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Credit Agreement

Revolving Credit Agreement

Credit Agreement | Document Parties: CB RICHARD ELLIS GROUP INC | CREDIT SUISSE SECURITIES (USA) LLC You are currently viewing:
This Revolving Credit Agreement involves

CB RICHARD ELLIS GROUP INC | CREDIT SUISSE SECURITIES (USA) LLC

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Title: Credit Agreement
Governing Law: New York     Date: 11/1/2006
Industry: Real Estate Operations    

Credit Agreement, Parties: cb richard ellis group inc , credit suisse securities (usa) llc
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Exhibit 2.02

EXECUTION COPY

 

 

 

 

CREDIT SUISSE SECURITIES (USA) LLC

Eleven Madison Avenue

New York, NY 10010

  

CREDIT SUISSE

Eleven Madison Avenue

New York, NY 10010

CONFIDENTIAL

October 30, 2006

CB Richard Ellis Services, Inc.

100 North Sepulveda Boulevard, Suite 1050

El Segundo, CA 90245

Attention of Mr. Kenneth J. Kay

CB Richard Ellis Services, Inc.

$2,200,000,000 Senior Secured Term Loan Facilities

$600,000,000 Senior Secured Replacement Revolving Credit Facility

Commitment Letter

Ladies and Gentlemen:

Reference is made to the Credit Agreement dated as of June 26, 2006, among CB Richard Ellis Services, Inc., a Delaware corporation (“ you ” or “ CBRE ”), certain subsidiaries of CBRE, CB Richard Ellis Group, Inc., a Delaware corporation (“ Holdings ”), the lenders from time to time party thereto and Credit Suisse (“ CS ”), as administrative agent and collateral agent (the “ Existing Credit Agreement ”).

You have advised CS and Credit Suisse Securities (USA) LLC (“ CS Securities ” and, together with CS and their respective affiliates, “ Credit Suisse ”, “ we ” or “ us ”) that you intend to acquire (the “ Acquisition ”) a Delaware corporation previously identified to us as “A2” (the “ Company ”), and to consummate the other Transactions (such term and each other capitalized term used but not defined herein having the meaning assigned to such term in the Summary of Principal Terms and Conditions attached hereto as Exhibit A (the “ Term Sheet ”).

You have further advised us that, in connection therewith, (a) CBRE will obtain the senior secured term loan facilities (the “ Term Facilities ”) described in the Term Sheet, in an aggregate principal amount of up to $2,200,000,000, and (b) the Borrowers will seek to amend the Existing Credit Agreement (the “ Proposed Amendment ”) to, among other things, allow the consummation of the Acquisition and the incurrence of the Term Facilities. If the Proposed Amendment is not obtained, the Borrowers will obtain the Replacement Revolving Facility described in the Term Sheet. The Term Facilities, the Replacement Revolving Facility and the senior secured revolving credit facilities


under the Existing Credit Agreement are collectively referred to herein as the “ Facilities ”.

 

1.

Commitment .

In connection with the foregoing, (a) CS is pleased to advise you of its commitment to provide the entire principal amount of the Term Facilities, (b) CS Securities is pleased to advise you of its agreement to use commercially reasonable efforts to arrange the Proposed Amendment and (c) CS is pleased to advise you of its commitment, in the event that the Proposed Amendment is not obtained, to provide the entire principal amount of the Replacement Revolving Facility, in each case, upon the terms and subject to the conditions set forth or referred to in this commitment letter (including the Term Sheet and the other attachments hereto, this “ Commitment Letter ”).

 

2.

Titles and Roles .

You hereby appoint (a) CS Securities to act, and CS Securities hereby agrees to act, as joint bookrunner and joint lead arranger for the Facilities and as sole lead arranger for the Proposed Amendment (with one other institution to be mutually agreed by you and us to act as joint bookrunner and joint lead arranger for the Facilities (an “ Additional Joint Lead Arranger ”)), and (b) CS to act, and CS hereby agrees to act, as sole administrative agent and sole collateral agent for the Facilities, in each case upon the terms and subject to the conditions set forth or referred to in this Commitment Letter. Each of CS Securities and CS, in such capacities, will perform the duties and exercise the authority customarily performed and exercised by it in such roles. You agree that Credit Suisse will have “left” placement in any and all marketing materials or other documentation used in connection with the Facilities. You further agree that no other titles will be awarded and no compensation (other than that expressly contemplated by this Commitment Letter and the Fee Letter referred to below) will be paid in connection with the Facilities unless you and we shall so agree.

