UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 OR 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): December 9, 2014
CBRE GROUP, INC.
(Exact
name of registrant as specified in its charter)
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| Delaware |
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001-32205 |
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94-3391143 |
| (State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
Identification No.) |
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| 400 South Hope Street, 25th Floor
Los Angeles, California |
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90071 |
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(Zip Code) |
(213) 613-3333
Registrant’s Telephone Number, Including Area Code
Not Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12(b)) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
This Current Report on Form 8-K is filed by CBRE Group, Inc., a Delaware
corporation (the “Company”), in connection with the matters described herein.
| Item 1.01 |
Entry into a Material Definitive Agreement |
On December 9, 2014,
the Company, CBRE Services, Inc., a Delaware corporation and wholly-owned subsidiary of the Company (“Services”), and certain of Services’ subsidiaries, entered into an underwriting agreement (the “Underwriting Agreement”)
with Credit Suisse Securities (USA) LLC (the “Underwriter”), relating to the public offering of $125,000,000 in aggregate principal amount of Services’ 5.25% Senior Notes due 2025 (the “Tack-On Notes”). The Tack-On Notes
were issued as additional notes under the same Base Indenture (as defined below) as Services’ $300 million aggregate principal amount of 5.25% Senior Notes due 2025 issued on September 26, 2014 (the “Existing Notes” and, together
with the Tack-On Notes, the “Notes”), and were offered pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-178800) (as amended, the “Registration Statement”) filed with the Securities and Exchange
Commission (the “SEC”), as supplemented by the prospectus supplement, dated December 9, 2014. The Tack-On Notes have an interest rate of 5.25% per annum and were issued at a price equal to 101.5% of their face value plus interest
deemed to have accrued from September 26, 2014. The Tack-On Notes are guaranteed on a full and unconditional basis by the Company and the subsidiaries that guarantee the Existing Notes.
The Company intends to use the net proceeds from the offering of the Tack-On Notes to repay a portion of the term loans
outstanding under its senior secured credit facilities.
The Tack-On Notes are governed by an Indenture, dated as of
March 14, 2013 (the “Base Indenture”), among Services, the Company, certain of the subsidiary guarantors parties thereto and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended and supplemented by
the Second Supplemental Indenture, dated as of September 26, 2014 (the “Second Supplemental Indenture”), among Services, the Company, the subsidiary guarantors parties thereto and the Trustee and by the Third Supplemental Indenture,
dated as of December 12, 2014 (the “Third Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”), among Services, the Company, the subsidiary guarantors parties
thereto and the Trustee.
The Tack-On Notes will mature on March 15, 2025 and will bear interest at a rate of
5.25% per annum, payable semi-annually in arrears on March 15 and September 15 of each year, beginning on March 15, 2015. Interest on the Tack-On Notes will be deemed to have accrued from September 26, 2014.
Prior to December 15, 2024, Services will be entitled, at Services’ option, to redeem all or a portion of the Notes
at a redemption price equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest thereon to December 15,
2024 (not including any portions of payments of interest accrued as of the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the adjusted treasury rate, as
defined in the Indenture. In the case of each of clause (1) and (2), accrued and unpaid interest, if any, will be payable to, but excluding, the date of redemption. From and after December 15, 2024, Services will be entitled, at
Services’ option, to redeem all or a portion of the Notes at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. Upon the
occurrence of a change of control triggering event, as defined in the Indenture, Services must give holders of Notes an opportunity to sell to Services’ their notes at 101% of the principal amount of the Notes, plus accrued and unpaid interest,
if any, to the date of purchase.
The Company and each subsidiary of Services that guarantees Services’ specified
debt, as defined in the Indenture, fully and unconditionally guarantees the Notes on a senior unsecured basis. The guarantees by the guarantors of the Notes will rank pari passu to all existing and future senior indebtedness of the
guarantors.
The Notes are senior unsecured obligations of Services. The Notes rank equal in right of payment with
Services’ existing and future senior indebtedness and senior in right of payment to any of Services’ existing and future subordinated indebtedness. The Notes and guarantees will be effectively subordinated to all of the Services’
secured debt to the extent of the value of the assets securing such debt and structurally subordinated to all of the existing and future liabilities of our subsidiaries that do not guarantee the Notes.
The Indenture contains covenants that limit Services’ ability and the ability of certain of Services’ subsidiaries
to (i) create certain liens, (ii) enter into sale/leaseback transactions, and (iii) enter into mergers or consolidations. These covenants are subject to a number of important qualifications and exceptions contained in the Indenture.
Events of default under the Indenture include, among others, the following
(subject in certain cases to grace and cure periods): nonpayment, breach of covenants in the Indenture, default of payment of principal at final maturity, acceleration of certain indebtedness, failure to pay certain judgments and cessation of the
guarantees.
The foregoing description is not complete and is qualified in its entirety by reference to the complete text
of the Indenture. The Trustee, the Underwriter and their respective affiliates have provided in the past to the Company and its affiliates, and may provide to the Company and its affiliates from time to time in the future, certain commercial
banking, financial advisory, investment banking and other services in the ordinary course of business, for which they have received and may receive customary payments of interest, fees and commissions.
| Item 9.01 |
Financial Statements and Exhibits |
The following documents are attached as exhibits to this Current Report on Form 8-K:
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| Exhibit No. |
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Exhibit Description |
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| 1.1 |
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Underwriting Agreement, dated December 9, 2014, among CBRE Group, Inc., CBRE Services, Inc. and certain of its subsidiaries and Credit Suisse Securities (USA) LLC |
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| 4.1 |
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Third Supplemental Indenture, dated as of December 12, 2014, among CBRE Group, Inc., CBRE Services, Inc., certain other subsidiaries of CBRE Services, Inc. and Wells Fargo Bank, National Association, as trustee, for the additional
issuance of 5.25% Senior Notes due 2025 |
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| 5.1 |
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Legal Opinion of Simpson Thacher & Bartlett LLP |
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| 5.2 |
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Legal Opinion of Winstead PC |
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| 5.3 |
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Legal Opinion of Quarles & Brady LLP |
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| 5.4 |
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Legal Opinion of Dickinson Wright PLLC |
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| 5.5 |
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Legal Opinion of Wragge Lawrence Graham & Co LLP |
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| 12.1 |
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Statement re Computation of Ratios |
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| 23.1 |
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Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1) |
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| 23.2 |
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Consent of Winstead PC (included in Exhibit 5.2) |
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| 23.3 |
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Consent of Quarles & Brady LLP (included in Exhibit 5.3) |
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| 23.4 |
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Consent of Dickinson Wright PLLC (included in Exhibit 5.4) |
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| 23.5 |
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Consent of Wragge Lawrence Graham & Co LLP (included in Exhibit 5.5) |
“Safe Harbor” Statement Under the Private Securities Litigation Reform Act of 1995: This
current report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended and Section 21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements include,
but are not limited to, statements related to the anticipated use of proceeds from the offering of the Tack-On Notes. These forward-looking statements involve known and unknown risks, uncertainties and other factors discussed in the Company’s
filings with the SEC. Any forward-looking statements speak only as of the date of this current report and, except to the extent required by applicable securities laws, the Company expressly disclaims any obligation to update or revise any of them to
reflect actual results, any changes in expectations or any change in events. If the
Company does update one or more forward-looking statements, no inference should be drawn that it will make additional updates with respect to those or other forward-looking statements. For
additional information concerning risks, uncertainties and other factors that may cause actual results to differ from those anticipated in the forward-looking statements, and risks to the Company’s business in general, please refer to its SEC
filings, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2013, and its quarterly report on Form 10-Q for the quarterly period ended September 30, 2014.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to
be signed on its behalf by the undersigned hereunto duly authorized.
