bylaws of the Company, as the same may be in effect from time to time, the
Partnership Agreement, any other agreement, a vote of shareholders of the
Company or any general or specific action of the Trust Managers of the Company
or otherwise, and to the extent that during the term of this Agreement the
rights of the then-existing trust managers and officers of the Company are more
favorable to such trust managers or officers than the rights currently provided
to the Indemnitee under this Agreement, the Indemnitee shall be entitled to the
full benefits of such more favorable rights. No amendment, alteration,
rescission or replacement of this Agreement or any provision hereof which would
in any way limit the benefits and protections afforded to an Indemnitee hereby
shall be effective as to such Indemnitee with respect to any action or inaction
by such Indemnitee in the Indemnitee's Corporate Status prior to such
amendment, alteration, rescission or replacement.
B. SUBROGATION. In the event of any payment under this Agreement,
the Company or the Partnership, or both, as the case may be, shall be
subrogated to the extent of such payment to all of the rights of recovery of
the Indemnitee, who shall execute all documents required and take all action
necessary to secure such rights, including execution of such documents as are
necessary to enable the Company or the Partnership, or both, to bring suit to
enforce such rights.
C. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (i)
if delivered by hand, by courier or by telegram and receipted for by the party
to whom said notice or other communication shall have been directed at the time
indicated on such receipt; (ii) if by facsimile at the time shown on the
confirmation of such facsimile transmission; or (iii) if by U.S. certified or
registered mail, with postage prepaid, on the third business day after the date
on which it is so mailed:
If to the Indemnitee, as shown with the Indemnitee's signature below.
If to the Company to:
Crescent Real Estate Equities Company
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: President
Facsimile No. (000) 000-0000
If to the Partnership to:
Crescent Real Estate Equities Limited Partnership
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Attention: General Partner
Facsimile No. (000) 000-0000
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Form Page 12
or to such other address as may have been furnished to the Indemnitee by the
Company and the Partnership, or either of them, or to the Company and the
Partnership by the Indemnitee, as the case may be.
D. GOVERNING LAW. The parties agree that, with respect to the
obligations of Crescent hereunder, this Agreement shall be governed by, and
construed and enforced in accordance with, the substantive laws of the State of
Texas, without regard to conflicts of laws principles, and, with respect to the
obligations of the Partnership and Crescent Real Estate Equities, Ltd., which
is a Delaware corporation, the substantive laws of the State of Delaware,
without regard to conflicts of laws principles.
E. BINDING EFFECT. Except as otherwise provided in this Agreement,
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their heirs, executors, administrators, successors, legal
representatives and permitted assigns. The Company and the Partnership each
shall require any successor or assignee (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of
their respective assets or businesses, by written agreement in form and
substance reasonably satisfactory to the Indemnitee, expressly to assume and
agree to be bound by and to perform this Agreement in the same manner and to
the same extent as the Company or the Partnership, as the case may be, would be
required to perform absent such succession or assignment.
F. WAIVER. No termination, cancellation, modification, amendment,
deletion, addition or other change in this Agreement, or any provision hereof,
or waiver of any right or remedy herein, shall be effective for any purpose
unless specifically set forth in a writing signed by the party or parties to be
bound thereby. The waiver of any right or remedy with respect to any
occurrence on one occasion shall not be deemed a waiver of such right or remedy
with respect to such occurrence on any other occasion.
G. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding among the parties hereto in reference to the
subject matter hereof; provided, however, that the parties acknowledge and
agree that the Declaration of Trust and Bylaws of the Company and the
Partnership Agreement of the Partnership contain provisions on the subject
matter hereof and that this Agreement is not intended to, and does not, limit
the rights or obligations of the parties hereto pursuant to such instruments.
H. TITLES. The titles to the articles and sections of this
Agreement are inserted for convenience of reference only and should not be
deemed a part hereof or affect the construction or interpretation of any
provisions hereof.
I. INVALIDITY OF PROVISIONS. Every provision of this Agreement is
severable, and the invalidity or unenforceability of any term or provision
shall not affect the validity or enforceability of the remainder of this
Agreement.
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Form Page 13
J. PRONOUNS AND PLURALS. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
K. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together constitute one agreement binding on all the parties hereto.
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Form Page 14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CRESCENT REAL ESTATE EQUITIES COMPANY
By:
Name:
Title:
CRESCENT REAL ESTATE EQUITIES
LIMITED PARTNERSHIP
By: CRESCENT REAL ESTATE EQUITIES,
LTD., its general partner
By:
Name:
Title:
as INDEMNITEE
Name:
Title:
Address: 000 Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
