EXHIBIT 10.2
PURCHASE AGREEMENT
This Purchase Agreement (this "Agreement"), dated as of April 22, 2002,
is by and among Xxxxx & Steers Capital Management, Inc. ("Xxxxx & Steers"), the
client accounts of Xxxxx & Steers, as set forth on Schedule A (each a
"PURCHASER" and collectively the "PURCHASERS"), and Crescent Real Estate
Equities Company (the "SELLER").
WHEREAS, the PURCHASERS, desire to purchase from SELLER, and SELLER
desires to issue and sell to PURCHASERS, in the aggregate 2,800,000 shares of
its 6 3/4% Series A Preferred Shares of beneficial interest, par value $.01 per
share (the "Shares"), with the number of Shares acquired by each PURCHASER set
forth on Schedule A.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties hereto agree as follows:
1. Purchase and Sale. Subject to the terms and conditions hereof, the
PURCHASERS hereby agree to purchase from SELLER, and SELLER agrees to issue and
sell to PURCHASERS, the Shares at a price per share of $18.00 for an aggregate
purchase amount of $50,400,000 (the "Purchase Price").
2. Representations and Warranties of PURCHASER. Each PURCHASER
represents and warrants that:
(a) Due Authorization. The PURCHASER is duly authorized to
purchase the Shares. This Agreement has been duly authorized, executed
and delivered by the PURCHASER and constitutes a legal, valid and
binding agreement of the PURCHASER or of Xxxxx & Steers on behalf of
the Purchaser, enforceable against the PURCHASER in accordance with its
terms except as may be limited by (i) the effect of bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights or remedies of creditors or (ii) the effect
of general principles of equity, whether enforcement is considered in a
proceeding in equity or at law and the discretion of the court before
which any proceeding therefor may be brought.
(b) Not a Party in Interest; Disqualified Person. With respect
to SELLER, PURCHASER is not a "party in interest" as such phrase is
used in the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or a "disqualified person" as such phrase is used in the
Internal Revenue Code of 1986, as amended ("Code").
(c) Not a Prohibited Transaction. The purchase of the Shares
from SELLER will not give rise to a nonexempt "prohibited transaction"
under ERISA or the Code.
3. Representations and Warranties of SELLER. SELLER represents and
warrants that:
(a) Due Authorization. This Agreement has been duly
authorized, executed and delivered by SELLER and constitutes a legal,
valid and binding agreement of SELLER, enforceable against SELLER in
accordance with its terms except as may be limited by (i) the effect of
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights or remedies of creditors or
(ii) the effect of general principles of equity, whether enforcement is
considered in a proceeding in equity or at law and the discretion of
the court before which any proceeding therefor may be brought.
(b) Organization and Authority. SELLER has been duly formed as
a real estate investment trust under the laws of Texas, with full power
and authority to own or lease and occupy its properties and conduct its
business as described in the Prospectus. According to the County Clerk
of Tarrant County, Texas, the Restated Declaration of Trust of the
Company is recorded in Volume 12645, beginning at Page 1811, in the
records of the County Clerk and the Articles of Amendment to the
Restated Declaration of Trust, as amended, is recorded in Volume 15194,
beginning at Page 311, in the records of the County Clerk. The Restated
Declaration of Trust, as amended, is in effect, and no dissolution,
revocation or forfeiture proceedings regarding the Company have been
commenced.
(c) Issuance of the Shares. The Shares have been duly and
validly authorized and, when issued and delivered pursuant to this
Agreement, will be fully paid and nonassessable and will be listed,
subject to notice of issuance, on the New York Stock Exchange effective
as of the Closing (as defined in Paragraph 6 of this Agreement).
(d) Absence of Conflicts. The execution, delivery and
performance of this Agreement and the consummation of transactions
contemplated herein do not and will not result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the SELLER.
4. Representation and Warranty of Xxxxx & Steers. Xxxxx & Steers hereby
represents and warrants that it has been duly authorized to act as investment
adviser on behalf of each PURCHASER, and that it has the power and authority to
enter into this Agreement on behalf of each PURCHASER.
2
5. Conditions to Obligations of the Parties. As a condition to Closing,
each of the representations and warranties of the parties hereto shall be true
and correct in all respects. As a condition to Xxxxx & Steers' and the
PURCHASERS' obligations at Closing, at Closing, Xxxxx & Steers and the
PURCHASERS shall have received (i) the favorable opinion of counsel to the
SELLER, dated as of the Closing, to the effect as set forth in Annex A & Annex B
to the Placement Agency Agreement between the Placement Agent (as defined
therein) and SELLER, dated as of April 22, 2002, and (ii) a copy of SELLER's
Prospectus and Prospectus Supplement each dated April 22, 2002 (collectively,
the "Prospectus").
6. Closing. The transactions contemplated hereby shall be consummated
on April 26, 2002 (such time and date of payment and delivery being herein
called the "Closing"). At the Closing, settlement shall occur through Xxxxxxx
Xxxxx & Co., Inc., or an affiliate thereof, on a delivery versus payment basis
through the DTC ID System.
7. Governing Law. This Agreement shall be construed in accordance with
and governed by the substantive laws of the State of New York.
8. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and may be
amended only in a writing that is executed by each of the parties hereto.
9. Counterparts. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, and all of which
together shall be deemed to constitute one and the same instrument.
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
CRESCENT REAL ESTATE EQUITIES COMPANY
By: /s/ Xxxxx X. Xxxxxxxx, Xx.
-----------------------------------
Name: Xxxxx X. Xxxxxxxx, Xx.
Title: Senior Vice President and Chief Financial Officer
XXXXX & STEERS CAPITAL MANAGEMENT, INC., on behalf of itself
and as investment adviser to the client accounts specified on
Schedule A
By: /s/ Xxxxxx Xxxxx
-----------------------------------
Name: Xxxxxx Xxxxx
Title: President
SCHEDULE A
Name of Client Number of Shares
-------------- ----------------
Berkeley Regional Insurance Company 23,100
Xxxxx & Steers Equity Income Fund, Inc. 315,300
Xxxxx & Steers Special Equity Fund, Inc. 51,200
Fairfax County Uniformed Retirement System 3,200
North Shore-Long Island Jewish
Health System Cash Balance Plan 4,600
New York State Teachers' Retirement System 46,900
Xxxxx & Steers Total Return Realty Fund, Inc. 71,200
Xxxxx & Steers Advantage Income Realty Fund, Inc. 364,300
Xxxxx & Steers Quality Income Realty Fund, Inc. 1,888,900
Signet Star Reinsurance Company 9,000
University of Mass. Foundation Inc. 3,100
United Mine Workers of America 1974 Pension Trust 19,200