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| Date: December 12, 2014 |
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CBRE GROUP, INC. |
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By: |
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/s/ James R. Groch |
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James R. Groch |
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Chief Financial Officer |
EXHIBIT INDEX
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| Exhibit No. |
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Exhibit Description |
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| 1.1 |
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Underwriting Agreement, dated December 9, 2014, among CBRE Group, Inc., CBRE Services, Inc. and certain of its subsidiaries and Credit Suisse Securities (USA) LLC |
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| 4.1 |
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Third Supplemental Indenture, dated as of December 12, 2014, among CBRE Group, Inc., CBRE Services, Inc., certain other subsidiaries of CBRE Services, Inc. and Wells Fargo Bank, National Association, as trustee, for the additional
issuance of 5.25% Senior Notes due 2025 |
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| 5.1 |
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Legal Opinion of Simpson Thacher & Bartlett LLP |
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| 5.2 |
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Legal Opinion of Winstead PC |
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| 5.3 |
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Legal Opinion of Quarles & Brady LLP |
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| 5.4 |
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Legal Opinion of Dickinson Wright PLLC |
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| 5.5 |
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Legal Opinion of Wragge Lawrence Graham & Co LLP |
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| 12.1 |
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Statement re Computation of Ratios |
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| 23.1 |
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Consent of Simpson Thacher & Bartlett LLP (included in Exhibit 5.1) |
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| 23.2 |
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Consent of Winstead PC (included in Exhibit 5.2) |
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| 23.3 |
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Consent of Quarles & Brady LLP (included in Exhibit 5.3) |
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| 23.4 |
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Consent of Dickinson Wright PLLC (included in Exhibit 5.4) |
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| 23.5 |
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Consent of Wragge Lawrence Graham & Co LLP (included in Exhibit 5.5) |
Exhibit 1.1
EXECUTION VERSION
CBRE SERVICES, INC.
(a Delaware
corporation)
$125,000,000 Senior Notes due 2025
UNDERWRITING AGREEMENT
Dated: December 9, 2014
CBRE SERVICES, INC.
(a Delaware corporation)
$125,000,000 Senior Notes due 2025
UNDERWRITING AGREEMENT
December 9, 2014
Credit Suisse Securities
(USA) LLC
Eleven Madison Avenue
New York, New York 10010
Ladies and Gentlemen:
CBRE Services Inc., a Delaware corporation (the “Company”), confirms its agreement with Credit Suisse Securities
(USA) LLC (“Credit Suisse”) and each of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,”), for whom Credit Suisse is acting as representative (in such capacity, the “Representative”),
with respect to (i) the sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of the respective principal amounts set forth opposite their names in said Schedule A of $125,000,000 aggregate principal
amount of the Company’s 5.25% Senior Notes due 2025 (the “Notes”). The Securities (as defined below) are to be issued pursuant to an indenture dated as of March 14, 2013, among the Company, CBRE Group, Inc. (“Parent”),
certain of the other Guarantors (as defined below) and Wells Fargo Bank, National Association, as trustee (the “Trustee”) (the “Base Indenture”), as supplemented by the Second Supplemental Indenture thereto, dated as of
September 26, 2014, among the Company, Parent, the other Guarantors and the Trustee (the “Second Supplemental Indenture”) and the Third Supplemental Indenture thereto, dated as of December 12, 2014, among the Company, Parent, the
other Guarantors and the Trustee (the “Third Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”).
To the extent there are no additional Underwriters named in Schedule A hereto, all references to the Underwriters shall refer
solely to Credit Suisse, and the term “Underwriters” shall mean either the singular or plural, as the context requires.
The Company has previously issued $300,000,000 aggregate principal amount of 5.25% Senior Notes due 2025 (the
“Existing Notes”) under the Base Indenture and the Second Supplemental Indenture. The Notes constitute “Additional Notes” (as such term is defined in the Second Supplemental Indenture) under the Indenture. Except as
otherwise disclosed in the Registration Statement, the General Disclosure Package and the Prospectus (each, as defined below), the Notes and the Existing Notes will be treated as a single series for all purposes under the Indenture.
The payment of principal of, premium, if any, and interest on the Notes will be fully and unconditionally guaranteed on a
senior unsecured basis, jointly and severally by Parent and the other entities listed on the signature pages hereof as “Guarantors” (collectively, the “Guarantors”), pursuant to their guarantees (the “Guarantees”). The
Notes and the Guarantees are herein collectively referred to as the “Securities”.
The Company understands that the Underwriters propose to make a public offering
of the Securities as soon as the Representative deems advisable after this Underwriting Agreement (this “Agreement”) has been executed and delivered and the Indenture has been qualified under the Trust Indenture Act of 1939, as amended
(together with the rules and regulations promulgated thereunder, the “1939 Act”).
The Company has prepared and
filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (File No. 333-178800), including the Securities, under the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (the “1933 Act”). Such registration statement, as of any time, means such registration statement as amended by any post-effective amendments thereto to such time, the documents incorporated or deemed
to be incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of such time pursuant to Rule 430B under the 1933 Act (“Rule 430B”), is
referred to herein as the “Registration Statement”; provided, however, that the “Registration Statement” without reference to a time means such registration statement as amended by any post-effective amendments thereto as of the
time of the first contract of sale for the Securities, which time shall be considered the “new effective date” of such registration statement with respect to the Securities within the meaning of paragraph (f)(2) of Rule 430B, including the
exhibits and schedules thereto as of such time, the documents incorporated or deemed incorporated by reference therein at such time pursuant to Item 12 of Form S-3 under the 1933 Act and the documents otherwise deemed to be a part thereof as of
such time pursuant to the Rule 430B. Each preliminary prospectus used in connection with the offering of the Securities, including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, are collectively referred to herein as a “preliminary prospectus”. The final prospectus, in the form first furnished or made available to the Underwriters for use in connection with the offering of the Securities,
including the documents incorporated or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, are collectively referred to herein as the “Prospectus”. For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system or any successor system (“EDGAR”).
As used in this Agreement:
“Applicable Time” means 1:50 P.M., New York City time, on December 9, 2014, or such other time
as agreed by the Company and Credit Suisse.
“General Disclosure Package” means any Issuer
General Use Free Writing Prospectuses issued at or prior to the Applicable Time and the most recent preliminary prospectus (including any documents incorporated therein by reference) that is distributed to investors prior to the Applicable Time, all
considered together.
“Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 of the 1933 Act (“Rule 433”), including without limitation any “free writing prospectus” (as defined in Rule 405 of the 1933 Act (“Rule 405”)) relating to the Securities that is
(i) required to be filed with the Commission by the Company, (ii) a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, (iii) exempt
from filing with the Commission pursuant to Rule 433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission
or, if not
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required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g), or (iv) the Final Term Sheet (as defined below).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is
intended for general distribution to prospective investors, as evidenced by its being specified in Schedule B hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an
Issuer General Use Free Writing Prospectus.
All references in this Agreement to financial statements and schedules and
other information which is “contained”, “included” or “stated” (or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such
financial statements and schedules and other information incorporated or deemed incorporated by reference in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution and delivery of this
Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder (collectively, the “1934 Act”), incorporated or deemed to be incorporated by reference in the Registration Statement, the Preliminary Prospectus or the Prospectus, as the
case may be, at or after the execution and delivery of this Agreement.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company and the Guarantors. Each of the Company and the
Guarantors, jointly and severally, represents and warrants to each Underwriter as of the date hereof, the Applicable Time and the Closing Time (as defined below), and agrees with each Underwriter, as follows:
(i) Registration Statement and Prospectuses. The Company and the Guarantors meet the requirements for
use of Form S-3 under the 1933 Act. The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and no notice of objection of the Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401 under the 1933 Act has been received by the Company or any Guarantor. Each of the Registration Statement and any post-effective amendment thereto has become effective under the 1933 Act, which
automatic shelf registration statement became effective under Rule 462(e) under the 1933 Act. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no
order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the knowledge of any of the Company or the Guarantors,
contemplated.
Each of the Registration Statement and any post-effective amendment thereto, at the time of
its effectiveness and at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) under the 1933 Act, complied in all material respects with the requirements of the 1933 Act. Each preliminary prospectus, the Prospectus
and any amendment or supplement thereto, at the time each was filed with the Commission, complied in all material respects with the requirements of the 1933 Act. Each preliminary prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical in all material respects to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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The documents incorporated or deemed to be incorporated by
reference in the Registration Statement, any preliminary prospectus and the Prospectus, when they became effective or at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the
requirements of the 1934 Act.
(ii) Accurate Disclosure. Neither the Registration Statement nor any
amendment thereto, at its effective time or at the Closing Time, contained or will contain an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading. No preliminary prospectus (including any documents incorporated therein by reference), as of its date, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a
material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. As of the Applicable Time, neither (A) the General Disclosure Package nor (B) any individual
Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any amendment or supplement thereto (including any prospectus wrapper), as of its issue date, at the time of any filing with
the Commission pursuant to Rule 424(b) under the 1933 Act or at the Closing Time, included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, at the time the
Registration Statement became effective or when such documents incorporated by reference were filed with the Commission, as the case may be, when read together with the other information in the Registration Statement, the General Disclosure Package
or the Prospectus, as the case may be, did not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
The representations and warranties in this subsection shall not apply to (i) the Statement of Eligibility
(Form T-1) of the Trustee under the 1939 Act or (ii) statements in or omissions from the Registration Statement (or any amendment thereto), the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) made in
reliance upon and in conformity with written information furnished to the Company by any Underwriter through Credit Suisse expressly for use therein. For purposes of this Agreement, the only information so furnished shall be the information in the
first paragraph under the heading “Underwriting–Discounts” and the information in the first and second paragraphs under the heading “Underwriting–Short Positions” in each case contained in the Prospectus (collectively,
the “Underwriter Information”).
