Exhibit 10.
$229,000,000
XXXX XX Corp.
11 1/4% Senior Subordinated Notes Due 2011
PURCHASE AGREEMENT
May 31, 2001
Credit Suisse First Boston Corporation
Credit Lyonnais Securities (USA) Inc.
HSBC Securities (USA) Inc.
Scotia Capital (USA) Inc.
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. XXXX XX Corp., a Delaware
corporation (the "Issuer"), which is a wholly owned
subsidiary of CBRE Holding, Inc. ("Holdings"), a Delaware
corporation, proposes, subject to the terms and conditions
stated herein, to issue and sell to Credit Suisse First
Boston Corporation ("CSFBC"), Credit Lyonnais Securities
(USA) Inc., HSBC Securities (USA) Inc. and Scotia Capital
(USA) Inc. (the "Initial Purchasers") $229,000,000 aggregate
principal amount of its 11 1/4% Senior Subordinated Notes Due
2011 (the "Notes"). The Notes will be unconditionally
guaranteed on a senior subordinated basis by Holdings (the
"Parent Guaranty"; the Parent Guaranty, together with the
Notes, the "Offered Securities"). The Offered Securities
are to be issued pursuant to an indenture (the "Indenture")
to be dated as of June 7, 2001 (the "Closing Date"), between
the Issuer, Holdings and State Street Bank and Trust Company
of California, N.A., as trustee (the "Trustee"). As part of
the transactions (the "Transactions") as defined in the
"Description of the Notes" and as described under the
heading "The Transactions" in the Offering Document (as
defined herein), the Issuer will merge with and into CB
Xxxxxxx Xxxxx Services, Inc., a Delaware corporation (the
"Company"), with the Company as the surviving corporation in
such merger (the "Merger"). As a result of the Merger, all
of the Issuer's obligations under the Notes, the Indenture,
the Registration Rights Agreement and the Escrow Agreement
(as each term is defined herein) will, by operation of law,
become obligations of the Company. Concurrently with the
consummation of the Merger, (1) the Company and the
Subsidiary Guarantors (as defined herein) will execute
counterparts to this Agreement and the Registration Rights
Agreement, which will cause the obligations of the Issuer
under this Agreement and the Registration Rights Agreement
which survive past the closing date of the Merger to be
contractually assumed by the Company and the Subsidiary
Guarantors, (2) the Company will enter into a supplemental
indenture relating to the Indenture (the "Supplemental
Indenture"), which Supplemental Indenture will cause the
obligations of the Issuer under the Indenture to be assumed
by the Company, (3) the Company will enter into a credit
agreement (together with the related guaranties and
security documents, the "Credit Agreement") among itself,
the guarantors named therein, Credit Suisse First Boston,
New York branch, as administrative agent, and the lenders
named therein and (4) each subsidiary of the Company that is
a guarantor under the Credit Agreement (the "Subsidiary
Guarantors") will guarantee the Notes on an unconditional
senior subordinated basis pursuant to the terms of the
Supplemental Indenture (the "Subsidiary Guaranties"; after
the consummation of the Merger, the Subsidiary Guaranties,
the Notes and the Parent Guaranty are collectively referred
to as the "Offered Securities").
If the Closing Date occurs prior to the consummation of
the Merger, the Issuer will, on the Closing Date, deposit
with State Street Bank and Trust Company of California, N.A.
(the "Escrow Agent") the gross proceeds of the offering of
the Offered Securities, together with an amount of cash or
treasury securities (the "Escrowed Funds") so that the
amount in escrow will be sufficient to pay the special
mandatory redemption price for the Offered Securities, when
and if due. In the event that the Merger and the other
Transactions are not consummated on or prior to the 75th day
after the closing of this offering or the Merger Agreement
is terminated at any time prior thereto, the Issuer will
redeem the Offered Securities at a redemption price equal to
100% of the aggregate principal amount of the Offered
Securities, plus accrued and unpaid interest to the date of
redemption. If the Merger and the other Transactions are
consummated on or prior to the 75th day after the closing of
this offering, the Escrowed Funds will be released to the
Issuer in connection with the closing of the Merger.
This Agreement (including the counterparts to be
executed concurrently with the consummation of the Merger),
the Indenture, the Supplemental Indenture, the Offered
Securities, the Exchange Securities (as defined in the
Registration Rights Agreement), the Registration Rights
Agreement (including the counterparts to be executed
concurrently with the consummation of the Merger) and the
Escrow Agreement are sometimes referred to in this Agreement
collectively as the "Operative Documents". All material
agreements and instruments relating to the Transactions
(including, but not limited to, the Merger Agreement and the
Credit Agreement), are sometimes referred to in this
Agreement collectively as the "Transaction Agreements". The
Operative Documents and the Transactions Agreements are
sometimes referred to in this Agreement collectively as the
"Transaction Documents". References in this Agreement to
the subsidiaries of the Company shall include all direct and
indirect subsidiaries of the Company after the consummation
of the Merger.
Capitalized terms used but not defined herein shall
have the meanings given to such terms in the Offering
Document (as defined below).
The Issuer and Holdings hereby agree with the Initial
Purchasers as follows:
2. Representations and Warranties of the Issuer. The
Issuer and Holdings represent and warrant to, and agree
with, the Initial Purchasers that:
(a) A preliminary offering circular dated
May 23, 2001 and an offering circular dated the date of
this Agreement relating to the Offered Securities to be
purchased by the Initial Purchasers have been prepared
by the Issuer. Such preliminary offering circular (the
"Preliminary Offering Circular") and offering circular
(the "Offering Circular") are hereinafter collectively
referred to as the "Offering Document". On the date of
this Agreement, the Offering Document does not include
any untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. The
preceding sentence does not apply to statements or
omissions from the Offering Document based upon written
information furnished to the Company by any Initial
Purchaser through CSFBC specifically for use therein,
it being understood and agreed that the only such
information is that described in Section 7(b) hereof.
(b) Each of the Issuer, Holdings and the Company
has been duly incorporated and is an existing
corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power
and authority to own its properties and conduct its
business as described in the Offering Document, and
each of the Issuer, Holdings and the Company is duly
qualified to do business as a foreign corporation in
good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its
business requires such qualification, except to the
extent that the failure to be so qualified or to be in
good standing would not have a material adverse effect
on the business, financial condition or results of
operation of the Company and its subsidiaries, taken as
a whole (a "Material Adverse Effect").
(c) Each subsidiary of the Company has been duly
incorporated and is an existing corporation, limited
liability company or limited partnership, as the case
may be, in good standing (if applicable) under the laws
of the jurisdiction of its incorporation or
organization, with corporate power and authority to own
its properties and conduct its business as described in
the Offering Document, and each subsidiary of the
Company is duly qualified to do business as a foreign
corporation, limited liability company or limited
partnership, as the case may be, in good standing (if
applicable) in all other jurisdictions in which its
ownership or lease of property or the conduct of its
business requires such qualification, except to the
extent that the failure to be so qualified or to be in
good standing would not have a Material Adverse Effect;
all of the issued and outstanding capital stock,
ownership interests, or partnership interests, as the
case may be, of each subsidiary of the Company has
been, and immediately following the Merger will be,
duly authorized and validly issued and, in the case of
capital stock, is fully paid and nonassessable; and
except as disclosed in the Offering Document and for
pledges in favor of Credit Suisse First Boston, New
York branch, as collateral agent under the Credit
Agreement, the capital stock, ownership interests, or
partnership interests, as the case may be, of the
Company and each subsidiary owned by the Company,
directly or through subsidiaries, will be owned free
from liens, encumbrances and defects immediately
following the Merger and the other Transactions.
(d) On the Closing Date, the Indenture will be
duly authorized by the Issuer and Holdings, and the
Supplemental Indenture will be duly authorized by the
Company and the Subsidiary Guarantors upon consummation
of the Merger; on the Closing Date, the Offered
Securities will be duly authorized by the Issuer and
Holdings, and the Subsidiary Guaranties will be duly
authorized by the Subsidiary Guarantors upon
consummation of the Merger; and when the Offered
Securities are delivered and paid for pursuant to this
Agreement and the Indenture on the Closing Date (as
defined below), assuming due authorization, execution
and delivery of the Indenture by the Trustee, the
Indenture will have been duly executed and delivered by
the Issuer and Holdings, such Offered Securities will
have been duly executed, authenticated, issued and
delivered by the Issuer and Holdings (assuming
authentication by the Trustee in accordance with the
provisions of the Indenture) and will conform in all
material respects to the description thereof contained
in the Offering Document and the Indenture and such
Offered Securities will constitute valid and legally
binding obligations of the Issuer and Holdings and,
upon execution of the Supplemental Indenture, the
Company and the Subsidiary Guarantors, enforceable in
accordance with their terms and entitled to the
benefits of the Indenture or the Supplemental
Indenture, as the case may be (assuming that the
Indenture and the Supplemental Indenture are valid and
legally binding obligations of the Trustee), subject to
(i) the effects of bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or similar laws of
general applicability relating to or affecting
creditors' rights, (ii) general principles of equity
(regardless of whether enforceability is considered in
a proceeding at law or in equity) and (iii) an implied
covenant of good faith and fair dealing.