 

3.

Syndication .

CS Securities reserves the right, prior to and/or after the execution of definitive documentation for the Facilities, to syndicate all or a portion of CS’s commitment with respect to the Facilities to a group of banks, financial institutions and other institutional lenders (together with CS, the “ Lenders ”) identified by us in consultation with you, and you agree to provide CS Securities with a period of at least 30 days following the receipt by the Agent of the financial statements of the Company required under paragraph 3 of Annex II to Exhibit A hereto and prior to the Closing Date to syndicate the Facilities ( provided that the Closing Date shall not occur (a) prior to December 18, 2006, or (b) on any day from and including December 21, 2006, through and including January 2, 2007). Without limiting your obligations to assist with syndication efforts as set forth below, it is understood that CS’s commitment hereunder is not subject to the syndication of the Facilities. We intend to commence syndication efforts promptly upon the execution of this Commitment Letter, and you agree actively to assist us in completing a mutually

 

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satisfactory syndication. Such assistance shall include (a) your using commercially reasonable efforts to ensure that the syndication efforts benefit from your existing lending and investment banking relationships and the existing lending and investment banking relationships of the Company, (b) direct contact between senior management, representatives and advisors of CBRE (and your using commercially reasonable efforts to cause direct contact between senior management, representatives and advisors of the Company) and the proposed Lenders, (c) assistance by CBRE (and your using commercially reasonable efforts to cause assistance by the Company) in the preparation of a Confidential Information Memorandum and other marketing materials to be used in connection with the syndication, (d) your using all reasonable efforts to obtain, prior to the launch of the syndication, a “corporate rating” from Standard & Poor’s Ratings Service and a “corporate family rating” from Moody’s Investors Service, Inc. and (e) the hosting, with CS Securities, of one or more meetings of prospective Lenders. You agree, at the request of CS Securities, to assist in the preparation of a version of the Confidential Information Memorandum and other marketing materials and presentations to be used in connection with the syndication of the Facilities, consisting exclusively of information and documentation that is either (i) publicly available or (ii) not material with respect to Holdings, the Company or their respective subsidiaries for purposes of United States Federal and state securities laws (all such information and documentation being “ Public Lender Information ”). Any information and documentation that is not Public Lender Information is referred to herein as “ Private Lender Information ”. You further agree that each document to be disseminated by CS Securities to any Lender in connection with the Facilities will, at the request of CS Securities, be identified by you as either (i) containing Private Lender Information or (ii) containing solely Public Lender Information.

CS Securities will manage, in consultation with you, all aspects of the syndication, including decisions as to the selection of institutions to be approached and when they will be approached, when their commitments will be accepted, which institutions will participate (which will be subject to your consent (not to be unreasonably withheld)), the allocation of the commitments among the Lenders, any naming rights and the amount and distribution of fees among the Lenders. To assist CS Securities in its syndication efforts, you agree promptly to prepare and provide (and to use commercially reasonable efforts to cause the Company promptly to provide) to CS Securities all information with respect to Holdings, the Company and their respective subsidiaries, the Transactions and the other transactions contemplated hereby, including all financial information and projections (the “ Projections ”), as CS Securities may reasonably request.

 

4.

Information .

You hereby represent and covenant that (a) all information other than the Projections and information of a general economic or general industry nature (the “ Information ”) that has been or will be made available to Credit Suisse by you or any of your representatives in connection with the Facilities is or will be, when furnished, complete and correct in all material respects and does not or will not, when furnished,

 

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contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made ( provided that, to the extent such Information relates to the Company, such representation is made to the best of your knowledge) and (b) the Projections that have been or will be made available to Credit Suisse by you or any of your representatives in connection with the Facilities have been or will be prepared in good faith based upon assumptions that, taken as a whole, are believed by you to be reasonable at the time made and at the time the related Projections are made available to Credit Suisse (although no representation is made that the Projections will be achieved). You agree that if at any time prior to the closing of the Facilities any of the representations in the preceding sentence would be incorrect if the Information and Projections were being furnished, and such representations were being made, at such time, then you will promptly supplement the Information and the Projections so that such representations will be correct under those circumstances. In arranging and syndicating the Facilities, we will be entitled to use and rely primarily on the Information and the Projections without responsibility for independent verification thereof.