(iii) Issuer Free Writing Prospectuses. No Issuer Free
Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the Prospectus, including any document incorporated by reference therein, and any preliminary or other prospectus deemed to be a part
thereof that has not been superseded or modified. Any offer that is a written communication relating to the Securities made prior to the initial filing of the Registration Statement by the Company or any person acting on its behalf (within the
meaning, for this paragraph only, of Rule 163(c) of the 1933 Act) has been filed with the Commission in accordance with the exemption provided by Rule 163 under the 1933 Act (“Rule 163”) and otherwise complied with the requirements of Rule
163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.
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(iv) Well-Known Seasoned Issuer. (A) At the original
effectiveness of the Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated
report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company and the Guarantors or any person acting on their behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933
Act)) made any offer relating to the Securities in reliance on the exemption of Rule 163, and (D) as of the Applicable Time, each of the Company and the Guarantors was and is a “well-known seasoned issuer” (as defined in Rule 405).
(v) Company Not Ineligible Issuer. At the time of filing the Registration Statement and any
post-effective amendment thereto, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act) of the Securities and at the date hereof, none of
the Company and the Guarantors was or is an “ineligible issuer”, as defined in Rule 405, without taking account of any determination by the Commission pursuant to Rule 405 that it is not necessary that the Company or any Guarantor be
considered an ineligible issuer.
(vi) Independent Accountants. KPMG LLP, which expressed its
opinion with respect to the financial statements (which term as used in this Agreement includes the related notes thereto) and supporting schedules filed with the Commission and included in the Registration Statement, the General Disclosure Package
and the Prospectus, are independent registered public accountants within the meaning of Regulation S-X under the 1933 Act and the 1934 Act, and any non-audit services provided by KPMG LLP to the Company or any of the Guarantors have been approved by
the Audit Committee of the Board of Directors of the Company.
(vii) Financial Statements. The
financial statements included in the Registration Statement, the General Disclosure Package and the Prospectus present fairly the financial position of Parent and its consolidated subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and, except as otherwise disclosed in the General Disclosure Package, such financial statements have been prepared in conformity with generally accepted accounting principles as applied in the United States
(“GAAP”) applied on a consistent basis. The supporting schedules, if any, present fairly the information required to be stated therein.
(viii) No Material Adverse Change in Business. Except as otherwise disclosed in the Registration
Statement, the General Disclosure Package and the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus: (i) there has been no material
adverse change, nor any development or event involving a prospective material adverse change, in the financial condition, results of operations or business of Parent and its subsidiaries, taken as a whole (any such change, a “Material Adverse
Change”); (ii) Parent and its subsidiaries, considered as one entity, have not incurred any material liability or obligation, indirect, direct or contingent, not in the ordinary course of business nor entered into any material transaction
or agreement not in the ordinary course of business; and (iii) there has been no dividend or distribution of any kind declared, paid or made by the Company (except for dividends to Parent which are permitted under the Credit Agreement (as
defined below) or, except for dividends paid to the Company or other subsidiaries, any of its subsidiaries on any class of capital stock or repurchase or redemption by the Company or any of its subsidiaries of any class of capital stock.
(ix) Good Standing of the Company. The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with corporate
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power and authorizations to own its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus; 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 reasonably be expected to result in a material adverse effect on the financial condition, results of operations or business of the Company and its subsidiaries taken as a whole (a “Material Adverse
Effect”).
(x) Good Standing of Subsidiaries. Parent and each Significant Subsidiary (as
defined below) of the Company has been duly formed 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 (or equivalent) power and authority to own its properties and conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus; and Parent and each Significant 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 reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; all
of the issued and outstanding capital stock, ownership interests, or partnership interests, as the case may be, of Parent and each Significant Subsidiary of the Company has been duly authorized and validly issued and, in the case of capital stock,
is fully paid and nonassessable; and except as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus and for pledges in favor of Credit Suisse, Cayman Islands Branch, as collateral agent under the second amended
and restated credit agreement dated as of November 10, 2010, as amended as of March 28, 2013 (the “Credit Agreement”), among Parent, the Company, certain subsidiaries of the Company, the lenders and other agents named therein and
Credit Suisse, Cayman Islands Branch, as administrative agent and collateral agent (as such agreement has been amended through the date hereof), the capital stock, ownership interests, or partnership interests, as the case may be, of Parent and each
Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects. For purposes of this Agreement, “Significant Subsidiaries” has the meaning set forth in Rule 1-02 of
Regulation S-X, as promulgated by the Commission pursuant to the 1934 Act, and includes, without limitation, whether or not such subsidiaries would constitute a significant subsidiary pursuant to Rule 1-02 of Regulation S-X: (i) all of the
subsidiaries listed in Exhibit 21 to Parent’s Annual Report on Form 10-K for the year ended December 31, 2013 and (ii) CBRE Investors, Inc.
(xi) Capitalization. At September 30, 2014, on a consolidated basis, after giving pro forma effect
to the issuance and sale of the Securities pursuant hereto, Parent would have an authorized and outstanding capitalization as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under the caption
“Capitalization” (other than for subsequent issuances of capital stock, if any, pursuant to employee benefit plans described Registration Statement, the General Disclosure Package and the Prospectus, upon exercise of outstanding options or
warrants described in the Registration Statement, the General Disclosure Package and the Prospectus or pursuant to a share subscription agreement or any distribution agreements in effect on or prior to the date hereof). The common stock of Parent
(the “Common Stock”) conforms in all material respects to the description thereof in the Registration Statement, the General Disclosure Package and the Prospectus. All of the outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and have been issued in compliance with federal and state securities laws. None of the outstanding shares of
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Common Stock were issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of Parent. There are no authorized or
outstanding options, warrants, preemptive rights, rights of first refusal or other rights to purchase, or equity or debt securities convertible into or exchangeable or exercisable for, any capital stock of Parent or any of its subsidiaries other
than those accurately described in the Registration Statement, the General Disclosure Package and the Prospectus. The description of Parent’s stock option, stock bonus and other stock plans or arrangements, and the options or other rights
granted thereunder, in the Registration Statement, the General Disclosure Package and the Prospectus accurately and fairly describes such plans, arrangements, options and rights.
(xii) Authorization of Agreement. This Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company and the Guarantors.
(xiii) Authorization of the
Indenture. (i) Each of the Base Indenture and the Second Supplemental Indenture has been duly authorized by the Company and the Guarantors and constitutes a valid and binding agreement of the Company and the Guarantors, enforceable against
the Company and the Guarantors in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles and (ii) the Third Supplemental Indenture has been duly authorized by the Company and the Guarantors and at the Closing Time will have been duly executed and delivered by the Company and
the Guarantors and will constitute a valid and binding agreement of the Company and the Guarantors, enforceable against the Company and the Guarantors in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles.
(xiv) Authorization of the Securities. The Notes to be purchased by the Underwriters from the Company
are in the form contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Time, will have been duly executed by the Company and, when authenticated in the manner
provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding agreements of the Company, enforceable against the Company in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles and will be entitled to the
benefits of the Indenture. The Guarantees of the Notes are in the respective forms contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture by the Guarantors and, at the Closing
Time, the Guarantees of the Notes will have been duly executed by each of the Guarantors and, when the Notes have been authenticated in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will
constitute valid and binding agreements of the Guarantors, enforceable against the Guarantors in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles and will be entitled to the benefits of the Indenture.
(xv) Description of the Securities and the Indenture. The Securities and the Indenture will conform in
all material respects to the respective statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus and will be in
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substantially the respective forms filed or incorporated by reference, as the case may be, as exhibits to the Registration Statement.
(xvi) Registration Rights. There are no persons with registration rights or other similar rights to have
any securities registered for sale pursuant to the Registration Statement or otherwise registered for sale or sold by the Company or any Guarantor under the 1933 Act pursuant to this Agreement.