(e) On the Closing Date, the Exchange Securities
will have been duly authorized by the Issuer and
Holdings, and upon consummation of the Merger, the
Exchange Securities will be duly authorized by the
Company and the Subsidiary Guarantors. When the
Exchange Securities are issued, executed and
authenticated in accordance with the terms of the
Exchange Offer and the Indenture, the Exchange
Securities (assuming authentication by the Trustee in
accordance with the provisions of the Indenture) will
be entitled to the benefits of the Indenture and will
be the valid and binding obligations of the Company,
Holdings and the Subsidiary Guarantors, enforceable
against the Company, Holdings and the Subsidiary
Guarantors in accordance with their terms (assuming
that the Indenture and the Supplemental Indenture are
valid and legally binding obligations of the Trustee),
subject to (i) the effects of bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or
similar laws of general applicability affecting
creditors' rights and (ii) general principles of equity
(regardless of whether enforceability is considered in
a proceeding at law or in equity).
(f) On the Closing Date, the Indenture will
conform in all material respects to the requirements of
the Trust Indenture Act of 1939, as amended (the "TIA"
or the "Trust Indenture Act"), and the rules and
regulations of the Securities and Exchange Commission
(the "Commission") applicable to an indenture which is
qualified thereunder.
(g) Except as disclosed in the Offering
Document, there are no contracts, agreements or
understandings between the Issuer, Holdings or the
Company and any person that would give rise to a valid
claim against the Issuer, Holdings, the Company or any
Initial Purchaser for a brokerage commission, finder's
fee or other like payment in connection with the
Offered Securities.
(h) No consent, approval, authorization, or
order of, or filing with, any governmental agency or
body or any court is required for the consummation of
the transactions contemplated by this Agreement, the
Registration Rights Agreement dated the date hereof,
between the Issuer, Holdings and the Initial Purchasers
(the "Registration Rights Agreement"), or any other
Transaction Document, in each case, in connection with
the consummation of the transactions contemplated
therein, except as may be required under the Securities
Act, the TIA and the rules and regulations of the
Commission thereunder with respect to the Exchange
Offer Registration Statement or the Shelf Registration
Statement (each as defined in the Registration Rights
Agreement) or the transactions contemplated by the
Registration Rights Agreement, or any state or foreign
securities laws or by the regulations of the National
Association of Securities Dealers, Inc.
(i) Assuming the accuracy of the representations
of the other parties thereto and the performance by
those parties of their agreements therein, the
execution, delivery and performance by each of the
Issuer, Holdings, the Company and the subsidiaries of
the Company (to the extent a party thereto) of each of
the Transaction Documents and their compliance with the
terms and provisions thereof and the consummation of
the Transactions will not result in a breach or
violation of any of the terms and provisions of, or
constitute a default under, (i) any statute, rule,
regulation or order of any governmental agency or body
or any court, domestic or foreign, that has
jurisdiction over the Issuer, Holdings, the Company, or
any of the Company's subsidiaries or any of their
properties, (ii) the Transaction Documents or any
agreement or instrument to which the Issuer, Holdings,
the Company or any of the Company's subsidiaries is a
party or by which the Issuer, Holdings, the Company or
any of the Company's subsidiaries is bound or to which
any of the properties of the Issuer, Holdings, the
Company or the Company's subsidiaries is subject or
(iii) the charter, by-laws or similar governing
documents of the Issuer, Holdings, the Company or any
of the Company's subsidiaries, except, with respect to
clauses (i) and (ii), where such breach, violation or
default would not have a Material Adverse Effect or
would not have a material adverse effect on the
business, financial condition or results of operation
of the Issuer or Holdings or the Company or its
subsidiaries, taken as a whole; the Issuer has full
corporate power and authority to authorize, issue and
sell the Notes as contemplated by this Agreement.
(j) None of the Issuer, Holdings, the Company or
any of the subsidiaries of the Company is in breach or
violation of any of the terms and provisions of, or in
default under, (i) any statute, rule, regulation or
order of any governmental agency or body or any court,
domestic or foreign, that has jurisdiction over the
Issuer, Holdings, the Company, or any of the Company's
subsidiaries or any of their properties, (ii) any
agreement or instrument to which the Issuer, Holdings,
the Company or any of the Company's subsidiaries is a
party or by which the Issuer, Holdings, the Company or
any of the Company's subsidiaries is bound or to which
any of the properties of the Issuer, Holdings, the
Company or the Company's subsidiaries is subject or
(iii) the charter, by-laws or similar governing
document of the Issuer, Holdings, the Company or any of
the Company's subsidiaries, except with respect to
clauses (i) and (ii) for any breaches, violations or
defaults that would not have a Material Adverse Effect
or would not have a material adverse effect on the
business, financial condition or results of operation
of the Issuer or Holdings or the Company or its
subsidiaries, taken as a whole.
(k) This Agreement has been duly authorized,
executed and delivered by the Issuer and Holdings.
Each of the other Operative Documents has been, or as
of the Closing Date will have been, duly authorized,
executed and delivered by the Issuer and Holdings (to
the extent a party thereto), and immediately upon
consummation of the Merger will be duly authorized,
executed and delivered by each of Holdings, the Company
and the Subsidiary Guarantors (to the extent a party
thereto). All of the Transaction Agreements have been
or will be as of or on the Merger closing date, duly
authorized, executed and delivered by each of Holdings,
the Company and the Company's subsidiaries (to the
extent a party thereto). Each Transaction Document
conforms or will conform in all material respects to
the descriptions thereof contained in the Offering
Document and each Operative Document (other than this
Agreement) is or will constitute valid and legally
binding obligations of the Issuer and Holdings (to the
extent a party thereto) and each Transaction Agreement
constitutes or will constitute valid and legally
binding obligations of Holdings, the Company and each
Subsidiary Guarantor (to the extent a party thereto),
enforceable in accordance with its respective terms,
except that any rights to indemnity and contribution
may be limited by federal and state securities laws and
public policy considerations and subject to
(i) bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors'
rights, (ii) general principles of equity (regardless
of whether enforceability is considered in a proceeding
at law or in equity) and (iii) an implied covenant of
good faith and fair dealing.
(l) Except as disclosed in the Offering
Document, the Company and its subsidiaries have, or
following consummation of the Merger will have, good
and marketable title to all real properties and all
other properties and assets owned by them that are
material to the Company and its subsidiaries taken as a
whole, in each case free from liens, encumbrances and
defects that would materially affect the value thereof
or materially interfere with the use made or proposed
to be made thereof by them; and except as disclosed in
the Offering Document, the Company and its subsidiaries
hold any leased real or personal property that is
material to the Company and its subsidiaries taken as a
whole under valid and enforceable leases with no
exceptions that would materially interfere with the use
made or proposed to be made thereof by them.
(m) The Company and its subsidiaries possess
adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary
to conduct the business now operated by them and have
not received any notice of proceedings relating to the
revocation or modification of any such certificate,
authority or permit that, if determined adversely to
the Company or any of its subsidiaries, would
individually or in the aggregate have a Material
Adverse Effect.
(n) No labor dispute with the employees of the
Company or any subsidiary exists or, to the knowledge
of the Issuer or Holdings, is imminent that would
reasonably be expected to have a Material Adverse
Effect.
(o) The Company and its subsidiaries own,
possess or can acquire on reasonable terms, adequate
trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information
and other intellectual property (collectively,
"intellectual property rights") necessary to conduct
the business now operated by them, or presently
employed by them, and have not received any notice of
infringement of or conflict with asserted rights of
others with respect to any intellectual property rights
that, if determined adversely to the Company or any of
its subsidiaries, would individually or in the
aggregate have a Material Adverse Effect.
(p) Except as disclosed in the Offering Document,
neither the Company nor any of its subsidiaries is in
violation of any statute, rule, regulation, decision or
order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or
release of hazardous or toxic substances or relating to
the protection or restoration of the environment or
human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that
is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating
to any environmental laws, which violation,
contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and
neither the Issuer nor Holdings is aware of any pending
investigation which might lead to such a claim.
(q) Except as disclosed in the Offering Document,
there are no pending actions, suits or proceedings
against or affecting the Issuer, Holdings or the
Company, any of the Company's subsidiaries or any of
their respective properties that (i) if determined
adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a Material
Adverse Effect, (ii) would materially and adversely
affect the ability of the Issuer, Holdings or the
Company to perform its obligations under the
Transaction Documents or (iii) are otherwise material
in the context of the sale of the Offered Securities;
and no such actions, suits or proceedings are, to the
knowledge of the Issuer or Holdings, threatened or
contemplated.
(r) The historical financial statements included
in the Offering Document present fairly the financial
position of the Company and its consolidated
subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and
such financial statements have been prepared in
conformity with the generally accepted accounting
principles in the United States applied on a consistent
basis and the assumptions used in preparing the pro
forma financial statements included in the Offering
Document provide a reasonable basis for presenting the
significant effects directly attributable to the
transactions or events described therein, the related
pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect
the proper application of those adjustments to the
corresponding historical financial statement amounts.
