1
Exhibit 10
$65,000,000
CBRE HOLDING, INC.
16% SENIOR NOTES DUE 2011
NOTES REGISTRATION RIGHTS AGREEMENT
July 20, 2001
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
CBRE Holding, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to Credit Suisse First Boston Corporation ("CSFBC" or
the "INITIAL PURCHASER"), upon the terms set forth in a purchase agreement of
even date herewith (the "PURCHASE AGREEMENT"), $65,000,000 aggregate principal
amount of 16% Senior Notes Due 2011 (the "NOTES"). The Notes will be issued
pursuant to an Indenture, dated as of July 20, 2001 (the "INDENTURE"), among the
Company and State Street Bank and Trust Company of California, N.A., as trustee
(the "TRUSTEE"). The "Initial Securities" refers to the Notes immediately after
the Issue Date (as defined below).
As an inducement to the Initial Purchaser to enter into the
Purchase Agreement, the Company agrees with the Initial Purchaser, for the
benefit of the holders of the Initial Securities (including, without limitation,
the Initial Purchaser), the Exchange Securities (as defined below) and the
Private Exchange Securities (as defined below) (collectively, the "HOLDERS"), as
follows:
Registered Exchange Offer. Unless not permitted by applicable law (after the
Company has complied with the ultimate paragraph of this Section 1), the Company
shall prepare and, not later than 90 days (such 90th day being a "FILING
DEADLINE") after the date on which the Notes are issued (the "ISSUE DATE"), file
with the Securities and Exchange Commission (the "COMMISSION") a registration
statement (the "EXCHANGE OFFER REGISTRATION STATEMENT") on
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an appropriate form under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), with respect to a proposed offer (the "REGISTERED EXCHANGE
OFFER") to the Holders of Transfer Restricted Securities (as defined in Section
6 hereof), who are not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer, to issue and deliver to such
Holders, in exchange for the Initial Securities, a like aggregate principal
amount of debt securities of the Company issued under the Indenture, identical
in all material respects to the Initial Securities and registered under the
Securities Act (the "EXCHANGE SECURITIES"). The Company shall use its reasonable
best efforts to (i) cause such Exchange Offer Registration Statement to become
effective under the Securities Act within 180 days after the Issue Date (such
180th day being an "EFFECTIVENESS DEADLINE") and (ii) keep the Exchange Offer
Registration Statement effective for not less than 20 business days (or longer,
if required by applicable law) after the date notice of the Registered Exchange
Offer is mailed to the Holders (such period being called the "EXCHANGE OFFER
REGISTRATION PERIOD").
If the Company commences the Registered Exchange Offer, the
Company (i) will be entitled to consummate the Registered Exchange Offer 20
business days after such commencement (provided that the Company has accepted
all the Initial Securities theretofore validly tendered in accordance with the
terms of the Registered Exchange Offer) and (ii) will be required to consummate
the Registered Exchange Offer no later than 40 days after the date on which the
Exchange Offer Registration Statement is declared effective (such 40th day being
the "CONSUMMATION DEADLINE").
Following the declaration of the effectiveness of the Exchange
Offer Registration Statement, the Company shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder of Transfer Restricted Securities electing to exchange the
Initial Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act, acquires the
Exchange Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution of the Exchange
Securities and is not prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Securities Act and without material restrictions under the securities
laws of the several states of the United States.
The Company acknowledges that, pursuant to current
interpretations by the Commission's staff of Section 5 of the Securities Act, in
the absence of an applicable exemption therefrom, (i) each Holder which is a
broker-dealer electing to exchange Initial Securities, acquired for its own
account as a result of market making activities or other trading activities, for
Exchange Securities (an "EXCHANGING DEALER"), is required to deliver a
prospectus containing the information set forth in (a) Annex A hereto on the
cover, (b) Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section, and (c) Annex C hereto in the "Plan of
Distribution" section of such
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prospectus in connection with a sale of any such Exchange Securities received by
such Exchanging Dealer pursuant to the Registered Exchange Offer and (ii) an
Initial Purchaser that elects to sell Securities (as defined below) acquired in
exchange for Initial Securities constituting any portion of an unsold allotment,
is required to deliver a prospectus containing the information required by Items
507 or 508 of Regulation S-K under the Securities Act, as applicable, in
connection with such sale.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement effective and to amend and supplement the
prospectus contained therein, in order to permit such prospectus to be lawfully
delivered by all persons subject to the prospectus delivery requirements of the
Securities Act for such period of time as such persons must comply with such
requirements in order to resell the Exchange Securities; provided, however, that
(i) in the case where such prospectus and any amendment or supplement thereto
must be delivered by an Exchanging Dealer or the Initial Purchaser, such period
shall be the lesser of 180 days and the date on which all Exchanging Dealers and
the Initial Purchaser have sold all Exchange Securities held by them (unless
such period is extended pursuant to Section 3(j) below) and (ii) the Company
shall make such prospectus and any amendment or supplement thereto available to
any broker-dealer for use in connection with any resale of any Exchange
Securities for a period of not less than 180 days after the consummation of the
Registered Exchange Offer. Notwithstanding the foregoing, the Company shall not
be obligated to keep the Exchange Offer Registration Statement continuously
effective to the extent set forth above if the Company determines, in its
reasonable judgment, upon advice of counsel, that the continued effectiveness
and usability of the Exchange Offer Registration Statement would (i) require the
disclosure of material information, which the Company or any of its subsidiaries
has a bona fide business reason for preserving as confidential or (ii) interfere
with any existing or prospective financing, acquisition, corporate
reorganization or other material business situation, transaction or negotiation
involving the Company or any of its subsidiaries; provided, however, that the
failure to keep the Exchange Offer Registration Statement effective and usable
for such reason shall last no longer than 20 days (whereafter Additional
Interest (as defined in Section 6(a)) shall accrue and be payable until the
Exchange Offer Registration Statement becomes effective and usable) and shall in
no event occur during the first 30 days after the Exchange Offer Registration
Statement becomes effective. In the event that the Company does not keep the
Exchange Offer Registration Statement continuously effective as provided in the
immediately preceding sentence, the number of days during which the Exchange
Offer Registration Statement is not continuously effective, which shall include
the date the Company gives notice that the Exchange Offer Registration Statement
is no longer effective, shall be added on to, and therefore extend, the period
during which the Company is obligated to use its reasonable best efforts to keep
the Exchange Offer Registration Statement effective and to amend and supplement
the prospectus contained therein.
