EXHIBIT 4.05
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated June 5,
2002 (the "Agreement"), is entered into by and among Crescent Real Estate
Equities Limited Partnership, a Delaware limited partnership (the "Company"),
and Crescent Finance Company ("Crescent Finance" and, together with the Company,
the "Issuers") and Xxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxx, Xxxxxxxx X. Xxxxxxxxx,
Xxxxxxx X. Xxxxxxxxx, R. Xxxx Xxxxxxxxx, Xxxxxxxxx, Inc. and The Xxxxxxx X.
Xxxxxxxxx Charitable Remainder Unitrust No. 2 (together with their successors or
assigns, the "Initial Purchasers").
RECITALS
WHEREAS, the Issuers and the Initial Purchasers entered into a
Registration Rights Agreement, dated April 10, 2002 (the "Initial Agreement"),
providing the Initial Purchasers with certain registration rights in connection
with their purchase of $50,000,000 aggregate principal amount of the Issuers'
9.25% Senior Notes due 2009 (the "Securities"). Capitalized terms used herein
without definition shall have the meanings given to such terms in the Initial
Agreement.
WHEREAS, the Initial Agreement incorrectly references a Purchase
Agreement, dated April 10, 2002, by and among the Issuers and the Initial
Purchasers (the "Purchase Agreement"), which does not exist.
WHEREAS, the Issuers and the Initial Purchasers desire to amend and
restate the Initial Agreement as provided herein solely in order to remove all
references to the Purchase Agreement.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties to this
Agreement hereby 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 Texas are authorized or required by law
to remain closed.
"Closing Date" shall mean April 15, 2002.
"Company" shall have the meaning set forth in the preamble and shall
also include the Company'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(a)
hereof.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
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"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.
"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 then-held by
Holders.
"Person" shall mean an individual, partnership, limited liability
company, corporation, trust or unincorporated organization, or a government or
agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Shelf 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, including post-effective
amendments, 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 Shelf
Registration Statement with respect to such Securities has been declared
effective under the Securities Act and such Securities have been disposed of
pursuant to such Shelf 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 Company 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
Registrable Securities), (iii) all expenses of any Persons in preparing or
assisting in preparing, word processing, printing and distributing any Shelf
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 Company,
including the expenses of any special audits or "comfort" letters required by or
incident to the performance of and compliance with this Agreement, but
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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.
"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 Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 2(a) 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) The Issuers shall use
their reasonable best efforts to cause to be filed, as soon as practicable
following the sixtieth (60th) day after the Closing Date, but in no event prior
to filing of the Exchange Offer (as that term is defined in the Offering
Memorandum), 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, provided that, the Shelf
Registration Statement shall not be declared effective prior to the 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.
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(b) The Issuers shall pay all Registration Expenses in
connection with the registration pursuant to Section 2(a) hereof. Each
Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such
Holder's Registrable Securities pursuant to the Shelf Registration
Statement.
(c) A Shelf Registration Statement pursuant to Section 2(a)
hereof will not be deemed to have become effective unless it has been
declared effective by the SEC.
In the event that the Shelf Registration Statement 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 or (ii) if the Shelf Registration Statement is not declared
effective at the end of such 90-day period, by an additional 0.50% per annum, in
each case until the Shelf Registration Statement 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.
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.
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.
(d) 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) 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) hereof.
3. Registration Procedures. In connection with their obligations
pursuant to Section 2(a) hereof, the Issuers shall as expeditiously as possible:
(a) prepare and file with the SEC a Shelf Registration
Statement on the appropriate form under the Securities Act, which form
(x) shall be selected by the Company, (y) shall be available for the
sale of the Registrable Securities by the selling Holders thereof (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 Shelf Registration Statement to become effective and remain
effective for the applicable period in accordance with Section 2
hereof;
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(b) prepare and file with the SEC such amendments and
post-effective amendments to such Shelf Registration Statement as may
be necessary to keep such Shelf 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;
(c) 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 Company consents 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 Shelf Registration Statement shall reasonably
request in writing by the time the applicable Shelf 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 the Company
shall not 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 already
not so subject;
(e) 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 Shelf 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 (B) supplements to a Shelf Registration
Statement and Prospectus or for additional information after the Shelf
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 Shelf Registration Statement or the initiation
of any proceedings for that purpose, (iv) if, between the effective
date of a Shelf 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
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for such purpose, (v) of the happening of any event during the period
of the Shelf Registration Statement is effective that makes any
statement made in such Shelf Registration Statement or the related
Prospectus untrue in any material respect or that requires the making
of any changes in such Shelf 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 Shelf
Registration Statement would be appropriate;
(f) use its reasonable best efforts to obtain the withdrawal
of any order suspending the effectiveness of a Shelf Registration
Statement at the earliest possible moment and provide immediate notice
to each Holder of the withdrawal of any such order;
(g) furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of such Shelf Registration
Statement and any post-effective amendment thereto (without any
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) 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) 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 any required supplement or post-effective
amendment to the Shelf 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 Shelf
Registration Statement, any Prospectus, any amendment to a Shelf
Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers or Holders
and their counsel and make such of the representatives of the Issuers
as shall be reasonably requested by the Initial Purchasers or Holders
or their counsel reasonably available for discussion of such document;
and the Issuers shall not, at any time after initial filing of a Shelf
Registration Statement, file any Prospectus, any amendment of or
supplement to a Shelf Registration Statement or a Prospectus, of which
the Initial Purchasers or Holders and their counsel shall not have
previously been advised and furnished a copy and of which the Initial
Purchasers or Holders or their counsel shall not have objected to
within 10 Business Days of the date of receipt;
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(k) obtain a CUSIP number for all Registrable Securities, as
the case may be, not later than the effective date of a Shelf
Registration Statement;
(l) cause the Indenture to be qualified under the Trust
Indenture Act in connection with the registration of the Registrable
Securities; 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 its 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) 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, 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,
managing 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 Shelf 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
Company has received notification of the matters to be incorporated in
such filing; and
(o) 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 the
Company's subsidiaries, the Shelf 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 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
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financial statements and financial data are or are required to be
included in the Shelf 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 to
evidence compliance with any customary conditions contained in an
underwriting agreement.