(s) To our knowledge, no "nationally recognized
statistical rating organization" as such term is
defined for purposes of Rule 436(g)(2) under the
Securities Act (i) has imposed (or has informed the
Issuer, Holdings, the Company or any of the Subsidiary
Guarantors that it is considering imposing) any
condition (financial or otherwise) on the Issuer's,
Holding's, the Company's or any Subsidiary Guarantor's
retaining any rating assigned to the Issuer, Holdings,
the Company or any Subsidiary Guarantor, any securities
of the Issuer, Holdings, the Company or any Subsidiary
Guarantor or (ii) has indicated to the Issuer,
Holdings, the Company or any Subsidiary Guarantor that
it is considering (a) the downgrading, suspension, or
withdrawal of, or any review for a possible change that
does not indicate the direction of the possible change
in, any rating so assigned or (b) any change in the
outlook for any rating of the Issuer, Holdings, the
Company, any Subsidiary Guarantor or any securities of
the Issuer, Holdings, the Company or any Subsidiary
Guarantor.
(t) Except as disclosed in the Offering Document,
since the date of the latest audited financial
statements of the Company included in the Offering
Document, there has been no material adverse change,
nor any development or event involving a prospective
material adverse change, in the financial condition,
business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and,
except as disclosed in or contemplated by the Offering
Document, there has been no dividend or distribution of
any kind declared, paid or made by the Company on any
class of its capital stock.
(u) None of the Issuer, Holdings, the Company or
any Subsidiary Guarantor is, and following the
consummation of the Merger none of them will be, an
open-end investment company, unit investment trust or
face-amount certificate company that is or is required
to be registered under Section 8 of the Investment
Company Act of 1940 (the "Investment Company Act"); and
none of the Issuer, Holdings, the Company or any
Subsidiary Guarantor is and, after giving effect to the
offering and sale of the Offered Securities, the
Merger, the other Transactions and the application of
the proceeds thereof as described in the Offering
Document, none of them will be an "investment company"
as defined in the Investment Company Act.
(v) No securities of the same class (within the
meaning of Rule 144A(d)(3) under the Securities Act) as
the Offered Securities are listed on any national
securities exchange registered under Section 6 of the
Securities Exchange Act of 1934 ("Exchange Act") or
quoted in a U.S. automated inter-dealer quotation
system.
(w) Assuming the accuracy of the representations
and the performance of the Initial Purchasers of their
agreements contained herein, the offer and sale of the
Offered Securities in the manner contemplated by this
Agreement will be exempt from the registration
requirements of the Securities Act by reason of
Section 4(2) thereof and Regulation S thereunder.
(x) None of the Issuer, Holdings, the Company,
nor any of their respective affiliates, nor any person
acting on its or their behalf (i) has, within the
six-month period prior to the date hereof, offered or
sold in the United States or to any U.S. person (as
such terms are defined in Regulation S under the
Securities Act) the Offered Securities or any security
of the same class or series as the Offered Securities
or (ii) has offered or will offer or sell the Offered
Securities (A) in the United States by means of any
form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities
Act or (B) with respect to any such securities sold in
reliance on Rule 903 of Regulation S ("Regulation S")
under the Securities Act, by means of any directed
selling efforts within the meaning of Rule 902(c) of
Regulation S. The Issuer, Holdings, the Company, their
affiliates and any person acting on its or their behalf
have complied and will comply with the offering
restrictions requirement of Regulation S. None of the
Issuer, Holdings, the Company or any of the Company's
subsidiaries has entered or will enter into any
contractual arrangement with respect to the
distribution of the Offered Securities except for this
Agreement.
(y) Each of the Preliminary Offering Circular and
the Offering Circular, as of its date, contains all the
information specified in, and meeting the requirements
of, Rule 144A(d)(4) under the Securities Act.
3. Purchase, Sale and Delivery of Offered
Securities. On the basis of the representations,
warranties and agreements herein contained, but subject
to the terms and conditions herein set forth, the Issuer
agrees to sell to the Initial Purchasers, and the Initial
Purchasers agree to purchase from the Issuer, at a purchase
price of 95.57% of the principal amount thereof plus accrued
interest, if any, from June 7, 2001 to the Closing Date (as
hereinafter defined) $229,000,000 in aggregate principal
amount of Notes.
The Issuer will deliver against payment of the purchase
price the Offered Securities in the form of one or more
permanent global securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The
Depository Trust Company ("DTC") and registered in the name
of Cede & Co., as nominee for DTC. Interests in any
permanent Global Securities will be held only in book-entry
form through DTC, except in the limited circumstances
described in the Offering Document. Payment for the Offered
Securities shall be made by the Initial Purchasers in
Federal (same day) funds by official check or checks or wire
transfer to an account at a bank acceptable to CSFBC drawn
to the order of XXXX XX Corp. at the office of Cravath,
Swaine & Xxxxx at 9:00 A.M. (New York time), on June 7,
2001, or at such other time not later than seven full
business days thereafter as CSFBC and the Issuer determine,
such time being herein referred to as the "Closing Date",
against delivery to the Trustee as custodian for DTC of
the Global Securities representing all of the Offered
Securities. The Global Securities will be made available
for checking at the office of Cravath, Swaine & Xxxxx at
least 24 hours prior to the Closing Date.
4. Representations by Initial Purchasers; Resale by
Initial Purchasers.
(a) Each of the Initial Purchasers and its
selling affiliates represents and warrants to the
Issuer, Holdings, the Company and each Subsidiary
Guarantor that it is an "accredited investor" within
the meaning of Regulation D under the Securities Act.
(b) Each Initial Purchaser severally acknowledges
that the Offered Securities have not been registered
under the Securities Act and may not be offered or sold
within the United States or to, or for the account or
benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each
Initial Purchaser represents and agrees that it has
offered and sold the Offered Securities, and will offer
and sell the Offered Securities, only in accordance
with Rule 903 or Rule 144A under the Securities Act
("Rule 144A"). Accordingly, none of the Initial
Purchasers or their affiliates, or any persons acting
on their behalf, has engaged or will engage in any
directed selling efforts with respect to the Offered
Securities, and the Initial Purchasers, their
affiliates and all persons acting on their behalf have
complied and will comply with the offering restrictions
requirement of Regulation S and Rule 144A.
(c) Each Initial Purchaser agrees that it and
each of its affiliates has not entered and will not
enter into any contractual arrangement with respect to
the distribution of the Offered Securities except with
the prior written consent of the Issuer.
(d) Each Initial Purchaser agrees that it and
each of its affiliates will not offer or sell the
Offered Securities in the United States by means of any
form of general solicitation or general advertising
within the meaning of Rule 502(c) under the Securities
Act, including, but not limited to (i) any
advertisement, article, notice or other communication
published in any newspaper, magazine or similar media
or broadcast over television or radio, or (ii) any
seminar or meeting whose attendees have been invited by
any general solicitation or general advertising. Each
Initial Purchaser agrees, with respect to resales made
in reliance on Rule 144A of any of the Offered
Securities, to deliver either with the confirmation of
such resale or otherwise prior to settlement of such
resale a notice to the effect that the resale of such
Offered Securities has been made in reliance upon the
exemption from the registration requirements of the
Securities Act provided by Rule 144A.
(e) Each Initial Purchaser represents and agrees
that (i) it has not offered or sold and prior to the
date six months after the date of issue of the Offered
Securities will not offer or sell any Offered
Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to
the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995;
(ii) it has complied and will comply with all
applicable provisions of the Financial Services Xxx
0000 with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving
the United Kingdom; and (iii) it has only issued or
passed on and will only issue or pass on in the United
Kingdom any document received by it in connection with
the issue of the Offered Securities to a person who is
of a kind described in Article 11(3) of the Financial
Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1996 or is a person to whom such
document may otherwise lawfully be issued or passed on.
(f) Each Initial Purchaser agrees that it will
not offer, sell or deliver any of the Offered
Securities in any jurisdiction outside of the United
States except under circumstances that will result in
compliance with the applicable laws thereof.
5. Certain Agreements of the Issuer and Holdings. The
Issuer and Holdings agree with the Initial Purchasers that:
(a) The Issuer will advise CSFBC promptly of any
proposal to amend or supplement the Offering Document
and will not effect such amendment or supplementation
without CSFBC's consent, which consent shall not be
unreasonably withheld or delayed. If, at any time prior
to the completion of the resale of the Offered
Securities by any Initial Purchaser, any event occurs
as a result of which the Offering Document as then
amended or supplemented would include an untrue
statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, the Issuer promptly
will notify CSFBC of such event and promptly will
prepare, at its own expense, an amendment or supplement
which will correct such statement or omission. Neither
the CSFBC'S consent to, nor its delivery to offerees or
investors of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth
in Section 6.
(b) The Issuer will furnish to the CSFBC copies
of any Offering Document and all amendments and
supplements to any such document, in each case as soon
as available and in such quantities as CSFBC reasonably
requests, and the Issuer will furnish to CSFBC on the
date hereof three copies of the Offering Circular
signed by a duly authorized officer of the Company, one
of which will include the independent accountants'
reports therein manually signed by such independent
accountants. At any time when the Issuer is not
subject to Section 13 or 15(d) of the Exchange Act,
the Issuer will promptly furnish or cause to be
furnished to CSFBC and, upon request of holders and
prospective purchasers of the Offered Securities, to
such holders and purchasers, copies of the additional
information required to be delivered to holders and
prospective purchasers of the Offered Securities
pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto) in order to permit
compliance with Rule 144A in connection with resales by
such holders of the Offered Securities (the "Additional
Issuer Information"). The Issuer will pay the expenses
of printing and distributing to the Initial Purchasers
all such documents.