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If, upon consummation of the Registered Exchange Offer, the
Initial Purchaser holds Initial Securities acquired by it as part of its initial
distribution, the Company, simultaneously with the delivery of the Exchange
Securities pursuant to the Registered Exchange Offer, shall issue and deliver to
the Initial Purchaser upon the written request of the Initial Purchaser, in
exchange (the "PRIVATE EXCHANGE") for the Initial Securities held by the Initial
Purchaser, a like principal amount of debt securities of the Company issued
under the Indenture and identical in all material respects to the Initial
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Initial Securities, the
Exchange Securities and the Private Exchange Securities are herein collectively
called the "SECURITIES".
In connection with the Registered Exchange Offer, the Company
shall:
mail to each Holder a copy of the prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of transmittal and
related documents;
keep the Registered Exchange Offer open for not less than 20 business days (or
longer, if required by applicable law) after the date notice thereof is mailed
to the Holders;
utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan, The City of New York, which may be the
Trustee or an affiliate of the Trustee;
permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last business day on which the Registered
Exchange Offer shall remain open; and
otherwise comply with all applicable laws.
As soon as practicable after the close of the Registered
Exchange Offer or the Private Exchange, as the case may be, the Company shall:
(x) accept for exchange all the Securities validly tendered and not
withdrawn pursuant to the Registered Exchange Offer and the Private Exchange;
(y) deliver to the Trustee for cancellation all the Initial
Securities so accepted for exchange; and
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(z) cause the Trustee to authenticate and deliver promptly to each
Holder of the Initial Securities, Exchange Securities or Private Exchange
Securities, as the case may be, equal in principal amount to the Initial
Securities of such Holder so accepted for exchange.
The Indenture will provide that the Exchange Securities will not
be subject to the transfer restrictions set forth in the Indenture and that all
the Securities will vote and consent together on all matters as one class and
that none of the Securities will have the right to vote or consent as a class
separate from one another on any matter.
Interest on each Exchange Security and Private Exchange Security
issued pursuant to the Registered Exchange Offer and in the Private Exchange
will accrue from the last interest payment date on which interest was paid on
the Initial Securities surrendered in exchange therefor or, if no interest has
been paid on the Initial Securities, from the date of original issue of the
Initial Securities.
Each Holder participating in the Registered Exchange Offer shall
be required to represent to the Company that at the time of the consummation of
the Registered Exchange Offer (i) any Exchange Securities received by such
Holder will be acquired in the ordinary course of business, (ii) such Holder
will have no arrangements or understanding with any person to participate in the
distribution of the Initial Securities or the Exchange Securities within the
meaning of the Securities Act, (iii) such Holder is not an "affiliate," as
defined in Rule 405 of the Securities Act, of the Company or if it is an
affiliate, such Holder will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, that it is not engaged in, and does not intend to engage
in, the distribution of the Exchange Securities and (v) if such Holder is a
broker-dealer, that it will receive Exchange Securities for its own account in
exchange for Initial Securities that were acquired as a result of market-making
activities or other trading activities and that it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such Exchange Securities.
