Exhibit 2.02
EXECUTION COPY
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CREDIT SUISSE SECURITIES (USA) LLC
Eleven Madison Avenue
New York, NY 10010
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CREDIT SUISSE
Eleven Madison Avenue
New York, NY 10010
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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 ”.
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 ”).
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.
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.
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.
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
”).
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6.
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Conditions
Precedent .
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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.
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7.
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Indemnification; Expenses
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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.
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8.
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Sharing
Information; Absence of Fiduciary Relationship; Affiliate
Activities .
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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.
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9.
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Assignments;
Amendments; Governing Law, Etc .
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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.
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