EXHIBIT 4.5
$65,000,000
CBRE Holding, Inc.
16% Senior Notes Due 2011
339,820 Shares of Class A Common Stock
PURCHASE AGREEMENT
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June 29, 2001
Credit Suisse First Boston Corporation
Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. CBRE Holding, Inc., a Delaware corporation (the
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"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to Credit Suisse First Boston Corporation ("CSFBC" or the
"Initial Purchaser") $65,000,000 aggregate principal amount of its 16% Senior
Notes Due 2011 (the "Notes") and 339,820 shares of Class A common stock (the
"Common Stock") of the Company, par value $0.01 per share (the "Shares" and
together with the Notes, the "Offered Securities"). The Notes are to be issued
pursuant to an indenture (the "Indenture") to be dated as of the Closing Date
(as defined below), between the Company 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), XXXX XX Corp. will merge with and into CB Xxxxxxx Xxxxx
Services, Inc., a Delaware corporation ("CBRESI"), with CBRESI as the surviving
corporation in such merger (the "Merger"). Concurrently with the consummation of
the Merger, (1) the Company will execute a Notes Registration Rights Agreement
(the "Notes Registration Rights Agreement"), a Securityholders' Agreement (the
"Securityholders Agreement"), and an Anti-Dilution Agreement (the "Anti-Dilution
Agreement") and (2) CBRESI 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.
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This Agreement, the Indenture, the Offered Securities, the Exchange
Securities (as defined in the Notes Registration Rights Agreement), the Notes
Registration Rights Agreement, the Securityholders Agreement and the Anti-
Dilution 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 Transaction
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 Company hereby agrees with the Initial Purchaser as follows:
2. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, the Initial Purchaser that:
(a) An offering circular dated the date of this Agreement
relating to the Offered Securities to be purchased by the Initial Purchaser
has been prepared by the Company. Such offering circular, as the same may
be supplemented prior to the closing of the offering is hereinafter
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 the Initial Purchaser specifically for use
therein, it being understood and agreed that the only such information is
that described in Section 7(b) hereof.
(b) 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 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").
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(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 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 have 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) The Indenture has been duly authorized by the Company; the
Notes have been duly authorized by the Company; and when the Notes 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 Company, such Notes will have been duly
executed, authenticated, issued and delivered by the Company (assuming
authentication by the Trustee in accordance with the provisions of the
Indenture) and the Indenture and such Notes will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms and entitled to the benefits of the Indenture (assuming that
the Indenture is a valid and legally binding obligation 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) The Exchange Securities have been duly authorized by the
Company. When the Exchange Securities are issued, executed and
authenticated in accordance with the terms of the Exchange Offer and the
Indenture, the Ex-
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change 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,
enforceable against the Company in accordance with their terms (assuming
that the Indenture is a valid and legally binding obligation 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, and (ii) general
principles of equity (regardless of whether enforceability is considered in
a proceeding at law or in equity).
(f) The Indenture conforms 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) The Shares have been duly reserved for issuance by the
Company, the issuance of the Shares has been duly authorized by the
Company, and the Shares, when delivered pursuant to the terms of this
Agreement, will be validly issued, fully paid and nonassessable, and except
as set forth in the Offering Document no holder of any securities of the
Company has any preemptive or other similar rights to subscribe for or to
purchase any common stock of the Company arising by operation of the
General Corporation Law of the State of Delaware, under the Certificate of
Incorporation or bylaws of the Company or pursuant to the terms of any
agreement or instrument to which the Company is a party.
(h) Except as disclosed in the Offering Document, there are no
contracts, agreements or understandings between the Company and any person
that would give rise to a valid claim against the Company or the Initial
Purchaser for a brokerage commission, finder's fee or other like payment in
connection with the Offered Securities.
(i) 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, the Anti-Dilution Agreement, the
Securityholders 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 Notes Registration Rights Agreement) or the
transactions contemplated by the Notes Registration Rights Agree-
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ment, the Anti-Dilution Agreement, the Securityholders Agreement or any
state or foreign securities laws or by the regulations of the National
Association of Securities Dealers, Inc.
(j) 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 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 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 Company or any of the Company's subsidiaries is a
party or by which the Company or any of the Company's subsidiaries is bound
or to which any of the properties of the Company or the Company's
subsidiaries is subject or (iii) the charter, by-laws or similar governing
documents of 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 Company's power or ability to consummate the
Transactions; the Company has full corporate power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
(k) None of 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 Company or any of the Company's subsidiaries or any
of their properties, (ii) any agreement or instrument to which the Company
or any of the Company's subsidiaries is a party or by which the Company or
any of the Company's subsidiaries is bound or to which any of the
properties of the Company or the Company's subsidiaries is subject or (iii)
the charter, by-laws or similar governing document of 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 Company's power
or ability to consummate the Transactions.