Notwithstanding any other provisions hereof, the Company will
ensure that (i) any Exchange Offer Registration Statement and any amendment
thereto and any prospectus forming part thereof and any supplement thereto
complies in all material respects with the Securities Act and the rules and
regulations thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of a
material fact or omit to state a material fact required to be
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stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
Shelf Registration. If, (i) applicable interpretations of the staff of the
Commission do not permit the Company to effect a Registered Exchange Offer, as
contemplated by Section 1 hereof, (ii) the Registered Exchange Offer is not
consummated by the 220th day after the Issue Date, (iii) the Initial Purchaser
so requests with respect to the Initial Securities (or the Private Exchange
Securities) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and held by it following consummation of the
Registered Exchange Offer or (iv) any Holder (other than an Exchanging Dealer)
is prohibited by law or Commission policy from participating in the Registered
Exchange Offer or, in the case of any Holder (other than an Exchanging Dealer)
that participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange and any such
Holder so requests, the Company shall take the following actions (the date on
which any of the conditions described in the foregoing clauses (i) through (iv)
occur, including in the case of clauses (iii) or (iv) the receipt of the
required notice, being a "TRIGGER DATE"):
The Company shall as promptly as practicable (but in no event more than 90 days
after the Trigger Date (such 90th day being a "FILING DEADLINE")) file with the
Commission and thereafter use its reasonable best efforts to cause to be
declared effective: in the case of clause (i), no later than 180 days after the
Issue Date and, in the case of clauses (ii) through (iv), no later than 90th
date after the Trigger Date (such 180th day after the Issue Date in the case of
clause (i), or such 90th day after the Trigger Date in the case of clauses (ii)
through (iv) being an "EFFECTIVENESS DEADLINE") a registration statement (the
"SHELF REGISTRATION STATEMENT" and, together with the Exchange Offer
Registration Statement, a "REGISTRATION STATEMENT") on an appropriate form under
the Securities Act relating to the offer and sale of the Transfer Restricted
Securities by the Holders thereof from time to time in accordance with the
methods of distribution set forth in the Shelf Registration Statement and Rule
415 under the Securities Act (hereinafter, the "SHELF REGISTRATION"); provided,
however, that no Holder (other than the Initial Purchaser) shall be entitled to
have the Securities held by it covered by such Shelf Registration Statement
unless such Holder agrees in writing to be bound by all the provisions of this
Agreement applicable to such Holder.
The Company shall use its reasonable best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus included
therein to be lawfully delivered by the Holders of the relevant Securities, for
a period of two years (or for such longer period if extended pursuant to Section
3(j) below) from the date of its effectiveness or such shorter period that will
terminate when all the Securities covered by the Shelf Registration Statement
(i) have been sold pursuant thereto or (ii) are no longer restricted securities
(as defined in Rule 144 under the Securities Act, or any successor rule thereof)
provided, however, the Company shall not be obligated to keep the Shelf
Registration
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Statement continuously effective to the extent set forth below if (i) the
Company determines, in its reasonable judgment, upon advice of counsel, that the
continued effectiveness and usability of the Shelf Registration statement would
(x) require the disclosure of material information, which the Company or any of
its subsidiaries has a bona fide business reason for preserving as confidential
or (y) interfere with any financing, acquisition, corporate reorganization or
other material transaction involving the Company or any of its subsidiaries,
provided that the failure to keep the Shelf Registration Statement effective and
usable for offers and sales of Securities for the reasons set forth in clauses
(x) and (y) above shall last no longer than 60 days in any 12-month period
(whereafter Additional Interest (as defined in Section 6(a)) shall accrue and be
payable until the Shelf Registration Statement becomes effective and usable) and
(ii) the Company promptly thereafter complies with the requirements of Section
3(j) hereof, if applicable; provided, further, that the number of days of any
actual Suspension Period (as hereinafter defined) shall be added on to, and
therefore extend, the two-year period specified above. Any such period during
which the Company is excused from keeping the Shelf Registration Statement
effective and usable for offers and sales of securities is referred to herein as
a "SUSPENSION PERIOD." A Suspension Period shall commence on and include the
date that the Company gives notice that the Shelf Registration Statement is no
longer effective or the prospectus included therein is no longer usable for
offers and sales of Securities and shall end on the earlier to occur of (1) the
date on which each seller of Securities covered by the Shelf Registration
Statement either receives the copies of the supplemented or amended prospectus
contemplated by Section 3(j) hereof or is advised in writing by the Company that
the use of the prospectus may be resumed and (2) the expiration of 60 days in
any 12-month period during which one or more Suspension Periods has been in
effect. The Company shall be deemed not to have used its reasonable best efforts
to keep the Shelf Registration Statement effective during the requisite period
if it voluntarily takes any action that would result in Holders of Securities
covered thereby not being able to offer and sell such Securities during that
period, unless such action is (A) required by applicable law or (B) permitted by
this paragraph.
Notwithstanding any other provisions of this Agreement to the contrary, the
Company shall cause the Shelf Registration Statement and the related prospectus
and any amendment or supplement thereto, as of the effective date of the Shelf
Registration Statement, amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations of the Commission and (ii) not to contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Registration Procedures. In connection with any Shelf Registration contemplated
by Section 2 hereof and, to the extent applicable, any Registered Exchange Offer
contemplated by Section 1 hereof, the following provisions shall apply:
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The Company shall (i) furnish to the Initial Purchaser, prior to the filing
thereof with the Commission, a copy of the Registration Statement and each
amendment thereof and each supplement, if any, to the prospectus included
therein and, in the event that the Initial Purchaser (with respect to any
portion of an unsold allotment from the original offering) is participating in
the Registered Exchange Offer or the Shelf Registration Statement, the Company
shall use its reasonable best efforts to reflect in each such document, when so
filed with the Commission, such comments as the Initial Purchaser reasonably may
propose; (ii) include the information set forth in Annex A hereto on the cover,
in Annex B hereto in the "Exchange Offer Procedures" section and the "Purpose of
the Exchange Offer" section and in Annex C hereto in the "Plan of Distribution"
section of the prospectus forming a part of the Exchange Offer Registration
Statement and include the information set forth in Annex D hereto in the Letter
of Transmittal delivered pursuant to the Registered Exchange Offer; (iii) if
requested by the Initial Purchaser, include the information required by Items
507 or 508 of Regulation S-K under the Securities Act, as applicable, in the
prospectus forming a part of the Exchange Offer Registration Statement; (iv)
include within the prospectus contained in the Exchange Offer Registration
Statement a section entitled "Plan of Distribution," reasonably acceptable to
the Initial Purchaser, which shall contain a summary statement of the positions
taken or policies made by the staff of the Commission with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")) of Exchange Securities received by such broker-dealer in
the Registered Exchange Offer (a "PARTICIPATING BROKER-DEALER"), whether such
positions or policies have been publicly disseminated by the staff of the
Commission or such positions or policies, in the reasonable judgment of the
Initial Purchaser based upon advice of counsel (which may be in-house counsel),
represent the prevailing views of the staff of the Commission; and (v) in the
case of a Shelf Registration Statement, include the names of the Holders who
propose to sell Securities pursuant to the Shelf Registration Statement as
selling securityholders.