(c) The Issuer will arrange for the qualification
of the Offered Securities for sale and the determination
of their eligibility for investment under the laws of
such jurisdictions in the United States and Canada as
CSFBC designates and will continue such qualifications
in effect so long as required for the resale of the
Offered Securities by the Initial Purchasers; provided,
however, that the Issuer will not be required to qualify
as a foreign corporation or to file a general consent
to service of process or to subject itself to taxation
in respect of doing business in any such state or
province where it is not then required to be so qualified
or subject to taxation.
(d) During the period of three years hereafter,
the Issuer or the Company will furnish to CSFBC, and
upon request, to each of the other Initial Purchasers,
as soon as practicable after the end of each fiscal
year, a copy of its annual report to shareholders for
such year; and the Issuer or the Company will furnish
to the CSFBC, and upon request, to each of the other
Initial Purchasers as soon as available, a copy of each
report and any definitive proxy statement of it filed
with the Commission under the Exchange Act or mailed to
holders of Offered Securities or of any securities of
the Issuer or the Company which have been registered
under Section 12 of the Exchange Act.
(e) During the period of two years after the
Closing Date, the Issuer will, upon request, furnish
to CSFBC, and upon request, furnish to any holder of
Offered Securities, a copy of the restrictions on
transfer applicable to the Offered Securities.
(f) During the period of two years after the
Closing Date, none of the Issuer, Holdings, the Company
or any of the Subsidiary Guarantors will, and none of
them will permit any of their affiliates (as defined in
Rule 144 under the Securities Act) to, resell any of
the Offered Securities that have been reacquired by any
of them.
(g) During the period of two years after the
Closing Date, none of the Issuer, Holdings, the Company
or any of the Subsidiary Guarantors will become, an
open-end investment company, unit investment trust or
face-amount certificate company that is or is required
to be registered under Section 8 of the Investment
Company Act.
(h) The Issuer or Holdings will pay all expenses
incidental to the performance of the obligations of the
Issuer, Holdings, the Company and the Company's
subsidiaries under this Agreement (including the
counterparts to be executed concurrently with the
consummation of the Merger), the Indenture, the
Supplemental Indenture, the Registration Rights
Agreement (including the counterparts to be executed
concurrently with the consummation of the Merger) and
the other Transaction Documents, including (i) the fees
and expenses of counsel and accountant for the Issuer,
Holdings, the Company and the Subsidiary Guarantors and
of the Trustee and its professional advisers; (ii) all
expenses in connection with the execution, issue,
authentication, packaging and initial delivery of the
Offered Securities and, as applicable, the Exchange
Securities, and the printing of the Offering Document
and amendments and supplements thereto, and any other
document relating to the issuance, offer, sale and
delivery of the Offered Securities and as applicable,
the Exchange Securities; (iii) the cost of listing the
Offered Securities and qualifying the Offered
Securities for trading in The PortalSM Market
("PORTAL") and any expenses incidental thereto; (iv)
the cost of any advertising approved by the Issuer in
connection with the issue of the Offered Securities;
(v) for any expenses (including reasonable fees and
disbursements of counsel to the Initial Purchasers)
incurred in connection with qualification of the
Offered Securities or the Exchange Securities for sale
under the laws of such jurisdictions as CSFBC
designates and the printing of memoranda relating
thereto (such expenses not to exceed $15,000); (vi) for
any fees charged by investment rating agencies for the
rating of the Offered Securities or the Exchange
Securities; and (vii) for expenses incurred in printing
and distributing any Offering Document (including any
amendments and supplements thereto) to or at the
direction of the Initial Purchasers. Each party will
pay its own expenses in connection with attending or
hosting meetings with prospective purchasers of the
Offered Securities from the Initial Purchasers,
including the costs attributable to the use of a
private airplane to attend such meetings to the extent
one is so used.
(i) In connection with the offering, until CSFBC
shall have notified the Issuer of the completion of the
resale of the Offered Securities, none of the Issuer,
Holdings, the Company, any of the Subsidiary Guarantors
or any of their respective affiliates has or will,
either alone or with one or more other persons, bid for
or purchase for any account in which it or any of its
affiliates has a beneficial interest any Offered
Securities or attempt to induce any person to purchase
any Offered Securities; and none of them nor any of
their affiliates will make bids or purchases for the
purpose of creating actual, or apparent, active trading
in, or of raising the price of, the Offered Securities.
(j) For a period of 120 days after the date of
the initial offering of the Offered Securities by the
Initial Purchasers, except as described in the section
entitled "The Transactions" in the Offering Document,
none of the Issuer, Holdings, the Company or any of the
Company's subsidiaries will offer, sell, contract to
sell, pledge or otherwise dispose of, directly or
indirectly, any United States dollar-denominated debt
securities issued or guaranteed by any of the Issuer,
Holdings, the Company or any of the Company's
subsidiaries and having a maturity of more than one
year from the date of issue. The Issuer, Holdings, the
Company or any of the Company's subsidiaries will not
at any time offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any
securities under circumstances where such offer, sale,
pledge, contract or disposition would cause the
exemption afforded by Section 4(2) of the Securities
Act or the safe harbor of Regulation S thereunder to
cease to be applicable to the offer and sale of the
Offered Securities.
(k) On the Closing Date, the Issuer will deposit
the Escrowed Funds with the Escrow Agent.
(l) The Issuer, Holdings and the Company will
use the net proceeds from the sale of the Offered
Securities in substantially the manner described in the
Offering Document under the caption "Use of Proceeds".
(m) None of the Issuer, Holdings, the Company,
or any of the Company's subsidiaries will sell, offer
for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in
the Securities Act) that would be integrated with the
sale of the Offered Securities in a manner that would
require the registration under the Securities Act of
the sale to the Initial Purchasers of the Offered
Securities or to take any other action that would
result in the resale of the Offered Securities not
being exempt from registration under the Securities
Act.
(n) None of the Issuer, Holdings, the Company
or any of its subsidiaries, will take, directly or
indirectly, any action designed to, or that might
reasonably be expected to, cause or result in
stabilization or manipulation of the price of any
security of the Issuer to facilitate the resale of
the Offered Securities. Except as permitted by the
Securities Act, the Issuer will not distribute any (i)
preliminary offering memorandum or offering memorandum,
including without limitation, the Offering Document or
(ii) other offering material in connection with the
offering and sale of the Offered Securities.
(o) On the closing date of the Merger, the Issuer
and Holdings shall cause the Initial Purchasers to
receive one or more counterparts of this Agreement and
the Registration Rights Agreement in the form attached
as Exhibit A, which shall have been executed and
delivered by duly authorized officers of each of the
Company and the Subsidiary Guarantors.
(p) On the closing date of the Merger, the
Company shall deliver to the Initial Purchasers
Secretary's Certificates reasonably satisfactory to the
Initial Purchasers which shall include the following
documents with respect to the Company and each of the
Subsidiary Guarantors: (1) certificates of
incorporation, (2) by-laws, (3) resolutions and (4)
certificates of good standing and/or qualification to
do business as a foreign corporation in such
jurisdictions as the Initial Purchasers may reasonably
request.
(q) On the closing date of the Merger, the Issuer
and Holdings shall cause the Initial Purchasers to
receive an opinion, dated the date of such closing,
from Simpson, Thacher & Xxxxxxxx, counsel for the
Company and Holdings after the Merger, substantially in
the form of Exhibit D.
(r) On the closing date of the Merger, the Issuer
and Holdings shall cause the Initial Purchasers to
receive a copy of the opinions delivered in connection
with the consummation of the Credit Agreement, which
opinions shall expressly state that the Initial
Purchasers are justified in relying upon the opinions
therein.
6. Conditions of the Obligations of the Initial
Purchasers. The obligations of the Initial Purchasers to
purchase and pay for the Offered Securities will be subject
to the accuracy of the representations and warranties on the
part of the Issuer and Holdings herein, to the accuracy of
the statements of officers of the Issuer and the Company
made pursuant to the provisions hereof, to the performance
by the Issuer and Holdings of their obligations hereunder
and to the following additional conditions precedent:
(a) The Initial Purchasers shall have received a
letter, dated the date of this Agreement, of Xxxxxx
Xxxxxxxx LLP in a form satisfactory to the Initial
Purchasers in all respects.
(b) Subsequent to the execution and delivery of
this Agreement, there shall not have occurred (i) a
change in U.S. or international financial, political or
economic conditions or currency exchange rates or
exchange controls that would, in the reasonable
judgment of CSFBC, be likely to prejudice materially
the success of the proposed issue, sale or distribution
of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary
market, or (ii) (A) any change, or any development or
event involving a prospective change, in the financial
condition, business, properties or results of
operations of the Company or its subsidiaries which, in
the reasonable judgment of CSFBC, is material and
adverse and makes it impractical or inadvisable to
proceed with completion of the offering or the sale of
and payment for the Offered Securities; (B) any
downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical
rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public
announcement that any such organization has under
surveillance or review its rating of any debt
securities of the Company (other than an announcement
with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such
rating); (C) any suspension or limitation of trading in
securities generally on the New York Stock Exchange, or
any setting of minimum prices for trading on such
exchange, or any suspension of trading of any
securities of the Company on any exchange or in the
over-the-counter market; (D) any banking moratorium
declared by U.S. Federal or New York authorities; or
(E) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of
war by Congress or any other substantial national or
international calamity or emergency if, in the judgment
of CSFBC, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical
or inadvisable to proceed with completion of the
offering or sale of and payment for the Offered
Securities.