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.
Each Holder of Registrable Securities agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 3(e)(ii)(A), 3(e)(iii), 3(e)(iv)(B) or 3(e)(v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a Shelf
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 Company that the use of the
applicable Prospectus may be resumed, and, if so directed by the Company, such
Holder will deliver to the Company 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 Shelf 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 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 Company, 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 executed all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required in connection with such Underwritten Offering.
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4. Indemnification and Contribution. (a) The Issuers jointly and
severally agree to indemnify and hold harmless each Initial Purchaser, 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), arising
out of any untrue statement or alleged untrue statement of a material fact
contained in the Shelf Registration Statement or any Prospectus, or arising out
of 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 (i) arise out of 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 any Holder furnished to the Issuers in writing by such Initial
Purchaser or Holder expressly for use therein or (ii) would not have arisen if
such Initial Purchaser or Holder had not failed to deliver a prospectus, or
amended or supplemental prospectus.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers and the other selling Holders,
their respective affiliates, the officers and directors of the Issuers
and each Person, if any, who controls the Issuers or 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 arising out of 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
the Shelf 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 4 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 4. If any such proceeding shall be brought or asserted against
an Indemnified Person and it shall have notified the Indemnifying
Person thereof, (i) in case the Indemnified Persons are Holders, their
officers or directors and any control Persons, counsel to the
Indemnified Persons shall be selected by the Majority Holders and (ii)
in the case the Indemnified Persons are the Issuers, their officers and
directors and any control Persons, counsel to the Indemnified Persons
shall be selected by the Issuers. 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
separate firm (in
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addition to any local counsel) separate from their own counsel for all
Indemnified Persons, and that all such fees and expenses shall be
reimbursed as they are incurred. 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 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, on the one hand, and by the
Holders from receiving 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 contributions pursuant to this Section 4 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 4,
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
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
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misrepresentation. The Holders' respective obligations to contribute
pursuant to Sections 4(d) and 4(e) are several in proportion to the
respective number of Registrable Securities of such Holder that were
registered pursuant to a Shelf Registration Statement.
(f) The remedies provided for in this Section 4 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 4 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 or any Person controlling any Initial Purchaser or any Holder,
or by or on behalf of the Issuers or the officers or directors of or
any Person controlling the Issuers, (iii) acceptance of any of the
Securities and (iv) any sale of Registrable Securities pursuant to a
Shelf Registration Statement.
5. 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 not 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 5(b) shall be by written consent by each of
the parties hereto.
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(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 5(c), which address
initially is, with respect to each of the Initial Purchasers, x/x X.
Xxxxxxx Xxxxxxx, Xxxxxxxx-xx-Xxxx, 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx
Xxxxx, Xxxxx 00000 (fax: 000-000-0000, telephone: 000-000-0000), with a
copy to Xxxxxxxx & Knight L.L.P., 0000 Xxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxx 00000 (fax: 000-000-0000, telephone: 000-000-0000),
Attention: Xxxxxxxxxxx X. Xxx, Esq.; and (ii) if to the Issuers,
initially to 000 Xxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxxx, Xxxxx 00000,
Attention: Corporate Secretary, (fax: 000-000-0000, telephone:
000-000-0000), with a copy to Xxxx Xxxxxxx LLP, 0000 X Xxxxxx, XX,
Xxxxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx, Esq., (fax:
000-000-0000, telephone: 000-000-0000) and thereafter at such other
address, notice of which is given in accordance with the provisions of
this Section 5(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 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 Company 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 non-Holder
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
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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 Texas and all
applicable federal laws.
(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.
6. Effectiveness. This Amendment shall become effective immediately
upon execution by the Issuers and the Initial Purchasers.
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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 general partner
By: /s/Xxxx X. Xxxx
-----------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President,
Capital Markets
CRESCENT FINANCE COMPANY
By: /s/Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President,
Capital Markets
Confirmed and accepted as of the
date first above written:
/s/ J. Xxxxxxx Xxxxxxx
------------------------------------------
J. Xxxxxxx Xxxxxxx, Attorney-in-Fact for
(i) Xxxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxx,
Xxxxxxxx X. Xxxxxxxxx, Xxxxxxx X.
Xxxxxxxxx, and R. Xxxx Xxxxxxxxx,
individually, (ii) Xxxxxxx X. Xxxxxxxxx,
Trustee of The Xxxxxxx X. Xxxxxxxxx
Charitable Remainder Unitrust No. 2, and
(iii) Xxxxxxx X. Xxxxxxxxx as President of
Rainwater, Inc.