(xvii) Non-Contravention of Existing Instruments. None of Parent, the Company or any of the Significant
Subsidiaries 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
Parent, the Company, or any of the Significant Subsidiaries or any of their properties, (ii) any agreement or instrument to which Parent, the Company or any of the Significant Subsidiaries is a party or by which Parent, the Company or any of
the Significant Subsidiaries is bound or to which any of the properties of Parent, the Company or the Significant Subsidiaries is subject or (iii) the charter, by-laws or similar governing document of the Company or any of Parent, the
Significant Subsidiaries (each an “Existing Instrument”), except with respect to clauses (i) and (ii) for any breaches, violations or defaults that would not have a Material Adverse Effect. Assuming the accuracy of the
representations of the other parties hereto and the performance by those parties of their agreements herein, the execution, delivery and performance of the Base Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture and this
Agreement, and the issuance and sale of the Securities and compliance with the terms and provisions thereof will not result in a breach or violation of any of the terms and provisions of, or constitute a default under, (A) any statute, rule,
regulation or order of any governmental agency or body or any court, domestic or foreign, that has jurisdiction over Parent or any of its subsidiaries or any of their properties, (B) any agreement or instrument to which Parent, the Company or
any of the Significant Subsidiaries is a party or by which Parent, the Company or any of the Significant Subsidiaries is bound or to which any of the properties of the Company or the Significant Subsidiaries is subject or (C) the charter,
by-laws or similar governing documents of Parent, the Company or any other Guarantor, except, with respect to clauses (A) and (B), where such breach, violation or default would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect or would materially and adversely affect the ability of Parent, the Company or any other Guarantor to perform their respective obligations under this Agreement.
(xviii) Absence of Labor Dispute. No labor disputes with the employees of Parent or any of its
subsidiaries exist or, to the knowledge of the Company, are imminent that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(xix) Absence of Proceedings. Except as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, there are no pending actions, suits or proceedings against or affecting Parent, any of its subsidiaries or any of their respective properties that (i) if determined adversely to Parent or any of its subsidiaries,
would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (ii) would materially and adversely affect the ability of Parent or its subsidiaries to perform their respective obligations under this Agreement
or (iii) are otherwise material in the context of the sale of the Securities; and no such actions, suits or proceedings are, to the knowledge of the Company or the Guarantors, threatened or contemplated.
(xx) Absence of Further Requirements. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any governmental entity is necessary
8
or required for the performance by the Company and the Guarantors of their obligations hereunder, in connection with the offering, issuance or sale of the Securities hereunder or the consummation
of the transactions contemplated by this Agreement, except such as have been already obtained or as may be required under the 1933 Act, state securities laws or the rules of Financial Industry Regulatory Authority, Inc. (“FINRA”).
(xxi) Possession of Licenses and Permits. Parent, the Company and the Significant 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 Parent, the Company or any of the Significant Subsidiaries, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(xxii) Title to Property. Except as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, Parent and its subsidiaries have good and valid title to all real properties and all other properties and assets owned by them that are material to Parent 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 other than liens, encumbrances and defects permitted by the Credit Agreement; and except
as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, Parent 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.
(xxiii) Possession of Intellectual Property. Parent 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 Parent
or any of its subsidiaries, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(xxiv) Environmental Laws. Except as disclosed in the General Disclosure Package, none of Parent or 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 reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim.
(xxv) Accounting Controls and Disclosure Controls. Each of Parent and its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial
9
statements in conformity with GAAP and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization;
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences and (v) the interactive data in eXtensible Business Reporting Language
incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the Commission’s rules and
guidelines applicable thereto. Parent maintains disclosure controls and procedures (as such term is defined in Rule 13a-15 under the 1934 Act) that are designed to ensure that information required to be disclosed by Parent in the reports that it
files or submits under the 1934 Act is recorded, processed, summarized and reported, within the time periods specified in the rules and forms of the Commission, including, without limitation, controls and procedures designed to ensure that
information required to be disclosed by Parent in the reports that it files or submits under the 1934 Act is accumulated and communicated to Parent’s management, including its principal executive officer or officers and its principal financial
officer or officers, as appropriate to allow timely decisions regarding required disclosure.
(xxvi)
Compliance with the Sarbanes-Oxley Act. There is and has been no failure which is continuing on the part of Parent, the Company and the Guarantors and any of their directors or officers, in their capacities as such, to comply with the
provisions of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith.
(xxvii) Payment of Taxes. Parent and its consolidated subsidiaries have filed all necessary federal,
state and foreign income and franchise tax returns or have properly requested extensions thereof and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty levied against
any of them except (i) as may be being contested in good faith and by appropriate proceedings or (ii) as would not have a Material Adverse Effect. Parent has made adequate charges, accruals and reserves in the applicable financial
statements referred to in Section 1(vii) hereof in respect of all federal, state and foreign income and franchise taxes for all periods as to which the tax liability of Parent or any of its consolidated subsidiaries has not been finally
determined.
(xxviii) Insurance. Except as otherwise disclosed in the Registration Statement, the
General Disclosure Package and the Prospectus, each of Parent and its subsidiaries are insured by recognized, financially sound institutions with policies in such amounts and with such deductibles and covering such risks as are generally deemed
adequate and customary for their businesses including, without limitation, policies covering real and personal property owned or leased by the Company and its subsidiaries against theft, damage, destruction, acts of vandalism and earthquakes. Parent
has no reason to believe that it or any subsidiary will not be able (i) to renew its existing insurance coverage as and when such policies expire or (ii) to obtain comparable coverage from similar institutions as may be necessary or
appropriate to conduct its business as now conducted and at a cost that would not result in a Material Adverse Change. Neither Parent nor any subsidiary has been denied any insurance coverage which it has sought or for which it has applied, where
such denial would be material to Parent and its subsidiaries, taken as a whole.
(xxix) Investment
Company Act. Each of the Company and the Guarantors is not, and after giving effect to the offering and sale of the Securities as described in the Registration Statement, General Disclosure Package and the Prospectus, will not be an
“investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).
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(xxx) Absence of Manipulation. None of the Company or any
of the Guarantors has taken or will take, directly or indirectly, any action designed to or that might be reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company to facilitate the sale or
resale of the Securities.
(xxxi) Money Laundering Laws. The operations of Parent and its
subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no
action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving Parent or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(xxxii) Trade Sanctions Laws. None of (i) Parent, its subsidiaries or any director
or officer, or, to the knowledge of the Company, any agent, employee or affiliate of Parent or any of its subsidiaries is the subject of any sanctions adopted by the European Union, any U.S. sanctions administered by the Office of Foreign Assets
Control of the U.S. Treasury Department, the U.S. Department of State, Her Majesty’s Treasury, the United Nations Security Council, or any other relevant sanctions authority (any such sanctions, “Sanctions” and such sanctions
authorities, the “Sanctions Authorities”) or (ii) Parent or any of its subsidiaries is located, organized or resident in a country or territory that is, or whose government is, the subject of Sanctions, including, without limitation,
at the time of this Agreement, Cuba, Iran, North Korea, Sudan and Syria. Parent and its subsidiaries have instituted, maintain and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure, and which
are reasonably expected to ensure, compliance with all of the relevant regulations adopted by the Sanctions Authorities. The Company will not directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity, (i) to fund any activities or business of or with any person or entity, or in any country or territory, that, at the time of such financing, is, or whose
government is, the subject of Sanctions or (ii) in any other manner that would result in a violation of the relevant regulations adopted by the Sanctions Authorities by any person or entity (including any Underwriter).
(xxxiii) Anti-Bribery and Anti-Corruption Laws. None of Parent, its subsidiaries or any director or
officer, or, to the knowledge of the Company, any agent, employee or affiliate of Parent or any of its subsidiaries is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the FCPA, including,
without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give,
or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the
FCPA. The Company and Parent, its subsidiaries, directors and officers and, to the Company’s knowledge, its affiliates have conducted their businesses in compliance with the Anti-Bribery and Anti-Corruption Laws and have instituted, maintain
and enforce, and will continue to maintain and enforce, policies and procedures designed to promote and ensure, and which are reasonably expected to continue to ensure, continued compliance with the Anti-Bribery and Anti-Corruption Laws.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder. “Anti-Bribery and Anti-Corruption Laws” means the OECD Convention, the Bribery Act 2010 and the anti-bribery
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and anti-corruption laws of any jurisdiction to which Parent or any of its subsidiaries are, or have been, subject and in each case any related rules, orders regulations and guidance.
(xxxiv) Regulations T, U, X. Neither the Company nor any Guarantor nor any of their respective
subsidiaries nor any agent thereof acting on their behalf has taken, and none of them will take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board
of Governors of the Federal Reserve System.