(c) There shall exist at and as of the Closing
Date no condition that would constitute a default (or
an event that with notice or lapse of time, or both,
would constitute a default) under any Transaction
Agreement as in effect or as in draft form at the
Closing Date.
(d) The Initial Purchasers shall have received an
opinion, dated the Closing Date, of Simpson, Thacher &
Xxxxxxxx, counsel to the Issuer, Holdings and the
Company, substantially in the form of Exhibit B.
(e) The Initial Purchasers shall have received an
opinion, dated the Closing Date, of Xxxxxx Xxxxxxxx,
Esq., Senior Vice President, Secretary and General
Counsel of the Company substantially in the form of
Exhibit C.
(f) The Initial Purchasers shall have received
from Cravath, Swaine & Xxxxx, counsel for the Initial
Purchasers, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Issuer
or the Company, the validity of the Offered Securities,
the Offering Circular, the exemption from registration
for the offer and sale of the Offered Securities by the
Issuer to the Initial Purchasers and the resales by the
Initial Purchasers as contemplated hereby and other
related matters as CSFBC may require, and the Issuer
and the Company shall have furnished to such counsel
such documents as they request for the purpose of
enabling them to pass upon such matters.
(g) The Initial Purchasers shall have received a
certificate, dated the Closing Date, of the Chief
Executive Officer, Chairman of the Americas or any Vice
President and a principal financial or accounting
officer of the Company in which such officers, to the
best of their knowledge after reasonable investigation,
shall state that the representations and warranties
made by the Issuer and Holdings with respect to the
Company in this Agreement are true and correct and
that, subsequent to the respective date of the most
recent financial statements in the Offering Document,
there has been no material adverse change, nor any
development or event involving a prospective material
adverse change, in the financial condition, business,
properties or results of operations of the Company and
its subsidiaries taken as a whole except as set forth
in or contemplated by the Offering Document or as
described in such certificate.
(h) The Initial Purchasers shall have received a
letter, dated the Closing Date, of Xxxxxx Xxxxxxxx LLP
which meets the requirements of subsection (a) of this
Section, except that the specified date referred to in
such subsection will be a date not more than three days
prior to the Closing Date for the purposes of this
subsection.
(i) The Issuer , Holdings and the Trustee shall
have entered into the Indenture and you shall have
received counterparts, conformed as executed, thereof.
(j) The Issuer and Holdings shall have entered
into the Registration Rights Agreement and you shall
have received counterparts, conformed as executed,
thereof.
(k) The Issuer and Holdings shall have entered
into an escrow agreement with the Escrow Agent and, on
the Closing Date, will deposit the Escrowed Funds with
the Escrow Agent.
(l) The Offered Securities shall have been
designated PORTAL securities in accordance with the
rules and regulations adopted by the NASD relating to
trading in the PORTAL market.
(m) On or prior to the Closing Date, the Issuer
shall have provided to each of the Initial Purchasers
and counsel to the Initial Purchasers copies of all
Transaction Documents executed and delivered on or
prior to such date (and, to the extent available,
drafts of Transaction Agreements to be executed on the
closing date of the Merger, if later), including but
not limited to legal opinions relating to the
Transactions.
CSFBC may waive compliance with any conditions to the
obligations of the Initial Purchasers hereunder.
7. Indemnification and Contribution. (a) Each of the
Issuer and Holdings will indemnify and hold harmless the
Initial Purchasers, their partners, directors and officers
and each person, if any, who controls such Initial Purchaser
within the meaning of Section 15 of the Securities Act,
against any losses, claims, damages or liabilities, joint or
several, to which the Initial Purchasers may become subject,
under the Securities Act or the Exchange Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon
any breach of any untrue statement or alleged untrue
statement of any material fact contained in the Offering
Document, or any amendment or supplement thereto, or any
related Preliminary Offering Circular, or arise out of or
are based upon the omission or alleged omission to state
therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, including any losses,
claims, damages or liabilities arising out of or based upon
the Issuers's failure to perform its obligations under
Section 5(a) of this Agreement, and will reimburse the
Initial Purchasers for any legal or other expenses
reasonably incurred by such Initial Purchasers in connection
with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred;
provided, however, that the Issuer and Holdings will not be
liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance
upon and in conformity with written information furnished
to the Issuer by any Initial Purchaser through CSFBC
specifically for use therein, it being understood and agreed
that the only such information consists of the information
described as such in subsection (b) below; and provided
further, however, that with respect to any untrue statement
or alleged untrue statement in or omission or alleged
omission from any Preliminary Offering Circular, the
indemnity agreement contained in this subsection (a) shall
not inure to the benefit of the Initial Purchaser that sold
the securities concerned (or any Person controlling such
Purchaser) to the person asserting any such losses, claims,
damages or liabilities, to the extent that such sale was an
initial resale by such Initial Purchaser and any such loss,
claim, damage or liability of such Initial Purchaser or such
Person controlling such Initial Purchaser results from the
fact that there was not sent or given to the person, at or
prior to the written confirmation of the sale of such
securities to such person, a copy of the Offering Circular,
if the Issuer or the Company had previously furnished copies
thereof to such Initial Purchaser on a timely basis and in a
sufficient quantity to enable such Initial Purchaser to
furnish copies of the Offering Circular to all the persons
to whom such Initial Purchaser sold the securities
concerned.
(b) The Initial Purchasers will indemnify and hold
harmless the Issuer, its directors and officers and each
person, if any, who controls the Issuer within the meaning
of Section 15 of the Securities Act, against any losses,
claims, damages or liabilities to which the Issuer may
become subject, under the Securities Act or the Exchange Act
or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Offering
Document or any amendment or supplement thereto or arise out
of or are based upon the omission or the alleged omission to
state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, in each case to the
extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written
information furnished to the Issuer or the Company by such
Initial Purchasers through CSFBC specifically for use
therein, and will reimburse any legal or other expenses
reasonably incurred by the Issuer in connection with
investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred, it being
understood and agreed that the only such information
furnished by the Initial Purchasers consists of (i) the
following information in the Offering Document: under the
caption "Plan of Distribution", the fifth, eighth and ninth
paragraphs, and the third sentence of the seventh paragraph;
provided, however, that the Initial Purchasers shall not be
liable for any losses, claims, damages or liabilities
arising out of or based upon the Issuer's failure to perform
its obligations under Section 5(a) of this Agreement.
(c) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any
action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party
of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any
liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case
any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from
the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying
party will not be liable to such indemnified party under
this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an
unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such
action and does not include a statement as to or an
admission of fault, culpability or failure to act by or on
behalf of any indemnified party.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then
each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is
appropriate to reflect the relative benefits received by
the Issuer and Holdings on the one hand and the Initial
Purchasers on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault
of the Issuer and Holdings on the one hand and the Initial
Purchasers on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable
considerations. The relative benefits received by the
Issuer and Holdings on the one hand and the Initial
Purchasers on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering
(before deducting expenses) received by the Issuer bear to
the total discounts and commissions received by the Initial
Purchasers from the Issuer under this Agreement. The
relative fault 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
Issuer and Holdings or the Initial Purchasers and the
parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (d)
shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection
with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), the Initial Purchasers
shall not be required to contribute any amount in excess of
the amount by which the total discounts and commissions
received by the Initial Purchasers exceeds the amount of any
damages which the Initial Purchasers have otherwise been
required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(e) The obligations of the Issuer and Holdings under
this Section shall be in addition to any liability which the
Issuer and Holdings may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any,
who controls such Initial Purchaser within the meaning of
the Securities Act or the Exchange Act; and the obligations
of the Initial Purchasers under this Section shall be in
addition to any liability which the Initial Purchasers may
otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Issuer
within the meaning of the Securities Act or the Exchange
Act.
8. Default of Initial Purchasers. If any Initial
Purchaser or Initial Purchasers default in their obligations
to purchase Offered Securities hereunder and the aggregate
principal amount of Offered Securities that such defaulting
Initial Purchaser or Initial Purchasers agreed but failed to
purchase does not exceed 10% of the total principal amount
of Offered Securities, CSFBC may make arrangements
satisfactory to the Issuer for the purchase of such Offered
Securities by other persons, including any of the Initial
Purchasers, but if no such arrangements are made by the
Closing Date, the non-defaulting Initial Purchasers shall be
obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities
that such defaulting Initial Purchasers agreed but failed to
purchase. If any Initial Purchaser or Initial Purchasers so
default and the aggregate principal amount of Offered
Securities with respect to which such default or defaults
occur exceeds 10% of the total principal amount of Offered
Securities and arrangements satisfactory to CSFBC and the
Issuer for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part
of any non-defaulting Initial Purchaser or the Issuer,
except as provided in Section 9. As used in this Agreement,
the term "Initial Purchaser" includes any person substituted
for an Initial Purchaser under this Section. Nothing herein
will relieve a defaulting Initial Purchaser from liability
for its default.
9. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the
Issuer and Holdings or any of their officers and of the
Initial Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless
of any investigation, or statement as to the results
thereof, made by or on behalf of the Initial Purchasers,
the Issuer, Holdings or any of their respective
representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the
Offered Securities. If for any reason the purchase of the
Offered Securities by the Initial Purchasers is not
consummated, the Issuer shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to
Section 5(h) and the respective obligations of the Issuer
and Holdings and the Initial Purchasers pursuant to
Section 7 shall remain in effect. If the purchase of the
Offered Securities by the Initial Purchasers is not
consummated for any reason other than solely because of the
occurrence of any event specified in clause (C), (D) or (E)
of Section 6(b)(ii), the Issuer and Holdings will reimburse
the Initial Purchasers for all out-of-pocket expenses
(including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the
Offered Securities; provided, however, that the Issuer and
Holdings will not reimburse the defaulting Initial Purchaser
or Purchasers if the purchase is not consummated as a result
of the termination of this Agreement pursuant to Section 8.
10. Notices. All communications hereunder will be in
writing and, if sent to the Initial Purchasers will be
mailed, delivered or telegraphed and confirmed to the
Initial Purchasers at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000-0000, Attention: Investment Banking Department -
Transactions Advisory Group, or, if sent to the Issuer, will
be mailed, delivered or telegraphed and confirmed to it at
XXXX XX Corp., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx.
11. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the controlling persons referred
to in Section 7, and no other person will have any right or
obligation hereunder, except that holders of Offered
Securities shall be entitled to enforce the agreements for
their benefit contained in the second and third sentences of
Section 5(b) hereof against the Issuer as if such holders
were parties thereto.
12. Representation of Initial Purchasers. CSFBC will
act for the several Initial Purchasers in connection with
this purchase, and any action under this Agreement taken by
CSFBC will be binding upon all the Initial Purchasers.
13. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to
be an original, but all such counterparts shall together
constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State
of New York.
The Issuer and Holdings hereby submit to the
non-exclusive jurisdiction of the Federal and state courts
in the Borough of Manhattan in The City of New York in any
suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Initial
Purchasers' understanding of our agreement, kindly sign and
return to us one of the counterparts hereof, whereupon it
will become a binding agreement between the Issuer, Holdings
and the Initial Purchasers in accordance with its terms.
Very truly yours,
XXXX XX Corp.
By: /s/ Claus X. Xxxxxx
---------------------------
Name: Claus X. Xxxxxx
Title: President
CBRE Holding, Inc.
By: /s/ Claus X. Xxxxxx
---------------------------
Name: Claus X. Xxxxxx
Title: President
The foregoing Purchase Agreement
is hereby confirmed and accepted
as of the date first above written.
Credit Suisse First Boston Corporation
Acting on behalf of itself and as the Representative
of the several Initial Purchasers
By Credit Suisse First Boston Corporation
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title:
SCHEDULE A
Manager Principal Amount of
Offered Securities
Credit Suisse First Boston Corporation $179,522,000
Credit Lyonnais Securities (USA) Inc. $ 20,299,000
HSBC Securities (USA) Inc . $ 20,299,000
Scotia Capital (USA) Inc. $ 8,880,000
Total $229,000,000
EXHIBIT A
[TO BE SIGNED BY CB XXXXXXX XXXXX SERVICES]
Counterpart to the Purchase Agreement
The undersigned hereby agrees to assume and be bound
by all of the obligations of XXXX XX Corp., a Delaware
corporation (the "Issuer"), under the Purchase Agreement
dated May 31, 2001, among the Issuer, CBRE Holding, Inc. and
the Initial Purchasers (as defined therein).
Dated: CB XXXXXXX XXXXX SERVICES, INC.
By:
Name:
Title:
[TO BE SIGNED BY EACH SUBSIDIARY GUARANTOR]
Counterpart to the Purchase Agreement
The undersigned hereby agrees to be bound by all of the
obligations of CBRE Holding, Inc., a Delaware Corporation
("Holdings"), under the Purchase Agreement dated May 31,
2001, among XXXX XX Corp., a Delaware Corporation, Holdings
and the Initial Purchasers (as defined therein). For the
avoidance of doubt, such obligators shall include, but not
be limited to, the obligations enumerated in Section 7(a) of
the Purchase Agreement.
Dated:
Name of Company
By:
Name:
Title:
[TO BE SIGNED BY CB XXXXXXX XXXXX SERVICES
AND EACH SUBSIDIARY GUARANTOR]
Counterpart to Registration Rights Agreement
The undersigned hereby agrees to be bound by all of
obligations of the "Company" under the Registration Rights
Agreement, dated May 31, 2001, among XXXX XX Corp., a
Delaware corporation, CBRE Holding, Inc., a Delaware
corporation, and the Initial Purchasers (as defined
therein). For the avoidance of doubt, such obligations
shall include, but not be limited to, the obligations
enumerated in Section 5(a) and in Section 6 of the
Registration Rights Agreement.
Dated:
Name of Company
By:
Name:
Title:
EXHIBIT B
June____, 2001
Credit Suisse First Boston Corporation
Credit Lyonnais Securities (USA) Inc.
HSBC Securities (USA) Inc.
Scotia Capital (USA) Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to XXXX XX Corp.
(the "Issuer"), a Delaware corporation, and CBRE Holding,
Inc. ("Holdings"), a Delaware corporation and the parent
corporation of the Issuer, in connection with the purchase
by you of $229,000,000 aggregate principal amount of 11 1/4%
Senior Subordinated Notes due 2011 (the "Notes") of the
Issuer, unconditionally guaranteed on an unsecured, senior
subordinated basis by Holdings (such guaranty is referred to
herein as the "Parent Guaranty"), pursuant to the Purchase
Agreement, dated as of May 31, 2001 (the "Purchase
Agreement"), by and among the Issuer, Holdings and you, as
the initial purchasers (the "Initial Purchasers").
Pursuant to the terms and subject to the
conditions of the amended and restated agreement and plan of
merger, dated as of May 31, 2001, among XX Xxxxxxxx Xxxxx
Services, Inc. (the "Company"), a Delaware corporation,
Holdings and the Issuer, the Issuer is to be merged into the
Company as described therein.
We have examined the Offering Circular, dated as
of May 31, 2001 (the "Offering Circular"), relating to the
sale of the Notes; the Indenture, dated as of June 7, 2001
(the "Indenture"), by and among the Issuer, Holdings and
State Street Bank and Trust Company of California, N.A., as
trustee (the "Trustee"), relating to the Notes and the
Parent Guaranty; the global notes representing the Notes;
the Purchase Agreement; the Escrow Agreement, dated as of
June 7, 2001 (the "Escrow Agreement"), by and among the
Issuer, Holdings and State Street Bank and Trust Company
N.A., as escrow agent (the "Escrow Agent"); and the
Registration Rights Agreement, dated as of May 31, 2001 (the
"Registration Rights Agreement"), by and among the Issuer,
Holdings and you. In addition, we have examined, and have
relied as to matters of fact upon, the documents delivered
to you at the closing, and upon originals, or duplicates or
certified or conformed copies, of such corporate records,
agreements, documents and other instruments and such
certificates or comparable documents of public officials and
of officers and representatives of the Issuer, Holdings and
the Company, and have made such other investigations, as we
have deemed relevant and necessary in connection with the
opinions hereinafter set forth.
In such examination, we have assumed the
genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all
documents submitted to us as duplicates or certified or
conformed copies, and the authenticity of the originals of
such latter documents.
Based upon the foregoing, and subject to the
qualifications and limitations stated herein, we are of the
opinion that:
1. The Issuer and Holdings have been duly
incorporated and are validly existing and in good
standing as corporations under the laws of the State of
Delaware.
2. The Indenture has been duly authorized,
executed and delivered by the Issuer and Holdings and,
assuming that the Indenture is the valid and legally
binding obligation of the Trustee, constitutes valid
and legally binding obligations of the Issuer and
Holdings, respectively, enforceable against the Issuer
and Holdings in accordance with its terms.
3. The Notes have been duly authorized, executed
and issued by the Issuer and, assuming due
authentication thereof by the Trustee and upon payment
and delivery in accordance with the Purchase Agreement,
will constitute valid and binding obligations of the
Issuer enforceable against the Issuer in accordance
with their terms and entitled to the benefits of the
Indenture
.
4. The Exchange Securities (as defined in the
Registration Rights Agreement) have been duly
authorized by the Issuer and Holdings.
5. The Parent Guaranty has been duly authorized,
executed and issued by Holdings and, assuming due
authentication of the Notes by the Trustee and upon
payment for and delivery of the Notes in accordance
with the Purchase Agreement, will constitute valid and
legally binding obligation of Holdings enforceable
against Holdings in accordance with its terms and
entitled to the benefits of the Indenture.
6. The Registration Rights Agreement has been
duly authorized, executed and delivered by the Issuer
and Holdings and, assuming that the Registration Rights
Agreement is the valid and legally binding obligations
of the Initial Purchasers, constitutes valid and
legally binding obligations of the Issuer and Holdings,
respectively, enforceable against the Issuer and
Holdings in accordance with its terms.