The Company shall give written notice to the Initial Purchaser, the Holders of
the Securities and any Participating Broker-Dealer from whom the Company has
received prior written notice that it will be a Participating Broker-Dealer in
the Registered Exchange Offer (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the prospectus
until the requisite changes have been made):
when the Registration Statement or any amendment thereto
has been filed with the Commission and when the
Registration Statement or any post-effective
amendment thereto has become effective;
of any request by the Commission for amendments or
supplements to the Registration Statement or the
prospectus included therein or for additional
information;
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of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration
Statement or the initiation of any proceedings
for that purpose;
of the receipt by the Company or its legal counsel of
any notification with respect to the suspension
of the qualification of the Securities for sale
in any jurisdiction or the initiation or
threatening of any proceeding for such purpose;
and
of the happening of any event that requires the Company
to make changes in the Registration Statement or
the prospectus in order that the Registration
Statement or the prospectus do not contain an
untrue statement of a material fact nor omit to
state a material fact required to be stated
therein or necessary to make the statements
therein (in the case of the prospectus, in light
of the circumstances under which they were made)
not misleading.
The Company shall make every reasonable effort to obtain the withdrawal at the
earliest possible time, of any order suspending the effectiveness of the
Registration Statement.
The Company shall furnish to each Holder of Securities included within the
coverage of the Shelf Registration, without charge, at least one copy of the
Shelf Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Holder so requests in writing,
all exhibits thereto (including those, if any, incorporated by reference).
The Company shall deliver to each Exchanging Dealer and the Initial Purchaser,
and to any other Holder who so requests, without charge, at least one copy of
the Exchange Offer Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Initial
Purchaser or any such Holder requests, all exhibits thereto (including those
incorporated by reference).
The Company shall, during the Shelf Registration Period, deliver to each Holder
of Securities included within the coverage of the Shelf Registration, without
charge, as many copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or supplement
thereto as such person may reasonably request. The Company consents, subject to
the provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto by each of the selling Holders of the Securities in
connection with the offering and sale of the Securities covered by the
prospectus, or any amendment or supplement thereto, included in the Shelf
Registration Statement.
The Company shall deliver to the Initial Purchaser, any Exchanging Dealer, any
Participating Broker-Dealer and such other persons required to deliver a
prospectus following the
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Registered Exchange Offer, without charge, as many copies of the final
prospectus included in the Exchange Offer Registration Statement and any
amendment or supplement thereto as such persons may reasonably request. The
Company consents, subject to the provisions of this Agreement, to the use of the
prospectus or any amendment or supplement thereto by the Initial Purchaser, if
necessary, any Participating Broker-Dealer and such other persons required to
deliver a prospectus following the Registered Exchange Offer in connection with
the offering and sale of the Exchange Securities covered by the prospectus, or
any amendment or supplement thereto, included in such Exchange Offer
Registration Statement.
Prior to any public offering of the Securities pursuant to any Registration
Statement the Company shall use its reasonable best efforts to register or
qualify or cooperate with the Holders of the Securities included therein and
their respective counsel in connection with the registration or qualification of
the Securities for offer and sale under the securities or "blue sky" laws of
such states of the United States as any Holder of the Securities reasonably
requests in writing and do any and all other acts or things necessary or
advisable to enable the offer and sale in such jurisdictions of the Securities
covered by such Registration Statement; provided, however, that the Company
shall not be required to (i) qualify generally to do business in any
jurisdiction where it is not then so qualified or (ii) take any action which
would subject it to general service of process or to taxation in any
jurisdiction where it is not then so subject.
The Company shall cooperate with the Holders of the Securities to facilitate the
timely preparation and delivery of certificates representing the Securities to
be sold pursuant to any Registration Statement free of any restrictive legends
and in such denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the Securities pursuant to
such Registration Statement.
Upon the occurrence of any event contemplated by paragraphs (ii) through (v) of
Section 3(b) above during the period for which the Company is required to
maintain an effective Registration Statement, the Company shall promptly prepare
and file a post-effective amendment to the Registration Statement or a
supplement to the related prospectus and any other required document so that, as
thereafter delivered to Holders of the Securities or purchasers of Securities,
the prospectus will not contain an untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. If the Company notifies the Initial Purchaser, the Holders
of the Securities and any known Participating Broker-Dealer in accordance with
paragraphs (ii) through (v) of Section 3(b) above to suspend the use of the
prospectus until the requisite changes to the prospectus have been made, then
the Initial Purchaser, the Holders of the Securities and any such Participating
Broker-Dealers shall suspend use of such prospectus, and the period of
effectiveness of the Shelf Registration Statement provided for in Section 2(b)
above and the Exchange Offer Registration Statement provided for in Section 1
above shall each be extended by the number
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of days from and including the date of the giving of such notice to and
including the date when the Initial Purchaser, the Holders of the Securities and
any known Participating Broker-Dealer shall have received such amended or
supplemented prospectus pursuant to this Section 3(j).