 

5.

Fees .

As consideration for CS’s commitment hereunder, and our agreements to perform the services described herein, you agree to pay to CS Securities and CS the non-refundable fees set forth in this Commitment Letter and in the fee letter dated the date hereof and delivered herewith with respect to the Facilities (the “ Fee Letter ”).

 

6.

Conditions Precedent .

CS’s commitment hereunder, and our agreements to perform the services described herein, are subject to (a) there not having occurred any action, event, occurrence, development or state of circumstances or facts, since the date of the Merger Agreement, that has had or would be reasonably likely to have, individually or in the aggregate, any material adverse effect on (i) the business, assets, liabilities, financial condition or results of operations of the Company and its Subsidiaries (such term and each other capitalized term used in this clause (a) but not defined in this Commitment Letter having the meaning assigned to such term in the Merger Agreement), taken as a whole (but with respect to Project Entities and Company Minority Investments, only to the extent of such effects on the Company’s direct or indirect Equity Interests therein and/or on the obligations or liabilities of the Company and its Subsidiaries that are not Project Entities or Company Minority Investments), or (ii) the ability of the Company to perform its obligations under the Merger Agreement or the other agreements and transactions contemplated by the Merger Agreement to which it is a party (any such material adverse effect, a “ Company MAE ”), provided , however , that, in determining whether there has been a Company MAE or whether a Company MAE would be reasonably likely to occur, the definition of such term shall exclude any material adverse effect to the extent arising out of, attributable to or resulting from (A) any generally

 

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applicable change in Law or GAAP or interpretation of any thereof, (B) (w) any public announcement prior to the date of the Merger Agreement of discussions among the parties to the Merger Agreement regarding the transactions contemplated thereby, (x) the announcement of the Merger Agreement, (y) the pendency of the consummation of the Merger or the transactions contemplated by the Merger Agreement or (z) any suit, action or proceeding arising out of or in connection with the Merger Agreement or the transactions contemplated thereby (other than causes of action brought by Holdings or Merger Sub for breach of the Merger Agreement), (C) actions or inactions specifically permitted by a prior written waiver by Holdings of performance by the Company of any of its obligations under the Merger Agreement, (D) changes in conditions generally affecting the industries in which the Company and its Subsidiaries conduct their business, (E) general economic, political or financial market conditions, (F) any outbreak or escalation of hostilities (including, without limitation, any declaration of war by the United States Congress) or acts of terrorism, (G) the termination after the date of the Merger Agreement of any employee’s or independent contractor’s employment by, or independent contractor relationship with, the Company or any of its Subsidiaries, or any notice thereof, other than as a result of any breach by the Company or any of its Subsidiaries of the terms of the Merger Agreement, (H) the failure of the Company or any Company Subsidiary to comply with any applicable requirements of any international or foreign Laws arising out of or in connection with the Merger Agreement or the transactions contemplated thereby, (I) the failure of the Company or any Company Subsidiary to obtain any consent, approval, action, authorization or permit of any Third Party with respect to any Contract set forth in Section 4.4 of the Company Disclosure Schedule arising out of or in connection with the Merger Agreement or the transactions contemplated thereby, (J) the cancellation after the date of the Merger Agreement or notice of cancellation after the date of the Merger Agreement of third-party property management, construction management, building management, development management or brokerage Contracts to which the Company or any of its Subsidiaries is or may become a party unless the applicable Contract would have been cancelled by the counterparty thereto regardless of the Merger Agreement or the transactions contemplated by the Merger Agreement or any discussions or negotiations relating thereto, provided that it shall be presumed that any such cancellation resulted from or was due to the Merger Agreement, the transactions contemplated by the Merger Agreement or any discussions or negotiations relating thereto unless Holdings proves that the Contract would have been cancelled regardless of the Merger Agreement or the transactions contemplated by the Merger Agreement or any discussions or negotiations relating thereto, (K) any termination of any of the Alliance Agreements, the Meghraj Joint Venture or Krombach Joint Venture by a counterparty thereto, or the exercise of any purchase or sale rights by the counterparties thereto, (L) the termination of any agreements relating to Special Purpose Vehicles or the liquidation or dissolution of any Special Purpose Vehicles, in each case, in the Ordinary Course of Business, (M) any (x) required change in accounting method with respect to the Company’s Equity Interest in Savills plc, (y) adverse change in the market price or trading volume of the ordinary shares of Savills plc or (z) adverse change in the business, assets, liabilities, financial condition or results of operations of Savills plc, (N) any adverse change in the market

