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