Not later than the effective date of the applicable Registration Statement, the
Company will provide a CUSIP number for the Initial Securities, the Exchange
Securities or the Private Exchange Securities, as the case may be, and provide
the applicable trustee with printed certificates for the Initial Securities, the
Exchange Securities or the Private Exchange Securities, as the case may be, in a
form eligible for deposit with The Depository Trust Company.
The Company will comply with all rules and regulations of the Commission to the
extent and so long as they are applicable to the Registered Exchange Offer or
the Shelf Registration and will make generally available to its security holders
(or otherwise provide in accordance with Section 11(a) of the Securities Act) an
earnings statement satisfying the provisions of Section 11(a) of the Securities
Act, no later than 45 days after the end of a 12-month period (or 90 days, if
such period is a fiscal year) beginning with the first month of the Company's
first fiscal quarter commencing after the effective date of the Registration
Statement, which statement shall cover such 12-month period.
The Company shall cause the Indenture to be qualified under the Trust Indenture
Act of 1939, as amended, in a timely manner and containing such changes, if any,
as shall be necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
The Company may require each Holder of Securities to be sold pursuant to the
Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of the Securities as the Company may
from time to time reasonably require for inclusion in the Shelf Registration
Statement, and the Company may exclude from such registration the Securities of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
The Company shall enter into such customary agreements (including, if requested
by the Holders of at least 10% of the aggregate principal amount of the
outstanding Securities covered thereby, an underwriting agreement in customary
form) and take all such other action, if any, as the Holders of at least 10% of
the aggregate principal amount of the outstanding Securities shall reasonably
request in order to facilitate the disposition of the Securities pursuant to any
Shelf Registration.
In the case of any Shelf Registration, the Company shall (i) make reasonably
available for inspection by the Holders of the Securities, any underwriter
participating in any disposition
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pursuant to the Shelf Registration Statement and any attorney, accountant or
other agent retained by the Holders of the Securities or any such underwriter
all relevant financial and other records, pertinent corporate documents and
properties of the Company and (ii) cause the Company's officers, directors,
employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders of the Securities or any such underwriter,
attorney, accountant or agent in connection with the Shelf Registration
Statement (the information supplied pursuant to clauses (i) and (ii) being the
"RECORDS"), in each case, as shall be reasonably necessary to enable such
persons, to conduct a reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however, that any such person shall first agree
in writing with the Company that any information that is reasonably and in good
faith designated by the Company as confidential at the time of delivery of such
information shall be kept confidential by such person, unless (A) disclosure of
such information is required by court or administrative order or is necessary to
respond to inquiries of regulatory authorities, (B) disclosure of such
information is required by law (including any disclosure requirements pursuant
to federal securities laws in connection with the filing of the Registration
Statement or the use of any prospectus) or (C) such information becomes
generally available to the public other than as a result of a disclosure or
failure to safeguard such information by such person; provided further that the
foregoing inspection and information gathering shall be coordinated on behalf of
the Initial Purchaser by CSFB and on behalf of the other parties, by one counsel
designated by and on behalf of such other parties as described in Section 4
hereof. Each Holder of Securities and the Initial Purchaser further agree and
shall cause any person reviewing documents on their behalf pursuant to this
paragraph (p) to agree, that it will, upon learning that disclosure of such
Records is sought pursuant to clause (A) or (B) above, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
In the case of any Shelf Registration, the Company, if requested by any Holder
of at least 10% of the aggregate principal amount of the outstanding Securities
covered thereby, shall cause (i) its counsel to deliver an opinion and updates
thereof relating to the Securities in customary form addressed to such Holders
and the managing underwriters, if any, thereof and dated, in the case of the
initial opinion, the effective date of such Shelf Registration Statement (it
being agreed that the matters to be covered by such opinion shall include,
without limitation, the due incorporation and good standing of the Company and
the Company's U.S. Subsidiaries); the qualification of the Company and the
Company's U.S. Subsidiaries to transact business as foreign corporations; the
due authorization, execution and delivery of the relevant agreement of the type
referred to in Section 3(o) hereof; the due authorization, execution,
authentication and issuance, and the validity and enforceability, of the
applicable Securities; the absence of material legal or governmental proceedings
involving the Company and the Company's U.S. Subsidiaries; the absence of
governmental approvals required to be obtained in connection with the Shelf
Registration Statement, the offering and sale of the applicable Securities, or
any agreement of the type referred to in Section 3(o) hereof; the compliance as
to form of
13
such Shelf Registration Statement and any documents incorporated by reference
therein and of the Indenture with the requirements of the Securities Act and the
Trust Indenture Act, respectively; and, as of the date of the opinion and as of
the effective date of the Shelf Registration Statement or most recent
post-effective amendment thereto (or in the case of a Shelf Registration
Statement where a new Annual Report on Form 10-K has been filed by the Company
subsequent to the effective date of the Shelf Registration Statement or latest
post-effective amendment thereto, as of the date of such Annual Report), as the
case may be, the absence from such Shelf Registration Statement and the
prospectus included therein, as then amended or supplemented, and from any
documents incorporated by reference therein of an untrue statement of a material
fact or the omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading (in the case
of any such documents, in the light of the circumstances existing at the time
that such documents were filed with the Commission under the Exchange Act); (ii)
its officers to execute and deliver all customary documents and certificates and
updates thereof requested by any underwriters of the applicable Securities and
(iii) its independent public accountants to provide to the selling Holders of
the applicable Securities and any underwriter therefor a comfort letter in
customary form and covering matters of the type customarily covered in comfort
letters in connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.