(xxxv) ERISA Compliance. Except, in each case, as would
not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, the minimum funding standard under Section 302 of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (“ERISA”), has been satisfied by each “pension plan” (as defined in Section 3(2) of ERISA) which has been established or maintained by Parent and/or one or more of its subsidiaries, and
the trust forming part of each such plan, which is intended to be qualified under Section 401 of the Internal Revenue Code of 1986, as amended (the “Code”), is so qualified; each of Parent and its subsidiaries has fulfilled its
material obligations, if any, under Section 515 of ERISA; each welfare plan established or maintained by Parent and/or one or more of its subsidiaries is in compliance in all material respects with the currently applicable provisions of ERISA;
and, with respect to the termination of, or withdrawal from, any “pension plan”, neither the Company nor any of its subsidiaries has incurred or could reasonably be expected to incur any material withdrawal liability under Sections 4201,
4062, 4063, or 4064 of ERISA, or any other such liability under Title IV of ERISA.
(xxxvi) Related
Party Transactions. The Company is not aware of any relationship, direct or indirect, that exists between or among any of the Company, the Guarantors or any of their Affiliates, on the one hand, and any director, officer, member, stockholder,
customer or supplier of the Company, the Guarantors or any of its Affiliates, on the other hand, which is required by the 1933 Act to be disclosed in the Registration Statement, the General Disclosure Package and the Prospectus. Except as otherwise
disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there are no outstanding loans, advances (except advances for business expenses in the ordinary course of business) or guarantees of indebtedness by the
Company, the Guarantors or any of their Affiliates to or for the benefit of any of the executive officers or directors of the Company, the Guarantors or any of their Affiliates or any of their respective family members.
(xxxvii) No Default in the Credit Agreement. No event of default exists under the Credit Agreement.
(xxxviii) Stock Options. Except as disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus, with respect to the stock options granted pursuant to the stock-based compensation plans of Parent and its subsidiaries, (i) each grant of such stock option was duly authorized no later than the date on which the
grant of such stock option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of Parent or the relevant subsidiary of Parent (or a duly constituted and authorized
committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto, (ii) each such grant was
made in accordance with the terms of the stock-based compensation plans of Parent and its subsidiaries, the 1934 Act and all other applicable laws and regulatory rules or requirements and (iii) each such grant was properly accounted for in
accordance with GAAP in the consolidated financial statements (including the related notes) of
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Parent and disclosed in Parent’s filings with the Commission in accordance with the 1934 Act. Neither Parent nor any of its subsidiaries has knowingly granted, and there is no and has been
no policy or practice of Parent or any of its subsidiaries of granting, such stock options prior to, or otherwise coordinating the grant of such stock options with, the release or other public announcement of material information regarding Parent or
its subsidiaries or their results of operations or prospects.
(xxxix) No Finder’s Fee. Except
as disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, there are no contracts, agreements or understandings between the Company or any Guarantor and any person that would give rise to a valid claim against the
Company, any Guarantor or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering.
(b) Officer’s Certificates. Any certificate signed by any officer of the Company or any Guarantor delivered
to the Representative or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein contained and subject to the terms and
conditions herein set forth, each of the Company and the Guarantors agrees to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase from the Company, at the price set forth in Schedule A, the aggregate
principal amount of Securities set forth opposite its name in Schedule A, subject to such adjustments as Credit Suisse in its discretion shall make to ensure that any sales or purchases are in authorized denominations.
(b) Payment. Payment of the purchase price for, and delivery of certificates for, the Securities shall be made
at the offices of Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 8th Avenue, New York, NY 10019, or at such other place as shall be agreed upon by the Representative and the Company, at 9:00 A.M. (New York City time) on the third
(or fourth, if the pricing occurs after 4:30 P.M. (New York City time) on any given day) business day after the date hereof, or such other time not later than ten business days after such date as shall be agreed upon by the Representative and the
Company (such time of payment and delivery being herein called the “Closing Time” and such date of payment and delivery being herein called the “Closing Date”).
Payment shall be made to the Company by wire transfer of immediately available funds to a bank account designated by the
Company, against delivery to the Representative for the respective accounts of the Underwriters of certificates for the Securities to be purchased by them. It is understood that each Underwriter has authorized the Representative, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the Securities, which it has agreed to purchase. Credit Suisse, individually and not as representative of the Underwriters, may (but shall not be obligated to) make payment
of the purchase price for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, as the case may be, but such payment shall not relieve such Underwriter from its obligations hereunder.
SECTION 3. Covenants of the Company and the Guarantors. The Company and the Guarantors, jointly and severally, covenant
with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430B, and will promptly notify the Representative, (i) when any post-effective amendment to the Registration Statement relating to the
13
Securities has become effective or any amendment or supplement to the Prospectus has been filed, (ii) of the receipt of any comments from the Commission relating to the Prospectus or the
Securities, (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus, including any document incorporated by reference therein or for additional information, in each
case relating to the Prospectus or the Securities, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective amendment or of any order preventing or suspending the
use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes or of any
examination pursuant to Section 8(d) or 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the
Securities. The Company will effect all filings required under Rule 424(b), in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, it will promptly file such prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order, prevention or suspension and, if any such order is issued, to obtain the lifting thereof at the earliest possible moment. The Company shall pay the required Commission filing fees relating to the Securities within the
time required by Rule 456(b)(1)(i) under the 1933 Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the 1933 Act (including, if applicable, by updating the “Calculation of Registration
Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)).
(b) Continued Compliance with Securities Laws. The Company will comply with the 1933 Act and the 1934 Act so as
to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus. If at any time when a prospectus relating to the Securities is
(or, but for the exception afforded by Rule 172 of the 1933 Act (“Rule 172”), would be) required by the 1933 Act to be delivered in connection with sales of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters or for the Company, to (i) amend the Registration Statement in order that the Registration Statement will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) amend or supplement the General Disclosure Package or the Prospectus in order that the General Disclosure Package or
the Prospectus, as the case may be, will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser or (iii) amend the Registration Statement or amend or supplement the General Disclosure Package or the Prospectus, as the case may be, in order to comply with the requirements of the 1933 Act, the Company will
promptly (A) give the Representative notice of such event, (B) prepare any amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the General Disclosure Package or the
Prospectus comply with such requirements and, a reasonable amount of time prior to any proposed filing or use, furnish the Representative with copies of any such amendment or supplement and (C) file with the Commission any such amendment or
supplement; provided that the Company shall not file or use any such amendment or supplement to which the Representative or counsel for the Underwriters shall reasonably object. The Company will furnish to the Underwriters such number of copies of
such amendment or supplement as the Underwriters may reasonably request. The Company has given the Representative notice of any filings made pursuant to the 1934 Act within 48 hours prior to the Applicable Time; the Company will give the
Representative notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish the Representative with copies of any such documents a reasonable amount of time prior to such proposed
14
filing, as the case may be, and will not file or use any such document to which the Representative or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The Company has furnished or will deliver to the Representative and
counsel for the Underwriters, without charge, conformed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed
to be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representative, without charge, a conformed copy of the Registration Statement as originally filed and each
amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical in all material respects to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge, as many copies of
each preliminary prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, without charge, during the period
when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical in all material respects to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent permitted by Regulation S-T.
(e) Blue Sky
Qualifications. The Company and the Guarantors will use their commercially reasonable best efforts, in cooperation with the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Representative may designate and to maintain such qualifications in effect so long as required to complete the distribution of the Securities; provided, however, that neither the Company nor any
Guarantor shall be obligated to file any general consent to service of process or to qualify as a foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation in respect of
doing business in any jurisdiction in which it is not otherwise so subject.
(f) Rule 158. The
Company will, in the time and manner required by the Indenture, file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders an earnings statement for the purposes of, and to provide to the
Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(g)
Use of Proceeds. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of
Proceeds”.
(h) Restriction on Sale of Securities. During a period of 30 days from the date of
the Prospectus, the Company will not, without the prior written consent of Credit Suisse (which consent may be withheld at the sole discretion of Credit Suisse, directly or indirectly, issue, sell, offer to sell, contract to sell or grant any option
to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the 1934 Act, or otherwise dispose of any debt securities of the Company or securities exchangeable for or convertible into
debt securities of the Company other than the Securities to be sold hereunder.
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(i) Reporting Requirements. The Company, during the period when a
Prospectus relating to the Securities is (or, but for the exception afforded by Rule 172, would be) required to be delivered under the 1933 Act, will file all documents required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act.