(l) This Agreement has been duly authorized, executed and
delivered by the Company. Each of the other Operative Documents has been,
or
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as of the Closing Date will have been, duly authorized, executed and
delivered by the Company. All of the Transaction Agreements have been, or
will be as of or on the Closing Date, duly authorized, executed and
delivered by each of the Company and the Company's subsidiaries (to the
extent a party thereto). Each Transaction Document conforms or, at the
Closing Date, 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 Company and each Transaction Agreement constitutes or
will, at the Closing Date, constitute valid and legally binding obligations
of the Company to the extent it is 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.
(m) Except as disclosed in the Offering Document, the Company and
its subsidiaries 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.
(n) 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.
(o) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
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(p) 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.
(q) 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
the Company is not aware of any pending investigation which might lead to
such a claim.
(r) Except as disclosed in the Offering Document, there are no
pending actions, suits or proceedings against or affecting 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 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 Company,
threatened or contemplated.
(s) 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
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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.
(t) 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 Company or
any of the Company's subsidiaries that it is considering imposing) any
condition (financial or otherwise) on the Company's or any of the Company's
subsidiaries retaining any rating assigned to the Company or any securities
of the Company or any of the Company's subsidiaries or (ii) has indicated
to the Company 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 Company or any of the Company's
subsidiaries or any securities of the Company or any of the Company's
subsidiaries.
(u) 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.
(v) The Company is not, and following the consummation of the
Merger, the Company will not 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 the Company is not and, after giving effect
to the offering and sale of the Offered Securities, the other Transactions
and the application of the proceeds thereof as described in the Offering
Document, will not be an "investment company" as defined in the Investment
Company Act.
(w) 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.
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(x) Assuming the accuracy of the representations and the
performance by the Initial Purchaser of its 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.
(y) None of the Company, nor any of its respective affiliates,
nor any person acting on its or their behalf has offered or will offer or
sell the Offered Securities by means of any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities
Act. None of the Company nor 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.
(z) The Offering Document, 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
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of the representations, warranties and agreements herein contained, but subject
to the terms and conditions set forth herein, the Company agrees to sell to the
Initial Purchaser, and the Initial Purchaser agrees to purchase from the
Company, all of the Offered Securities at a purchase price of $63,525,020 in the
aggregate.
The Company and the Initial Purchaser agree that the issue price of
the Offered Securities for U.S. Federal Income tax purposes is $916.35 per
$1,000 principal amount of Notes and $16.00 per Share.
The Company will deliver against payment of the purchase price the
Notes 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. The Company will deliver against payment of the purchase
price of the Shares, one or more certificates for the Shares in definitive form
in such denominations and registered in such names as the Initial Purchaser may
request in writing at least three full business days before the Closing Date.
Payment for the Offered Securities shall be made by the Initial Purchaser 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 CBRE Holding, Inc.
at the office of Xxxxxxx Xxxxxxx & Xxxxxxxx, Palo Alto, California at 12:00 P.M.
(California time), on July 20, 2001, or at such other time not later than seven
full business days thereafter as CSFBC and the Company determine, such time
being herein re-
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ferred 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 Xxxxxxx
Xxxxxxx & Xxxxxxxx, Palo Alto, Calfornia at least 24 hours prior to the Closing
Date.
4. Representations by Initial Purchaser; Resale by Initial Purchaser.
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(a) The Initial Purchaser represents and warrants to the Company
that it is an "accredited investor" within the meaning of Regulation D
under the Securities Act .
(b) The Initial Purchaser 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 pursuant to an exemption from the
registration requirements of the Securities Act. The Initial Purchaser
represents and agrees that it has offered and sold the Offered Securities,
and will offer and sell the Offered Securities, only (i) in accordance with
Rule 144A under the Securities Act ("Rule 144A") and (ii) to a limited
number of institutional investors reasonably believed by the Initial
Purchaser to be "Accredited Investors" (as defined in Rule 501(a)(1), (2),
(3) or (7) under Regulation D of the Securities Act), in private sales
exempt from registration under the Securities Act, in each case who have
executed or have agreed to execute the Securityholders Agreement.
Accordingly, none of the Initial Purchaser or its affiliates, or any person
acting on their behalf, has engaged or will engage in any directed selling
efforts with respect to the Offered Securities, and the Initial Purchaser,
its affiliates and all persons acting on their behalf have complied and
will comply with the offering restrictions requirement of Rule 144A.
(c) The 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 consent of the Company.
(d) The 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. The Initial Purchaser agrees, with respect to resales made in
reliance on Rule 144A of any of the Offered Securities, to deliver either
with the confir-
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mation 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) The Initial Purchaser agrees that it will not offer, sell or
deliver any of the Offered Securities in any jurisdiction outside of the
United States.