7. The Escrow Agreement has been duly authorized
executed and delivered by the Issuer and Holdings and,
assuming that the Escrow Agreement is the valid and
legally binding obligation of the Escrow Agent,
constitutes valid and legally binding obligations of
the Issuer and Holdings, respectively, enforceable
against the Issuer and Holdings in accordance with its
terms.
8. The Purchase Agreement has been duly
authorized and executed by the Issuer and Holdings.
9. The statements made in the Offering Circular
under the caption "Description of the Notes" insofar as
they purport to constitute summaries of certain terms
of documents referred to therein, constitute accurate
summaries of the terms of such documents in all
material respects.
10. The statements made in the Offering Circular
under the caption "U.S. Federal Income Tax Consequences
to Non-U.S. Holders" insofar as they purport to
constitute summaries of matters of United States
federal tax law and regulations or legal conclusions
with respect thereto, constitute accurate summaries of
the matters described therein in all material respects.
11. The issue and sale of the Notes by the
Issuer, the issue of the Parent Guaranty by Holdings,
the compliance by the Issuer and Holdings with all of
the provisions of the Purchase Agreement and the
consummation of the Merger (as defined in the
Indenture) will not breach or result in a default under
any of the agreements or instruments identified on
Schedule I annexed hereto and furnished to us by the
Issuer and Holdings, nor will such action violate the
Certificate of Incorporation or By-laws of the Issuer
or Holdings or any federal or New York statute or the
Delaware General Corporation Law or any order known to
us issued pursuant to any federal or New York statute
or the Delaware General Corporation Law by any court or
governmental agency or body or court having
jurisdiction over the Issuer, Holdings or any of their
respective property.
12. No consent, approval, authorization, order,
registration or qualification of or with any federal or
New York governmental agency or body or any Delaware
governmental agency or body acting pursuant to the
Delaware General Corporation Law or, to our knowledge,
any federal or New York court or any Delaware court
acting pursuant to the Delaware General Corporation Law
is required for the issue and sale of the Notes by the
Issuer and the issue of the Parent Guaranty by Holdings
and the compliance by the Issuer and Holdings with all
of the provisions of the Purchase Agreement, except for
such consents, approvals, authorizations, registrations
or qualifications as may be required under state
securities or Blue Sky laws in connection with the
purchase and distribution of the Notes by the Initial
Purchasers.
13. To our knowledge, there are no pending or
threatened legal proceedings to which the Issuer or
Holdings is a party or otherwise subject that are
required to be described in the Offering Circular which
are not described as required.
14. No registration under the Securities Act of
1933, as amended (the "Securities Act"), of the Notes
or the Parent Guaranty and no qualification of the
Indenture under the Trust Indenture Act is required for
the offer and sale of the Notes by the Issuer to the
Initial Purchasers or the reoffer and resale of the
Notes by the Initial Purchasers to the initial
purchasers therefrom solely in the manner contemplated
in the Offering Circular, the Purchase Agreement and
the Indenture.
15. Following the issuance of the Notes and the
application of the proceeds therefrom, none of the
Issuer, Holdings or the Company will be an "investment
company" within the meaning of and subject to
regulation under the Investment Company Act of 1940,
as amended.
16. When the Notes are issued and delivered
pursuant to the Purchase Agreement, such Notes will not
be of the same class (within the meaning of Rule 144A
under the Securities Act) as securities of the Company
that are listed on a national securities exchange
registered under Section 6 of the Securities Exchange
Act of 1934, as amended, or that are quoted in a United
States automated inter-dealer quotation system.
Our opinions in paragraphs 2, 3, 5, 6 and 7 above
are subject to (i) the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other
similar laws relating to or affecting creditors' rights
generally, (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an
implied covenant of good faith and fair dealing. Our
opinion in paragraph 6 is further limited by considerations
of public policy.
We express no opinion as to the validity, legally
binding effect or enforceability of any provision of the
Registration Rights Agreement or any related provisions of
the Indenture, that requires or relates to payment of any
interest at a rate or in an amount which a court would
determine in the circumstances under applicable law to be
commercially unreasonable or a penalty or a forfeiture.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Offering Circular and take no responsibility
therefore, except as and to the extent set forth in
paragraphs 9 and 10 above. In the course of the preparation
by the Issuer, Holdings and the Company of the Offering
Circular, we participated in conferences with certain
officers and employees of the Issuer, Holdings and the
Company and with representatives of Xxxxxx Xxxxxxxx LLP,
independent accountants to the Issuer, Holdings and the
Company. Based upon our examination of the Offering
Circular, our investigations made in connection with the
preparation of the Offering Circular and our participation
in the conferences referred to above, we have no reason to
believe that the Offering Circular contains any untrue
statement of a material fact or omits to state any material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading, except that we express no belief with respect to
the financial statements or other financial or statistical
data contained in the Offering Circular.
We are members of the Bar of the State of New
York, and we do not express any opinion herein concerning
any law other than the law of the State of New York, the
federal law of the United States and the Delaware General
Corporation.
This opinion letter is rendered to you in
connection with the above-described transaction. This
opinion letter may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other
person, firm or corporation without our prior written
consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
EXHIBIT C
June ___, 2001
CREDIT SUISSE FIRST BOSTON CORPORATION
Credit Lyonnais Securities (USA) Inc.
HSBC Securities (USA) Inc.
Scotia Capital (USA) Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Reference is hereby made to the purchase by you of
$229,000,000 aggregate principal amount of 11 1/4% Senior
Subordinated Notes due 2011 (the "Notes") of XXXX XX Corp.
(the "Issuer"), a Delaware corporation, unconditionally
guaranteed on an unsecured, senior subordinated basis by
CBRE Holding, Inc. ("Holdings"), a Delaware corporation and
the parent corporation of the Issuer (such guaranty is
referred to herein as the "Parent Guaranty"), and to be
unconditionally guaranteed on an unsecured, senior
subordinated basis by the subsidiaries listed on Schedule I
hereto (such listed subsidiaries are referred to herein as
the "Subsidiary Guarantors") of CB Xxxxxxx Xxxxx Services,
Inc. (the "Company"), a Delaware corporation and the entity
into which the Issuer will merge (pursuant to the terms and
subject to the conditions of the amended and restated
agreement and plan of merger, dated as of May 31, 2001,
among the Company, Holdings and the Issuer), pursuant to the
Purchase Agreement, dated as of May 31, 2001 (the "Purchase
Agreement"), by and among the Issuer, Holdings and you, as
the initial purchasers (the "Initial Purchasers").
As the General Counsel of the Company, I have
examined the Offering Circular, dated as of May 31, 2001
(the "Offering Circular"), relating to the sale of the
Notes; the Indenture, dated as of June 7, 2001 (the
"Indenture"), by and among the Issuer, Holdings and State
Street Bank and Trust Company of California, N.A., as
trustee (the "Trustee"), relating to the Notes and the
Parent Guaranty; the global notes representing the Notes;
the Purchase Agreement; the Escrow Agreement, dated as of
June 7, 2001 (the "Escrow Agreement"), by and among the
Issuer, Holdings and State Street Bank and Trust Company
N.A., as escrow agent; and the Registration Rights
Agreement, dated as of May 31, 2001 (the "Registration
Rights Agreement"), by and among the Issuer, Holdings and
the Initial Purchasers. In addition I have examined, and
have relied as to matters of fact upon, the documents
delivered to you at the closing, and upon originals, or
duplicates or certified or conformed copies, of such
corporate records, agreements, documents and other
instruments and such certificates or comparable documents of
public officials and of officers and representatives of the
Company and the Subsidiary Guarantors, and have made such
other investigations, as I have deemed relevant and
necessary in connection with the opinions hereinafter set
forth.
In such examination, I have assumed the
genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to me
as originals, the conformity to original documents of all
documents submitted to me as duplicates or certified or
conformed copies, and the authenticity of the originals of
such latter documents.
Based upon the foregoing, and subject to the
qualifications and limitations stated herein, I am of the
opinion that:
1. Each of the Company and the Subsidiary
Guarantors is duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation, with corporate power
and authority to own its properties and conduct its
business as described in the Offering Circular; and
each of the Company and the Subsidiary Guarantors is
duly qualified to do business as a foreign corporation
in good standing in all jurisdictions in which its
ownership or leasing of properties or the conduct of
its business requires such qualification; except to the
extent that the failure to be so qualified or to be in
good standing would not have a material adverse effect
on the business, financial condition or results of
operation of the Company and its subsidiaries, taken as
a whole ("Material Adverse Effect").
2. Neither the Company nor, to my knowledge, any
of the Subsidiary Guarantors is in breach or violation
of any of the terms and provisions of, or in default
under, (i) any statute, rule or regulation, or any
order known to me of any governmental agency or body or
any court, domestic or foreign, that has jurisdiction
over the Company or any of its subsidiaries or any of
their properties, (ii) any agreement or instrument to
which the Company or any of the Subsidiary Guarantors
is a party or by which the Company or any of the
Subsidiary Guarantors is bound or to which any of the
properties of the Company or its subsidiaries is
subject or (iii) the charter, by-laws or similar
governing document of the Company or any of the
Subsidiary Guarantors, except for such breaches,
violations or defaults which would not result in a
Material Adverse Effect.