(j) Final Term Sheet; Issuer Free Writing Prospectuses. The
Company will prepare a final term sheet (the “Final Term Sheet”), in the form set forth in Schedule C hereto, reflecting the final terms of the Securities, in form and substance satisfactory to the Representative, and shall file such Final
Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 prior to the close of business two business days after the date hereof; provided that the Company shall furnish the Representative with copies of any such Final Term
Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which the Representative or counsel to the Underwriters shall reasonably object. The Company agrees that, unless it obtains the prior
written consent of the Representative, it will not make any offer relating to the Securities that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus,” or a portion thereof,
required to be filed by the Company with the Commission or retained by the Company under Rule 433; provided that the Representative will be deemed to have consented to the Issuer Free Writing Prospectuses specified in Schedule B hereto and any
“road show that is a written communication” within the meaning of Rule 433(d)(8)(i) that has been reviewed by the Representative. The Company represents that it has treated or agrees that it will treat each such free writing prospectus
consented to, or deemed consented to, by the Representative as an “issuer free writing prospectus,” as defined in Rule 433, and that it has complied and will comply with the applicable requirements of Rule 433 with respect thereto,
including timely filing with the Commission where required, legending and record keeping. If at any time following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free
Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, any preliminary prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, the Company will promptly notify the Representative and will promptly amend or
supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission.
SECTION 4. Payment of Expenses.
(a) Expenses. The Company and the Guarantors, jointly and severally, will pay or cause to be paid all expenses
incident to the performance of their obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and each amendment
thereto, (ii) the preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus and any amendments or supplements thereto and any costs associated with
electronic delivery of any of the foregoing by the Underwriters to investors, (iii) the preparation, issuance and delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel, accountants
and other advisors, (v) the qualification of the Securities under securities laws in accordance with the provisions of Section 3(e) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky Survey and any supplement thereto, (vi) all fees and expenses of the Trustee and any expenses of any transfer agent or registrar for the Securities, (vii) the
costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the Securities, including without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations and half of the cost of any chartered airplane or other transportation, (viii) if any, the filing fees incident to, and the
16
reasonable fees and disbursements of counsel to the Underwriters in connection with, the review by FINRA of the terms of the sale of the Securities, (ix) the costs and expenses (including,
without limitation, any damages or other amounts payable in connection with legal or contractual liability) associated with the reforming of any contracts for sale of the Securities made by the Underwriters caused by a breach of the representation
contained in the third sentence of Section 1(a)(ii) and (x) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Securities to the Underwriters. Except as otherwise provided in this Agreement,
the Underwriters and Representative shall pay their own expenses, including the fees and disbursements of their counsel.
(b) Termination of Agreement. If this Agreement is terminated by the Representative in accordance with the
provisions of Section 5, Section 9(a)(i) or Section 9(a)(iii) hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company and the Guarantors contained herein or in certificates of any officer of the Company, the Guarantors or any of their subsidiaries, to the
performance by the Company and the Guarantors of their covenants and other obligations hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement has become effective and at the Closing
Time no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has
been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, contemplated; and the Company has complied with each request (if any) from the Commission for additional information.
The Company shall have paid the required Commission filing fees relating to the Securities within the time period required by Rule 456(1)(i) under the 1933 Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and
457(r) under the 1933 Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a
prospectus filed pursuant to Rule 424(b).
(b) Opinion of Counsel for Company. At the Closing Time,
the Representative shall have received the favorable opinion and negative assurance letter, dated the Closing Date, of Simpson Thacher & Bartlett LLP, counsel for the Company, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters.
(c) Opinion of General Counsel for Company. At the Closing Time, the Representative shall have received the
favorable opinion, dated the Closing Date, of Laurence H. Midler, counsel for the Company, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other
Underwriters.
(d) Opinion of U.K. Counsel for Company. At the Closing Time, the Representative shall
have received the favorable opinion, dated the Closing Date, of Wragge Lawrence Graham & Co LLP, counsel for CB/TCC Global Holdings Limited, in form and substance reasonably satisfactory to counsel for the Underwriters, together with signed
or reproduced copies of such letter for each of the other Underwriters.
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(e) Opinion of Counsel for Underwriters. At the Closing Time, the
Representative shall have received the favorable opinion and negative assurance letter, dated the Closing Date, of Cravath, Swaine & Moore LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each
of the other Underwriters, with respect to any matters as the Representative may reasonably require.
(f)
Officers’ Certificate. The Representative shall have received a certificate of the Chief Executive Officer or the President of the Company and of the chief financial or chief accounting officer of the Company, dated the Closing Date, to
the effect that (i) there has been no Material Adverse Change, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing
Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Time and (iv) no stop order suspending the effectiveness of the Registration
Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their
knowledge, contemplated.
(g) Accountant’s Comfort Letter. At the time of the execution of this
Agreement, the Representative shall have received from KPMG LLP a letter, dated as of the date hereof, in form and substance satisfactory to the Representative, together with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the
Registration Statement, the General Disclosure Package and the Prospectus.
(h) Bring-down Comfort
Letter. At the Closing Time, the Representative shall have received from KPMG LLP a letter, dated as of the Closing Date, to the effect that they reaffirm the statements made in the letter furnished pursuant to subsection (e) of this
Section 5, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date.
(i) Maintenance of Rating. Since the execution of this Agreement, there shall not have been any decrease in or
withdrawal of the rating of any securities of the Company or any of its subsidiaries by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the 1933 Act) or any notice given of any
intended or potential decrease in or withdrawal of any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(j) Material Adverse Change. In the judgment of the Representative there shall not have occurred any Material
Adverse Change.
(k) Additional Documents. The Company and the Guarantors shall have entered into the
Base Indenture and the Second Supplemental Indenture and, at the Closing Time, the Company and the Guarantors shall have entered into the Third Supplemental Indenture and the Notes will have been executed and authenticated in the manner provided for
in the Indenture, and the Underwriters shall have received executed counterparts of each thereof. At the Closing Time counsel for the Underwriters shall have been furnished with such documents and opinions as they may reasonably require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the fulfillment of any of the conditions, herein contained;
and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be reasonably satisfactory in form and substance to the Representative and counsel for the Underwriters.
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(l) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to the Company at any time at or prior to the Closing Time, as the case may be, and such termination shall
be without liability of any party to any other party except as provided in Section 4 and except that Sections 1, 6, 7, 8, 14, 15 and 16 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. Each of the Company and the Guarantors, jointly and severally, agrees to
indemnify and hold harmless each Underwriter, its affiliates (as such term is defined in Rule 501(b) under the 1933 Act (each, an “Affiliate”)), its selling agents and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and
all losses, liabilities, claims, damages and expenses whatsoever, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including any
information deemed to be a part thereof pursuant to Rule 430B, or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included (A) in any preliminary prospectus, any Issuer Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) or (B) in
any materials or information provided to investors by, or with the approval of, the Company in connection with the marketing of the offering of the Securities (“Marketing Materials”), including any roadshow or investor presentations made
to investors by the Company (whether in person or electronically), or the omission or alleged omission in any preliminary prospectus, Issuer Free Writing Prospectus, Prospectus or in any Marketing Materials of a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages and expenses whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written consent of the Company;
(iii) against any and all expenses whatsoever, as incurred (including the fees and disbursements of counsel
chosen by Credit Suisse), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B, the General Disclosure Package or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
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(b) Indemnification of the Company, the Guarantors, Directors and
Officers. Each Underwriter severally agrees to indemnify and hold harmless the Company, each Guarantor, their directors, each of their officers who signed the Registration Statement, and each person, if any, who controls the Company or any
Guarantor within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section 6, as
incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the Registration Statement (or any amendment thereto), including any information deemed to be a part thereof pursuant to Rule 430B,
the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c) Actions against Parties; Notification. Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a) above, counsel to the indemnified parties shall be selected by Credit Suisse, and, in the case of parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An
indemnifying party may participate at its own expense in the defense of any such action; provided, however, that counsel to the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such indemnifying party shall have received notice of the terms of such settlement at least 30 days
prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is for any reason unavailable to
or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other
hand, from the offering of the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative
20
benefits referred to in clause (i) above but also the relative fault of the Company and the Guarantors, on the one hand, and of the Underwriters, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Guarantors, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Securities pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the Guarantors, on the one hand, and the total underwriting discount received by the Underwriters, on the other hand, in each case as set forth on the cover of the Prospectus, bear to the aggregate initial public offering
price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the
Guarantors, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company and the Guarantors or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to
this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in
this Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the underwriting commissions received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this
Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s Affiliates and selling agents shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as the Company. The Underwriters’ respective obligations to contribute pursuant to this Section 7 are several in proportion to the aggregate principal amount of
Securities set forth opposite their respective names in Schedule A hereto and not joint.