5. Certain Agreements of the Company. The Company agrees with the
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Initial Purchaser that:
(a) The Company 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 the 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 Company 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 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 Company will furnish to 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. Subject to the terms of the Securityholders Agreement with
respect to the Shares, at any time when the Company is not subject to
Section 13 or 15(d) of the Exchange Act, the Company 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 Company
Information"). The Company will pay the expenses of printing and
distributing to the Initial Purchaser all such documents.
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(c) The Company 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 as
CSFBC designates and will continue such qualifications in effect so long as
required for the resale of the Offered Securities by the Initial Purchaser;
provided, however, that the Company will not be required to qualify as a
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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 where it is not then required to be so qualified or subject to
taxation.
(d) During the period of three years hereafter, the Company will
furnish to CSFBC as soon as practicable after the end of each fiscal year,
a copy of its annual report to shareholders for such year; and the Company
will furnish to CSFBC, 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 Company which have been registered under Section 12 of
the Exchange Act.
(e) During the period of two years after the Closing Date, the
Company 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, the
Company will not and will not permit any of its 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, the
Company will not 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 Company will pay all expenses of the Company and its
subsidiaries incidental to the performance of the obligations of the
Company and the Company's subsidiaries under this Agreement, the Indenture,
the Registration Rights Agreement, the Anti-Dilution Agreement, the
Securityholders Agreement and the other Transaction Documents, including
(i) the fees and expenses of counsel and accountants for the Company, and
of the Trustee and its professional advisers; provided, however, that the
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Company shall not be responsible for the payment of fees and expenses of
Xxxxxx Xxxxxxxx LLP, to the extent attributable to the preparation and
delivery of a comfort letter to the Initial Purchaser; (ii) all ex-
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penses 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 Company in connection with the
issue of the Offered Securities; and (v) expenses incurred in printing and
distributing any Offering Document (including any amendments and
supplements thereto) to or at the direction of the Initial Purchaser. In
addition, the Company will pay the reasonable fees and expenses of Xxxxxx
Xxxxxx & Xxxxxxx, special counsel to the Initial Purchaser. Each party will
pay its own expenses in connection with attending or hosting meetings with
prospective purchasers of the Offered Securities from the Initial
Purchaser.
(i) In connection with the offering, until CSFBC shall have
notified the Company of the completion of the resale of the Offered
Securities, none of the Company or any of its 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 Purchaser, except as
described in the section entitled "The Transactions" in the Offering
Document, the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any United States dollar-
denominated debt securities issued or guaranteed by the Company and having
a maturity of more than one year from the date of issue. The Company 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 to cease to be applicable to
the offer and sale of the Offered Securities.
(k) 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".
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(l) None of the Company or any of its 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 Purchaser
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.
(m) None of 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 Company to facilitate the resale of the Offered
Securities. Except as permitted by the Securities Act, the Company 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.
(n) On the Closing Date, the Company shall deliver to the Initial
Purchaser Secretary's Certificates reasonably satisfactory to the Initial
Purchaser which shall include the following documents with respect to the
Company and each of the Company's U.S. subsidiaries: (1) certificates of
incorporation or formation, as applicable, (2) by-laws or other similar
governing documents, (3) resolutions and (4) certificates of good standing
and/or qualification to do business as a foreign corporation in such
jurisdictions as the Initial Purchaser may reasonably request.
(o) On the Closing Date, the Company shall cause the Initial
Purchaser 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 Purchaser is justified in relying upon the opinions
therein.
6. Conditions to the Obligations of the Initial Purchaser. The
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obligations of the Initial Purchaser to purchase and pay for the Offered
Securities will be subject to the accuracy of the representations and warranties
on the part of the Company herein, to the accuracy of the statements of officers
of the Company made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
(a) The Initial Purchaser shall have received a letter, dated the
date of this Agreement, of Xxxxxx Xxxxxxxx LLP in a form satisfactory to
the Initial Purchaser in all respects.
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(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 Purchaser shall have received an opinion and a
letter, each dated the Closing Date, of Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel
to the Company, substantially in the form of Exhibit A attached hereto. The
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Initial Purchaser shall have received an opinion, dated the Closing Date,
of Xxxxxx Xxxxxxxx, Esq., Senior Vice President, Secretary and General
Counsel of CBRESI, substantially in the form of Exhibit B attached hereto.
---------
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(e) The Initial Purchaser shall have received (i) a letter from
Xxxxxxx Xxxxxx & Xxxxx, counsel for the Initial Purchaser, dated the
Closing Date and in form and substance reasonably satisfactory to the
Initial Purchaser and (ii) an opinion and a letter from Xxxxxx Xxxxxx &
Xxxxxxx, special counsel for the Initial Purchaser, each dated the Closing
Date, as to the validity of the Securities and in form and substance
reasonably satisfactory to the Initial Purchaser.