3. Except as disclosed in the Offering Circular,
there are no pending or threatened actions, suits or
proceedings against the Company or, to my knowledge,
any Subsidiary Guarantor or any of their respective
properties or assets that, if determined adversely to
the Company or any such Subsidiary Guarantor, would
individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely
affect the power or ability of the Company or any
Subsidiary Guarantor to consummate the Transactions (as
defined in the Purchase Agreement) or would materially
and adversely affect the ability of the Company to
assume the Issuer's obligations under the Purchase
Agreement, the Registration Rights Agreement, the Notes
or the Indenture or the Subsidiary Guarantors' ability
to guarantee the Notes or to execute the Supplemental
Indenture or the counterparts to the Purchase Agreement
or the Registration Rights Agreement.
4. Except as otherwise disclosed in the Offering
Circular, the consummation of the Transactions will not
result in a breach or violation of any of the terms and
provisions, of, or constitute a default under, any
statute, rule or regulation, or any order known to me
of any governmental agency or body or any court having
jurisdiction over the Company or, to my knowledge, any
Subsidiary Guarantor or any of the properties of the
Company or any of the properties of the Subsidiary
Guarantors known to me, or any agreement or instrument
which the Company or, to my knowledge, a Subsidiary
Guarantor is a party or by which the Company or, to my
knowledge, a Subsidiary Guarantor is bound or to which
any of the properties of the Company or, to my
knowledge, a Subsidiary Guarantor is subject, or the
charter or by-laws of the Company or any Subsidiary
Guarantor.
I have not independently verified the accuracy,
completeness or fairness of the statements made or included
in the Offering Circular and take no responsibility
therefor. Based upon my examination of the Offering
Circular, I have no reason to believe that the Offering
Circular contains any untrue statement of a material fact or
omits to state any material fact necessary in order to make
the statements therein, in the light of the circumstances
under which they were made, not misleading, except that I
shall express no belief with respect to the financial
statements or other financial or statistical data contained
in the Offering Circular.
I am a member of the Bar of the State of
California, and I do not express any opinion herein
concerning any law other than the law of the State of
California, the federal law of the United States, the
Delaware General Corporation law and the Delaware Limited
Liability Company Act.
This opinion letter is rendered to you in
connection with the above-described transaction. This
opinion letter may not be relied upon by you for any other
purpose, or relied upon by, or furnished to, any other
person, firm or corporation without my prior written
consent.
Very truly yours,
XXXXXX X. XXXXXXXX
EXHIBIT D
July ___, 2001
Credit Suisse First Boston Corporation
Credit Lyonnais Securities (USA) Inc.
HSBC Securities (USA) Inc.
Scotia Capital (USA) Inc.
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as special counsel to XXXX XX Corp. (the "Issuer"),
a Delaware Corporation, CBRE Holding, Inc. ("Holdings"), a
Delaware corporation and the parent corporation of the Issuer,
CB Xxxxxxx Xxxxx Services, Inc. (the "Company"), a Delaware
corporation, and the Subsidiary Guarantors (as defined below) in
connection with the purchase by you of $229,000,000 aggregate
principal amount of 11 1/4% Senior Subordinated Notes due 2011
(the "Notes") of the Issuer, unconditionally guaranteed on an
unsecured, senior subordinated basis by (i) Holdings and (ii) the
subsidiaries of the Company listed on Schedule I hereto (such
listed subsidiaries are referred to herein as the "Subsidiary
Guarantors"). Such guarantees of the Subsidiary Guarantors are
referred to herein as the "Subsidiary Guarantees." Pursuant to
the terms of the amended and restated plan of merger, dated as of
May 31, 2001, among the Company, Holdings and the Issuer, the
Issuer has been merged into the Company.
We have examined the Indenture, dated as of June 7,
2001 (the "Indenture"), by and among the Issuer, Holdings and
State Street Bank and Trust Company of California, N.A., as
trustee (the "Trustee"); the Supplemental Indenture, dated as of
July ___, 2001 (the "Supplemental Indenture"), by and among
Holdings, the Company, the Subsidiary Guarantors and the Trustee;
the global notes representing the Notes; the counterpart (the
"Purchase Agreement Counterpart") to the Purchase Agreement,
dated May 31, 2001, by and among the Issuer, Holdings and you,
as initial purchasers (the "Initial Purchasers"); and the
counterpart (the "Registration Rights Agreement Counterpart") to
the Registration Rights Agreement, dated May 31, 2001, by and
among the Issuer, Holdings and the Initial Purchasers. In
addition, we have examined, and have relied as to matters of
fact upon, the documents delivered to you at the closing, and
upon originals, or duplicates or certified or conformed copies,
of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of
public officials and of officers and representatives of the
Issuer, the Company, Holdings and the Subsidiary Guarantors, and
have made such other investigations, as we have deemed relevant
and necessary in connection with the opinions hereinafter set
forth.
In such examination, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to
us as duplicates or certified or conformed copies, and the
authenticity of the originals of such latter documents.
In rendering the opinions set forth in the enumerated
paragraphs below, we have assumed that (1) the Subsidiary
Guarantors that are not incorporated in, or organized or formed
under the laws of, the State of Delaware (such guarantors, the
"Non-Delaware Guarantors") are validly existing and in good
standing under the laws of the jurisdictions in which each of
them is organized and have duly authorized, executed and
delivered the Subsidiary Guarantees of the Non-Delaware
Guarantors in accordance with their respective charter documents
and by-laws (or, as the case may be, equivalent constitutive
documents) and the laws of the jurisdictions in which each of
them is organized, (2) execution, delivery and performance by the
Non-Delaware Guarantors of the Guarantees of the Non-Delaware
Guarantors do not violate the laws of the jurisdictions in which
each of them is incorporated, organized or formed and (3)
execution, delivery and performance by the Non-Delaware
Guarantors of the Guarantees of the Non-Delaware Guarantors do
not constitute a breach or violation of any agreement or
instrument that is binding upon the Non-Delaware Guarantors.
Based upon the foregoing, and subject to the
qualifications and limitations stated herein, we are of the
opinion that:
1. The Supplemental Indenture has been duly
authorized, executed and delivered by Holdings, the Company
and the Subsidiary Guarantors and, assuming that the
Supplemental Indenture is the valid and legally binding
obligation of the Trustee, the Supplemental Indenture
constitutes valid and legally binding obligations of
Holdings, the Company and the Subsidiary Guarantors,
respectively, enforceable against Holdings, the Company and
the Subsidiary Guarantors in accordance with its terms.
2. The Purchase Agreement Counterpart and the
Registration Rights Agreement Counterpart have been duly
authorized, executed and delivered by the Company.
3. The Purchase Agreement Counterpart and the
Registration Rights Agreement Counterpart have been duly
authorized, executed and delivered by the Subsidiary
Guarantors.
4. The Subsidiary Guarantees have been duly
authorized, executed and issued by the Subsidiary Guarantors
and, assuming due authentication of the Notes by the Trustee
and upon payment for and delivery of the Notes in accordance
with the Purchase Agreement, will constitute valid and
legally binding obligations of the Subsidiary Guarantors
enforceable against the Subsidiary Guarantors in accordance
with their terms and entitled to the benefit of the
Indenture.
5. The issue of the Subsidiary Guarantees by the
Subsidiary Guarantors and the compliance by the Company and
the Subsidiary Guarantors with all of the provisions of the
Supplemental Indenture will not breach or result in a
default under any of the agreements or instruments
identified on Schedule II annexed hereto furnished to us by
the Company, nor will such action violate the Certificate of
Incorporation or By-laws of the Company or any Subsidiary
Guarantor or any federal or New York statute or the Delaware
General Corporation Law or any order known to us issued
pursuant to any federal or New York statute or the Delaware
General Corporation Law by any court or governmental agency
or body or court having jurisdiction over the Company or any
Subsidiary Guarantor or any of their properties.
6. No consent, approval, authorization, order,
registration or qualification of or with any federal or New
York governmental agency or body or any Delaware
governmental agency or body acting pursuant to the Delaware
General Corporation Law or, to our knowledge, any federal or
New York court or any Delaware court acting pursuant to the
Delaware General Corporation Law is required for the issue
of the Subsidiary Guarantees by the Subsidiary Guarantors
and the compliance by the Subsidiary Guarantors with all of
the provisions of the Supplemental Indenture.
Our opinion in paragraphs 1 and 4 above is subject to
(i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, (ii) general equitable
principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair
dealing.
We express no opinion as to the validity, legally
binding effect or enforceability of any provision of the
Supplemental Indenture, or the Guarantees that requires or
relates to payment of any interest at a rate or in an amount
which a court would determine in the circumstances under
applicable law to be commercially unreasonable or a penalty or
a forfeiture.
We are members of the Bar of the State of New York,
and we do not express any opinion herein concerning any law
other than the law of the State of New York, the federal law
of the United States, the Delaware General Corporation law
and the Delaware Limited Liability Company Act.
This opinion letter is rendered to you in connection
with the above-described transaction. This opinion letter may
not be relied upon by you for any other purpose, or relied upon
by, or furnished to, any other person, firm or corporation without
our prior written consent.
Very truly yours,
XXXXXXX XXXXXXX & XXXXXXXX