SECTION 8. Representations,
Warranties and Agreements to Survive. All representations, warranties and agreements contained in this Agreement or in certificates of officers of Parent or any of its subsidiaries submitted pursuant hereto, shall remain operative and in full
force and effect regardless of (i) any investigation made by or on behalf of any Underwriter or its Affiliates or selling agents, any person
21
controlling any Underwriter, its officers or directors or any person controlling the Company and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
(a) Termination. The Representative may terminate this Agreement, by notice to the Company, at any time at or prior to
the Closing Time (i) if there has been, in the judgment of the Representative, since the time of execution of this Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure
Package or the Prospectus, any Material Adverse Change, (ii) if there has occurred any material adverse change in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable or inadvisable to proceed with the completion of the offering or to enforce contracts for the sale of the Securities, (iii) if trading in any securities of the Company or Parent has been suspended or materially
limited by the Commission or the New York Stock Exchange, (iv) if trading generally on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq Global Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission, FINRA or any other governmental authority, (v) a material disruption has occurred in commercial banking
or securities settlement or clearance services in the United States or with respect to Clearstream or Euroclear systems in Europe or (vi) if a banking moratorium has been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination shall be without
liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections 1, 6, 7, 8, 14, 15 and 16 shall survive such termination and remain in full force and effect.
SECTION 10. [Intentionally omitted].
SECTION 11. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have
been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to Credit Suisse at Eleven Madison Avenue, New York, New York 10010, Attention: Legal and Compliance Department, with a
copy to Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth Avenue, New York, NY 10019, Fax No.: (212) 474-3700, Attention: William J. Whelan, III; notices to the Company or a Guarantor shall be directed to it at 400 South Hope
Street, 25th Floor, Los Angeles, CA 90071, Fax No.: (213) 613-3005, Attention: General Counsel, with a copy to Simpson Thacher & Bartlett LLP, 2475 Hanover Street, Palo Alto, CA 94304, Fax No.: (650) 251-5002, Attention: William
B. Brentani, Esq.
SECTION 12. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that
(a) the purchase and sale of the Securities pursuant to this Agreement, including the determination of the initial public offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction
between the Company, on the one hand, and the several Underwriters, on the other hand, (b) in connection with the offering of the Securities and the process leading thereto, each Underwriter is and has been acting solely as a principal and is
not the agent or fiduciary of the Company, any of its subsidiaries or their respective stockholders, creditors, employees or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offering of the Securities or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its subsidiaries on other matters)
22
and no Underwriter has any obligation to the Company with respect to the offering of the Securities except the obligations expressly set forth in this Agreement, (d) the Underwriters and
their respective affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Company and (e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering of the Securities and the Company has consulted its own respective legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 13. Parties. This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the
Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. Trial by Jury. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) and each of the Underwriters hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
SECTION 15. GOVERNING LAW. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE
ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 16. Consent to Jurisdiction; Waiver of Immunity. Any legal suit, action or proceeding arising out of or based
upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of New York, Borough of Manhattan
or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “Specified Courts”), and each party irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such court (a “Related Judgment”), as to which such jurisdiction is non-exclusive) of such courts in any such suit, action or proceeding. Service of any process,
summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such suit, action or other proceeding brought in
any such court has been brought in an inconvenient forum. CB/TCC Global Holdings Limited irrevocably appoints CBRE Services, Inc. as its agent to receive service of process or other legal summons for purposes of any such suit, action or proceeding
that may be instituted in any state or federal court in the City and County of New York. With respect to any Related Proceeding, each party irrevocably waives, to the fullest extent permitted by applicable law, all immunity (whether on the basis of
sovereignty or otherwise) from jurisdiction, service of process, attachment (both before and after judgment) and execution to which it might otherwise be entitled in the Specified Courts, and with respect to any Related Judgment, each party waives
any such immunity in the Specified Courts or any other court of competent jurisdiction, and will not raise or claim or cause to be pleaded any such immunity at or in respect of any such Related Proceeding or Related
23
Judgment, including, without limitation, any immunity pursuant to the United States Foreign Sovereign Immunities Act of 1976, as amended.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. 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.
SECTION 19. Effect of Headings. The Section headings herein are for convenience only and shall not affect the
construction hereof.
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If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
|
|
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| Very truly yours, |
|
| CBRE SERVICES, INC. |
| CBRE GROUP, INC. |
|
|
| By: |
|
/s/ James R. Groch |
|
|
Name: James R. Groch |
|
|
Title: Chief Financial Officer |
[Signature Page to the
Underwriting Agreement]
|
|
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| CBRE CONSULTING, INC. |
| CBRE GLOBAL INVESTORS, INC. |
| CBRE GLOBAL INVESTORS, LLC |
| CBRE, INC. |
| CB/TCC HOLDINGS LLC |
| CB/TCC, LLC |
| CBRE CAPITAL MARKETS OF TEXAS, LP |
| CBRE CAPITAL MARKETS, INC. |
| CBRE CLARION CRA HOLDINGS, INC. |
| CBRE CLARION REI HOLDING, INC. |
| CBRE GOVERNMENT SERVICES, LLC |
| CBRE BUSINESS LENDING, INC. |
| CBRE PARTNER, INC. |
| CBRE TECHNICAL SERVICES, LLC |
| CBRE/LJM MORTGAGE COMPANY, L.L.C. |
| CBRE/LJM-NEVADA, INC. |
| INSIGNIA/ESG CAPITAL CORPORATION |
| THE POLACHECK COMPANY, INC. |
| TRAMMELL CROW COMPANY, LLC |
|
|
| By: |
|
/s/ Debera Fan |
|
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Name: Debera Fan |
|
|
Title: Senior Vice President & Treasurer |
[Signature Page to the
Underwriting Agreement]
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| CB/TCC GLOBAL HOLDINGS LIMITED |
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| By: |
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/s/ Gil Borok |
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Name: Gil Borok |
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Title: Director |
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| By: |
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/s/ Laurence H. Midler |
|
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Name: Laurence H. Midler |
|
|
Title: Secretary |
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| TRAMMELL CROW DEVELOPMENT & INVESTMENT, INC. |
|
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| By: |
|
/s/ Scott A. Dyche |
|
|
Name: Scott A. Dyche |
|
|
Title: Executive Vice President |
[Signature Page to the
Underwriting Agreement]
|
|
|
| CONFIRMED AND ACCEPTED, |
| as of the date first above written: |
|
| CREDIT SUISSE SECURITIES (USA) LLC |
|
|
| By |
|
/s/ Malcolm K. Price |
|
|
Authorized Signatory |
For themselves and as Representative of the other Underwriters named in Schedule A hereto.
[Signature Page to the
Underwriting Agreement]
SCHEDULE A
The initial public offering price of the Securities shall be 101.500% of the principal amount thereof, plus interest deemed to have accrued
from September 26, 2014 to the Closing Date.
The purchase price to be paid by the Underwriters for the Securities shall be 100.700%
of the principal amount thereof, plus interest deemed to have accrued from September 26, 2014 to the Closing Date.
The interest rate
on the Securities shall be 5.25% per annum.
Credit Suisse Securities (USA) LLC shall purchase the principal amount of all of the
Securities.
Sch A
SCHEDULE B
Free Writing Prospectuses
Final Term
Sheet
Sch B
SCHEDULE C
Pricing Term Sheet
CBRE Services, Inc.
$125,000,000 5.25% Senior Notes due 2025
December 9, 2014
The following information
supplements the Preliminary Prospectus Supplement dated December 9, 2014 filed pursuant to Rule 433, Registration Statement No. 333-178800.
| Issuer: |
CBRE Services, Inc. (the “Issuer”) |
| Title of Securities: |
5.25% Senior Notes due 2025 (the “ Notes”) |
| Principal Amount: |
$125,000,000 |
| Gross Proceeds: |
$126,875,000 (excluding interest deemed to have accrued from September 26, 2014) |
Net Proceeds to Issuer
| (before expenses): |
$125,875,000 (excluding interest deemed to have accrued from September 26, 2014) |
| Final Maturity Date: |
March 15, 2025 |
| Issue Price: |
101.500% plus interest deemed to have accrued from September 26, 2014 |
| Spread to Treasury: |
+ 283 basis points |
| Benchmark: |
UST 2.25% due November 15, 2024 |
| Interest Payment Dates: |
March 15 and September 15, commencing March 15, 2015 (the first interest payment will be deemed to have accrued from September 26, 2014) |
| First Interest Payment Date: |
March 15, 2015 |
| Record Dates: |
March 1 and September 1 |
| Optional Redemption: |
From and after December 15, 2024, the Issuer will be entitled, at the Issuer’s option, to redeem all or a portion of the Notes at a redemption price equal to 100% of
the principal amount of the Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the date of redemption. |
| Make-Whole Premium: |
Prior to December 15, 2024, the Issuer will be entitled, at the Issuer’s option, to redeem all or a portion of the Notes at a redemption price equal to the greater of
(1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments of principal and interest thereon to December 15, 2024 (not including any portions of payments of interest accrued
as of the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Adjusted Treasury Rate (T+50 basis points). In the case of each of clause (1) and (2),
accrued and unpaid interest, if any, will be payable to, but excluding, the date of redemption. |
Sch C
| Sole Book-Running Manager: |
Credit Suisse Securities (USA) LLC |
| Trade Date: |
December 9, 2014 |
| Settlement Date: |
December 12, 2014 (T+3) |
| CUSIP/ISIN Numbers: |
12505BAC4 / US12505BAC46 |
| Trustee for the Notes: |
Wells Fargo Bank, National Association |
The
Issuer has filed a registration statement including a prospectus and a prospectus supplement with the Securities and Exchange Commission (the “SEC”) for the offering to which this communication relates. Before you invest, you should read
the prospectus and prospectus supplement in that registration statement and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may obtain these documents for free by visiting EDGAR
on the SEC Web site at www.sec.gov. Alternatively, copies may be obtained from Credit Suisse Securities (USA) LLC via fax at 1- 212-325-8057, by writing to Credit Suisse, Prospectus Department, Eleven Madison Avenue, Level 1B, New York, NY 10010, or
by calling (212) 325-2000.