In the case of the Registered Exchange Offer, if requested by the Initial
Purchaser or any known Participating Broker-Dealer, the Company shall cause (i)
its counsel to deliver to the Initial Purchaser or such Participating
Broker-Dealer a signed opinion substantially in the form set forth in Exhibits A
and C to the Purchase Agreement, modified as is customary in connection with the
preparation of a Registration Statement and (ii) its independent public
accountants to deliver to the Initial Purchaser or such Participating
Broker-Dealer a comfort letter, in customary form, meeting the requirements as
to the substance thereof as set forth in Section 6(a) of the Purchase Agreement,
with appropriate date changes.
If a Registered Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Initial Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the Exchange Securities or
the Private Exchange Securities, as the case may be, the Company shall xxxx, or
caused to be marked, on the Initial Securities so exchanged that such Initial
Securities are being canceled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be; in no event shall the
Securities be marked as paid or otherwise satisfied.
If the Initial Securities have been rated prior to the initial sale of such
Initial Securities, the Company will use its reasonable best efforts to confirm
such ratings will apply to the Securities covered by a Registration Statement.
14
In the event that any broker-dealer registered under the Exchange Act shall
underwrite any Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Conduct Rules (the "RULES") of the National Association of Securities
Dealers, Inc. ("NASD")) thereof, whether as a Holder of such Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, the Company will assist such broker-dealer in complying
with the requirements of such Rules, including, without limitation, by (i) if
such Rules, including Rule 2720, shall so require, engaging a "qualified
independent underwriter" (as defined in Rule 2720) to participate in the
preparation of the Registration Statement relating to such Securities, to
exercise usual standards of due diligence in respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an underwritten
offering or is made through a placement or sales agent, to recommend the yield
of such Securities, (ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of underwriters provided in Section 5
hereof and (iii) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of the
Rules.
The Company shall use its reasonable best efforts to take all other steps
necessary to effect the registration of the Securities covered by a Registration
Statement contemplated hereby.
Registration Expenses. (a) All expenses incident to the Company's performance of
and compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement is ever filed or becomes effective, including
without limitation;
all registration and filing fees and expenses;
all fees and expenses of compliance with federal
securities and state "blue sky" or securities
laws;
all expenses of printing (including printing
certificates for the Securities to be issued in
the Registered Exchange Offer and the Private
Exchange and printing of Prospectuses),
messenger and delivery services and telephone;
all fees and disbursements of counsel for the Company;
all application and filing fees in connection with
listing the Exchange Securities on a national
securities exchange or automated quotation
system pursuant to the requirements hereof; and
all fees and disbursements of independent certified
public accountants of the Company (including the
expenses of any special audit
15
and comfort letters required by or incident to
such performance).
The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any person, including special experts, retained by the Company.
(b) In connection with any Registration Statement required
by this Agreement, the Company will reimburse the Initial Purchaser and the
Holders of Transfer Restricted Securities who are tendering Initial Securities
in the Registered Exchange Offer and/or selling or reselling Securities pursuant
to the "Plan of Distribution" contained in the Exchange Offer Registration
Statement or the Shelf Registration Statement, as applicable, for the reasonable
fees and disbursements (such fees and disbursements not to exceed $10,000) of
not more than one counsel, who shall be Xxxxxx Xxxxxx & Xxxxxxx unless another
firm shall be chosen by the Holders of a majority in principal amount of the
Transfer Restricted Securities for whose benefit such Registration Statement is
being prepared.
Indemnification. (a) The Company agrees to indemnify and hold harmless each
Holder of the Securities, any Participating Broker-Dealer and each person, if
any, who controls such Holder or such Participating Broker-Dealer within the
meaning of the Securities Act or the Exchange Act (each Holder, any
Participating Broker-Dealer and such controlling persons are referred to
collectively as the "INDEMNIFIED PARTIES") from and against any losses, claims,
damages or liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages, liabilities or
actions relating to purchases and sales of the Securities) to which each
Indemnified Party may become subject under the Securities Act, the Exchange Act
or otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in any
amendment or supplement thereto or in any preliminary prospectus relating to a
Shelf Registration, or arise out of, or are based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall reimburse, as
incurred, the Indemnified Parties for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action in respect thereof; provided, however, that
(i) the Company shall not be liable in any such case to the extent that such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or alleged untrue statement or omission or alleged omission (A) made
in a Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Shelf Registration in
reliance upon and in conformity with written information pertaining to such
Holder and furnished to the Company by or on behalf of such Holder specifically
for inclusion therein or (B) resulting from the use of the prospectus during the
period when the use of the prospectus was suspended or otherwise
16
unavailable for sales thereunder in accordance with the terms of this Agreement;
provided, however, that Holders received at least 10 days prior written notice
of such suspension or other unavailability; and (ii) with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus relating to a Shelf Registration Statement, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased the Securities concerned, to
the extent that a prospectus relating to such Securities was required to be
delivered by such Holder or Participating Broker-Dealer under the Securities Act
in connection with such purchase and any such loss, claim, damage or liability
of such Holder or Participating Broker-Dealer results from the fact that there
was not sent or given to such person, at or prior to the written confirmation of
the sale of such Securities to such person, a copy of the final prospectus if
the Company had previously furnished copies thereof to such Holder or
Participating Broker-Dealer; provided further, however, that this indemnity
agreement will be in addition to any liability which the Company may otherwise
have to such Indemnified Party. The Company shall also indemnify underwriters,
their officers and directors and each person who controls such underwriters
within the meaning of the Securities Act or the Exchange Act to the same extent
as provided above with respect to the indemnification of the Holders of the
Securities if requested by such Holders.