 

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price or trading volume of the Company Shares after the date of the Merger Agreement, provided that the underlying cause of any such change may be taken into consideration in making such determination, (O) any failure by the Company to meet internal projections or forecasts or Third Party published estimates of revenue or earnings predictions for any period ending on or after the date of the Merger Agreement, provided that the underlying cause of any such failure may be taken into consideration in making such determination, (P) any expenses incurred in connection with the negotiation, documentation and execution of the Merger Agreement, the actions required by Sections 6.1 through 6.6 (inclusive) thereof and Article 8 thereof and the consummation of the Merger, including, as a result of the Company’s entry into, and the payment of any amounts due to, or the provision of any other benefits (including benefits relating to acceleration of stock options) to, any officers or employees under employment contracts, non-competition agreements, employee benefit plans, severance, bonus or retention arrangements or other arrangements in existence as of the date of the Merger Agreement or as disclosed in the Merger Agreement, in each case to the extent that the foregoing do not constitute a breach of any representation, warranty, covenant or agreement set forth in the Merger Agreement, or (Q) (x) the taking of any action outside the Ordinary Course of Business required by the Merger Agreement or (y) the failure to take any action prohibited by the Merger Agreement, (b) our reasonable satisfaction that, prior to and during the syndication of the Facilities, there shall be no competing issues of debt securities or commercial bank or other credit facilities of Holdings, the Company or their respective subsidiaries being announced, offered, placed or arranged, (c) the negotiation, execution and delivery of definitive documentation with respect to the Facilities reasonably satisfactory to Credit Suisse and its counsel, (d) your payment of all fees and other amounts due hereunder or under the Fee Letter, to the extent invoiced on or prior to the Closing Date, and (e) the other conditions set forth or referred to in the Term Sheet and the other attachments hereto.

 

7.

Indemnification; Expenses .

You agree (a) to indemnify and hold harmless Credit Suisse and its officers, directors, employees, agents, advisors, controlling persons, members and successors and assigns (each, an “ Indemnified Person ”) from and against any and all losses, claims, damages, liabilities and expenses, joint or several, to which any such Indemnified Person may become subject arising out of or in connection with this Commitment Letter, the Fee Letter, the Transactions, the Facilities or any related transaction or any claim, litigation, investigation or proceeding relating to any of the foregoing, regardless of whether any such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a third party or by Holdings, the Company or any of their respective affiliates), and to reimburse each such Indemnified Person upon demand for any reasonable legal or other expenses incurred in connection with investigating or defending any of the foregoing, provided that the foregoing indemnity will not, as to any Indemnified Person, apply to losses, claims, damages, liabilities or related expenses to the extent they are found in a final judgment of a court of competent jurisdiction to have resulted from the willful misconduct or gross negligence of such Indemnified Person, and

 

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(b) to reimburse Credit Suisse from time to time, upon presentation of a summary statement, for all reasonable out-of-pocket expenses (including but not limited to expenses of Credit Suisse’s due diligence investigation, fees of consultants engaged with your consent, syndication expenses, travel expenses and reasonable fees, disbursements and other charges of counsel), in each case incurred in connection with the Facilities and the preparation, negotiation and enforcement of this Commitment Letter, the Fee Letter, the definitive documentation for the Facilities and any ancillary documents or security arrangements in connection therewith. Notwithstanding any other provision of this Commitment Letter, no Indemnified Person shall be liable for any indirect, punitive, special or consequential damages in connection with its activities related to the Facilities.