(f) The Initial Purchaser shall have received a certificate,
dated the Closing Date, of the Chief Executive Officer 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 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.
(g) The Initial Purchaser 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.
(h) Substantially concurrent with the closing in respect of the
Offered Securities, the Merger shall be consummated and the proceeds from
the sale of the XXXX XX Corp. 11 1/4% Senior Subordinated Notes due June
15, 2011 shall be released from escrow.
(i) The Company and the Trustee shall have entered into the
Indenture and you shall have received counterparts, conformed as executed,
thereof.
(j) The Company shall have entered into the Notes Registration
Rights Agreement and you shall have received counterparts, conformed as
executed, thereof.
(k) The Company shall have entered into the Anti-Dilution
Agreement and you shall have received counterparts, conformed as executed,
thereof.
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(l) The Company shall have entered into the Securityholders
Agreement and you shall have received counterparts, conformed as executed,
thereof.
(m) The Notes shall have been designated PORTAL securities in
accordance with the rules and regulations adopted by the NASD relating to
trading in the PORTAL market.
(n) On or prior to the Closing Date, the Company shall have
provided to the Initial Purchaser and counsel to the Initial Purchaser
copies of all Transaction Documents executed and delivered on or prior to
such date, including but not limited to legal opinions relating to the
Transactions.
(o) On or prior to the Closing Date, the Company shall have paid
in full all fees and expenses owing pursuant to the Commitment Letter dated
February 23, 2001, as amended through the Closing Date, between DLJ
Investment Funding II, L.P. and CBRE Holding, Inc.
7. Indemnification and Contribution.
--------------------------------
(a) The Company will indemnify and hold harmless the Initial
Purchaser, its partners, directors and officers and each person, if any,
who controls the 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 Purchaser 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 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 Company's failure
to perform its obligations under Section 5(a) of this Agreement, and will
reimburse the Initial Purchaser for any legal or other expenses reasonably
incurred by the Initial Purchaser in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company will not be
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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 Company by the Initial Purchaser 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.
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(b) The Initial Purchaser will indemnify and hold harmless the
Company, its directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act, against
any losses, claims, damages or liabilities to which the Company 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 Company by CSFBC specifically for
use therein, and will reimburse any legal or other expenses reasonably
incurred by the Company 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 Purchaser consists of (i) the following
information in the Offering Document: under the caption "Plan of
Distribution", the seventh, eighth, ninth, tenth and eleventh paragraphs,
and the fourth sentence of the sixth paragraph; provided, however, that the
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Initial Purchaser shall not be liable for any losses, claims, damages or
liabilities arising out of or based upon the Company'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
-19-
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 Company on the one hand and the Initial Purchaser
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
Company on the one hand and the Initial Purchaser 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 Company on the one
hand and the Initial Purchaser 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 Company bear to the total discounts and
commissions received by the Initial Purchaser from the Company 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 Company or the Initial Purchaser 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
Purchaser shall not be required to contribute any amount in excess of the
amount by which the total discounts and commissions received by the Initial
Purchaser exceeds the amount of any damages which the Initial Purchaser
would 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 Company under this Section shall be in
addition to any liability which the Company 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
-20-
of the Initial Purchaser under this Section shall be in addition to any
liability which the Initial Purchaser may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act.
8. Survival of Certain Representations and Obligations. The
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respective indemnities, agreements, representations, warranties and other
statements of the Company or any of its officers and of the Initial Purchaser
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 Purchaser, the Company or any of its
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 Purchaser is not
consummated, the Company and the Initial Purchaser shall remain responsible for
their respective expenses to be paid or reimbursed by them pursuant to Section
5(h), except that the Company shall not be responsible for the fees and expenses
of counsel to the Initial Purchaser, and the respective obligations of the
Company and the Initial Purchaser pursuant to Section 7 shall remain in effect.
9. Notices. All communications hereunder will be in writing and, if
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sent to the Initial Purchaser, will be mailed, delivered or telegraphed and
confirmed to the Initial Purchaser at Xxxxxx Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Investment Banking Department - Transactions Advisory
Group, or, if sent to the Company, will be mailed, delivered or telegraphed and
confirmed to it at CBRE Holding, Inc., 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxx
Xxxxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx Xxxxxx.
10. Successors. This Agreement will inure to the benefit of and be
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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 Company as if such
holders were parties thereto.
11. Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. Applicable Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of New York.
The Company hereby submits 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.
-21-
If the foregoing is in accordance with the Initial Purchaser's
understanding of our agreement, kindly sign and return to us one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the Initial Purchaser in accordance with its terms.
Very truly yours,
CBRE HOLDING, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx 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
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Managing Director