(b) Each Holder of the Securities, severally and not jointly, will
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act or the Exchange Act from
and against any losses, claims, damages or liabilities or any actions in respect
thereof, to which the Company or any such controlling person may become subject
under the Securities Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Shelf Registration, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein not misleading, but in
each case only to the extent that the untrue statement or omission or alleged
untrue statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the Company by or
on behalf of such Holder specifically for inclusion therein; and, subject to the
limitation set forth immediately preceding this clause, shall reimburse, as
incurred, the Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating or
defending any loss, claim, damage, liability or action in respect thereof. This
indemnity agreement will be in addition to any liability which such Holder may
otherwise have to the Company or any of its controlling persons.
17
(c) Promptly after receipt by an indemnified party under this
Section 5 of notice of the commencement of any action or proceeding (including a
governmental investigation), such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party under this Section 5,
notify the indemnifying party of the commencement thereof; but the omission so
to notify the indemnifying party will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (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 5 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof. 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 a failure to act by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 5 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (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 (or actions in respect thereof) referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the exchange of the Securities,
pursuant to the Registered Exchange Offer, or (ii) if the allocation provided by
the foregoing clause (i) is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions that resulted in such losses, claims, damages
or liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative fault of the parties 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 on the one hand or
such Holder or such other
18
indemnified party, as the case may be, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such 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 any other provision of this Section 5(d), the Holders of the
Securities shall not be required to contribute any amount in excess of the
amount by which the net proceeds received by such Holders from the sale of the
Securities pursuant to a Registration Statement exceeds the amount of damages
which such Holders have otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls such indemnified party within the meaning of
the Securities Act or the Exchange Act shall have the same rights to
contribution as such indemnified party and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 5 shall survive the
sale of the Securities pursuant to a Registration Statement and shall remain in
full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
Additional Interest Under Certain Circumstances. (a) Additional interest (the
"ADDITIONAL INTEREST") with respect to the Securities shall be assessed as
follows if any of the following events occur (each such event in clauses (i)
through (iv) below being herein called a "REGISTRATION DEFAULT"):
any Registration Statement required by this Agreement is
not filed with the Commission on or prior to the
applicable Filing Deadline;
any Registration Statement required by this Agreement is
not declared effective by the Commission on or
prior to the applicable Effectiveness Deadline;
the Registered Exchange Offer has not been consummated
on or prior to the Consummation Deadline; or
any Registration Statement required by this Agreement
has been declared effective by the Commission
but (A) such Registration Statement thereafter
ceases to be effective or (B) such
19
Registration Statement or the related prospectus
ceases to be usable in connection with resales
of Transfer Restricted Securities during the
periods specified herein because either (1) any
event occurs as a result of which the related
prospectus forming part of such Registration
Statement would include any untrue statement of
a material fact or omit to state any material
fact necessary to make the statements therein in
the light of the circumstances under which they
were made not misleading, or (2) it shall be
necessary to amend such Registration Statement
or supplement the related prospectus, to comply
with the Securities Act or the Exchange Act or
the respective rules thereunder.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Securities over and
above the interest set forth in the title of the Securities from and including
the date on which any such Registration Default shall occur to but excluding the
date on which all such Registration Defaults have been cured, at a rate of 0.50%
per annum (the "ADDITIONAL INTEREST RATE") for the first 90-day period
immediately following the occurrence of such Registration Default. The
Additional Interest Rate shall increase by an additional 0.50% per annum with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum Additional Interest Rate of 2.0% per annum.
(b) A Registration Default referred to in Section 6(a)(iv) hereof
shall be deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related prospectus or (y) other material events, with respect
to the Company that would need to be described in such Shelf Registration
Statement or the related prospectus and (ii) in the case of clause (y), the
Company is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such events;
provided, however, that in any case if such Registration Default occurs for a
continuous period in excess of 30 days, Additional Interest shall be payable in
accordance with the above paragraph from the day such Registration Default
occurs until such Registration Default is cured.
20
(c) Any amounts of Additional Interest due pursuant to Section 6(a)
will be payable in cash or as PIK Interest (as defined in the Indenture) on the
regular interest payment dates with respect to the Securities. The amount of
Additional Interest will be determined by multiplying the applicable Additional
Interest Rate by the principal amount of the Securities and further multiplied
by a fraction, the numerator of which is the number of days such Additional
Interest Rate was applicable during such period (determined on the basis of a
360-day year comprised of twelve 30-day months), and the denominator of which is
360.