 

8.

Sharing Information; Absence of Fiduciary Relationship; Affiliate Activities .

You acknowledge that Credit Suisse may be providing debt financing, equity capital or other services (including financial advisory services) to other companies in respect of which you may have conflicting interests regarding the transactions described herein or otherwise. We will not furnish confidential information obtained from you by virtue of the transactions contemplated by this Commitment Letter or our other relationships with you to other companies. You also acknowledge that we do not have any obligation to use in connection with the transactions contemplated by this Commitment Letter, or to furnish to you, confidential information obtained by us from other companies.

You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and Credit Suisse is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether Credit Suisse has advised or is advising you on other matters, (b) Credit Suisse, on the one hand, and you, on the other hand, have an arms-length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of Credit Suisse, (c) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter, and (d) you have been advised that Credit Suisse is engaged in a broad range of transactions that may involve interests that differ from your interests and that Credit Suisse has no obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship.

You further acknowledge that Credit Suisse is a full service securities firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, Credit Suisse may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, you, the Company and other companies with which you or the Company may have commercial or other relationships. With respect to any securities and/or financial instruments so held by

 

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Credit Suisse or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.

 

9.

Assignments; Amendments; Governing Law, Etc .

This Commitment Letter shall not be assignable by you without the prior written consent of CS and CS Securities (and any attempted assignment without such consent shall be null and void), is intended to be solely for the benefit of the parties hereto (and Indemnified Persons), and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto (and Indemnified Persons). CS may assign its commitment hereunder to any of its affiliates or any prospective Lender. Any such assignment to an affiliate will not relieve CS from any of its obligations hereunder unless and until such affiliate shall have funded the portion of the commitment so assigned. Any assignment to a prospective Lender shall be subject to your written consent (which shall not be unreasonably withheld) and shall release CS from the portion of its commitment hereunder so assigned; provided that, if such assignee Lender (other than a joint lead arranger or joint bookrunner, as contemplated above) fails to fund its commitment on the Closing Date, CS shall fund such commitment. Any and all obligations of, and services to be provided by, CS Securities or CS hereunder (including, without limitation, CS’s commitment) may be performed and any and all rights of CS Securities or CS hereunder may be exercised by or through any of their respective affiliates or branches. This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by CS Securities, CS and you. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original and all of which, when taken together, shall constitute one agreement. Delivery of an executed counterpart of a signature page of this Commitment Letter by facsimile transmission shall be effective as delivery of a manually executed counterpart hereof. Section headings used herein are for convenience of reference only, are not part of this Commitment Letter and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. You acknowledge that information and documents relating to the Facilities may be transmitted through SyndTrak, IntraLinks, the internet, e-mail, or similar electronic transmission systems, and that Credit Suisse shall not be liable for any damages arising from the unauthorized use by others of information or documents transmitted in such manner, except to the extent caused by Credit Suisse’s gross negligence or willful misconduct. With your consent (not to be unreasonably withheld or delayed), Credit Suisse may place advertisements in financial and other newspapers and periodicals or on a home page or similar place for dissemination of information on the Internet or worldwide web as it may choose, and circulate similar promotional materials, after the closing of the Transactions in the form of a “tombstone” or otherwise describing the names of CBRE and its affiliates (or any of them), and the amount, type and closing date of such Transactions, all at Credit Suisse’s expense. This Commitment Letter and the Fee Letter supersede all prior understandings, whether written or oral, between us with respect to the Facilities. THIS COMMITMENT LETTER SHALL BE GOVERNED

 

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BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK ; provided , however , that the interpretation of the definition of “Company MAE” (and whether or not a Company MAE has occurred) in this Commitment Letter, the Term Sheet and the other annexes hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.

 

10.

Jurisdiction .

Each of the parties hereto hereby irrevocably and unconditionally (a) submits, for itself and its property, to the non-exclusive jurisdiction of any New York State court or Federal court of the United States of Amer


 
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