(d) "TRANSFER RESTRICTED SECURITIES" means each Security until (i)
the date on which such Security has been exchanged by a person other than a
broker-dealer for a freely transferable Exchange Security in the Registered
Exchange Offer, (ii) following the exchange by a broker-dealer in the Registered
Exchange Offer of a Security for an Exchange Note, the date on which such
Exchange Note is sold to a purchaser who receives from such broker-dealer on or
prior to the date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, (iii) the date on which such Security has
been effectively registered under the Securities Act and disposed of in
accordance with the Shelf Registration Statement or (iv) the date on which such
Security is distributed to the public pursuant to Rule 144 under the Securities
Act or is saleable pursuant to Rule 144(k) under the Securities Act.
Rules 144 and 144A. The Company shall use its best efforts to file the reports
required to be filed by it under the Securities Act and the Exchange Act in a
timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Securities, make publicly
available other information so long as necessary to permit sales of their
Securities pursuant to Rules 144 and 144A. The Company covenants that it will
take such further action as any Holder of Securities may reasonably request, all
to the extent required from time to time to enable such Holder to sell
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including the requirements of
Rule 144A(d)(4)). The Company will provide a copy of this Agreement to
prospective purchasers of Initial Securities identified to the Company by the
Initial Purchaser upon request. Upon the request of any Holder of Initial
Securities, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 7 shall be deemed to require the Company to register any
of its Securities pursuant to the Exchange Act.
Underwritten Registrations. If any of the Transfer Restricted Securities covered
by any Shelf Registration are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will
administer the offering ("MANAGING UNDERWRITERS") will be selected by the
Holders of a majority in aggregate principal amount of such Transfer Restricted
Securities to be included in such offering and shall be reasonably acceptable to
the Company.
21
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
Miscellaneous.
Remedies. The Company acknowledges and agrees that any failure by the Company to
comply with its obligations under Section 1 and 2 hereof may result in material
irreparable injury to the Initial Purchaser or the Holders for which there is no
adequate remedy at law, that it will not be possible to measure damages for such
injuries precisely and that, in the event of any such failure, the Initial
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Company's obligations under Sections 1 and 2 hereof.
The Company further agrees to waive the defense in any action for specific
performance that a remedy at law would be adequate.
No Inconsistent Agreements. The Company will not on or after the date of this
Agreement enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of the Company's securities under any
agreement in effect on the date hereof.
Amendments and Waivers. The provisions of this Agreement may not be amended,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, except by the Company and the written
consent of the Holders of a majority in principal amount of the Securities
affected by such amendment, modification, supplement, waiver or consents.
Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand delivery, first-class mail, facsimile
transmission, or air courier which guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Initial Purchaser;
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
00
Xxx Xxxx, Xxx Xxxx 00000-0000
Fax No.: (000) 000-0000
Attention: Transactions Advisory Group
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Esq.
(3) if to the Company, at its address as follows:
CBRE Holding, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
23
Fax No.: (000) 000-0000
Attention: Xxxx Xxxxxxxx, Esq.
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Fax No.: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
Third Party Beneficiaries. The Holders shall be third party beneficiaries to the
agreements made hereunder between the Company, on the one hand, and the Initial
Purchaser, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder.
Successors and Assigns. This Agreement shall be binding upon the Company, the
Initial Purchaser and their successors and assigns.
Counterparts. This Agreement may be executed in any number of counterparts and
by the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Severability. If any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and
24
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
Securities Held by the Company. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities is required hereunder,
Securities held by the Company or its affiliates (other than subsequent Holders
of Securities if such subsequent Holders are deemed to be affiliates solely by
reason of their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
25
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement of
the Initial Purchaser and the Company in accordance with its terms. Very truly
yours,
CBRE HOLDING, INC.
By:
--------------------------------------------
Name:
Title:
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-------------------------------------
Name:
Title:
26
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Initial Securities
where such Initial Securities were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
27
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Initial Securities, where such Initial Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
28
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Initial Securities where such Initial Securities were acquired as a
result of market-making activities or other trading activities. The Company has
agreed that, for a period of 180 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until [ ], all dealers
effecting transactions in the Exchange Securities may be required to deliver a
prospectus.(1)
The Company will not receive any proceeds from any sale of
Exchange Securities by broker-dealers. Exchange Securities received by
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time in one or more transactions in the over-the-counter market, in
negotiated transactions, through the writing of options on the Exchange
Securities or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or negotiated prices. Any such resale may be made directly to purchasers
or to or through brokers or dealers who may receive compensation in the form of
commissions or concessions from any such broker-dealer or the purchasers of any
such Exchange Securities. Any broker-dealer that resells Exchange Securities
that were received by it for its own account pursuant to the Exchange Offer and
any broker or dealer that participates in a distribution of such Exchange
Securities may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of Exchange Securities and any
commission or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 180 days after the Expiration Date the Company
will promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one
--------------------------
(1) In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus
29
counsel for the Holders of the Securities) other than commissions or concessions
of any brokers or dealers and will indemnify the Holders of the Securities
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
30
ANNEX D
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
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Address:
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If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Initial Securities that were
acquired as a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