Exhibit 4.1
EXECUTION VERSION
CBRE Services, Inc.,
as Issuer,
The Guarantors party
hereto,
as Guarantors
and
Wells Fargo Bank, National Association
as Trustee
Third Supplemental
Indenture
Dated as of December 12, 2014
$125,000,000 aggregate principal amount of 5.25% Senior Notes due 2025
THIRD SUPPLEMENTAL INDENTURE (this “Third Supplemental
Indenture”), dated as of December 12, 2014, between CBRE Services, Inc., a Delaware corporation (the “Issuer”), CBRE Group, Inc., a Delaware corporation (“Parent”), each subsidiary guarantor party
hereto (each, a “Subsidiary Guarantor”) and Wells Fargo Bank, National Association, a national banking association, as Trustee (the “Trustee”).
WITNESSETH THAT:
WHEREAS, the Issuer, the Guarantors and the Trustee have entered into an Indenture (the “Base Indenture” and,
as supplemented by the Second Supplemental Indenture, dated as of September 26, 2014 (the “Second Supplemental Indenture”), among the Issuer, Parent, the Subsidiary Guarantors and the Trustee and, as supplemented by this Third
Supplemental Indenture, the “Indenture”), dated as of March 14, 2013, providing for the issuance from time to time of series of its Securities (as defined in the Base Indenture);
WHEREAS, pursuant to Section 301 of the Base Indenture and the Second Supplemental Indenture, the Issuer, for its lawful
corporate purposes, created and authorized a new series of Securities to be known as the 5.25% Senior Notes due 2025 (the “Notes”), and on September 26, 2014, the Issuer issued $300,000,000 aggregate principal amount of the
Notes (the “Initial Notes”);
WHEREAS, Section 2.01 of the Second Supplemental Indenture provides
that Additional Notes (as defined in the Second Supplemental Indenture) ranking equally and ratably with the Initial Notes may be created and issued from time to time, without notice to or consent of the Holders of the Notes and shall be
consolidated and form a single series with the Initial Notes;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Third Supplemental Indenture to provide for the issuance of $125,000,000 aggregate principal amount of Additional Notes and Parent and the Subsidiary Guarantors have duly authorized the execution and delivery of this Third
Supplemental Indenture; and
WHEREAS, all things necessary to make this Third Supplemental Indenture a valid agreement
according to its terms have been done, and all things necessary to make such Additional Notes, when executed by the Issuer and authenticated and delivered by or on behalf of the Trustee in accordance with the Indenture, the valid, binding and legal
obligations of the Issuer have been done;
NOW, THEREFORE:
In order to declare the terms and conditions upon which such Additional Notes are executed, registered, authenticated, issued
and delivered, and in consideration of the premises, of the purchase and acceptance of such Additional Notes by the Holders thereof and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, each of
the Issuer and the Guarantors covenants and
1
agrees with the Trustee, for the equal and proportionate benefit of the respective Holders from time to time of such Additional Notes, as follows:
ARTICLE I
Definitions
SECTION 1.01. Relation to Base Indenture. This Third Supplemental Indenture constitutes an integral part of
the Base Indenture. However, to the extent any provision of the Base Indenture conflicts with the express provisions of this Third Supplemental Indenture, the provisions of this Third Supplemental Indenture will govern and be controlling in respect
of the Additional Notes specified in Section 2.01 hereof.
SECTION 1.02. Definition of Terms. For all purposes
of this Third Supplemental Indenture:
(a) Capitalized terms used but not otherwise defined herein shall have the meanings
specified in the Base Indenture and the Second Supplemental Indenture, and all other terms defined in this Third Supplemental Indenture shall have the meanings assigned to them;
(b) the terms defined in this Third Supplemental Indenture include the plural as well as the singular; and
(c) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an
Article or Section, as the case may be, of this Third Supplemental Indenture.
ARTICLE II
Additional Notes
SECTION 2.01. Additional Notes. One hundred twenty five million U.S. Dollars ($125,000,000) aggregate principal amount
of Additional Notes shall be issued under the Indenture. Such Additional Notes shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, redemption or otherwise (other than issue date and
issue price) as the Initial Notes, and be guaranteed by the Guarantors in accordance with the Indenture; provided that the Issuer may pay interest accruing prior to the issue date of such Additional Notes.
ARTICLE III
Miscellaneous
Provisions
SECTION 3.01. Ratification of Indenture. The Base Indenture, as supplemented by the Second
Supplemental Indenture and this Third Supplemental Indenture, is in all respects ratified and confirmed, and this Third Supplemental Indenture
2
shall be deemed to be part of the Base Indenture and the Second Supplemental Indenture in the manner and to the extent herein and therein provided.
SECTION 3.02. Provisions of General Application. The provisions of Sections 112, 115, 118 of the Base Indenture shall
apply to this Third Supplemental Indenture mutatis mutandis.
SECTION 3.03. Counterparts. The parties hereto
may sign any number of copies of this Third Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
[Remainder of Page Intentionally Blank]
3
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental
Indenture to be duly executed as of the day and year first written above.
|
|
|
| CBRE SERVICES, INC., as Issuer |
| CBRE GROUP, INC., as Parent |
|
|
| By: |
|
/s/ James R. Groch |
|
|
Name: James R. Groch |
|
|
Title: Chief Financial Officer |
[Signature Page to
the Third Supplemental Indenture]
|
|
|
| CBRE CONSULTING, INC. |
| CBRE GLOBAL INVESTORS, INC. |
| CBRE GLOBAL INVESTORS, LLC |
| CBRE, INC. |
| CB/TCC HOLDINGS LLC |
| CB/TCC, LLC |
| CBRE CAPITAL MARKETS OF TEXAS, LP |
| CBRE CAPITAL MARKETS, INC. |
| CBRE CLARION CRA HOLDINGS, INC. |
| CBRE CLARION REI HOLDING, INC. |
| CBRE GOVERNMENT SERVICES, LLC |
| CBRE BUSINESS LENDING, INC. |
| CBRE PARTNER, INC. |
| CBRE TECHNICAL SERVICES, LLC |
| CBRE-PROFI ACQUISITION CORP. |
| CBRE TECHNICAL SERVICES, LLC |
| CBRE/LJM MORTGAGE COMPANY, L.L.C. |
| INSIGNIA/ESG CAPITAL CORPORATION |
| THE POLACHECK COMPANY, INC. |
| TRAMMELL CROW COMPANY, LLC |
|
|
| By: |
|
/s/ Debera Fan |
|
|
Name: Debera Fan |
|
|
Title: Senior Vice President & Treasurer |
[Signature Page to
the Third Supplemental Indenture]
|
|
|
| CB/TCC GLOBAL HOLDINGS LIMITED |
|
|
| By: |
|
/s/ Gil Borok |
|
|
Name: Gil Borok |
|
|
Title: Director |
|
|
| By: |
|
/s/ Laurence H. Midler |
|
|
Name: Laurence H. Midler |
|
|
Title: Secretary |
|
| TRAMMELL CROW DEVELOPMENT & INVESTMENT, INC. |
|
|
| By: |
|
/s/ Scott A. Dyche |
|
|
Name: Scott A. Dyche |
|
|
Title: Executive Vice President |
[Signature Page to
the Third Supplemental Indenture]
|
|
|
| WELLS FARGO BANK, NATIONAL ASSOCIATION |
|
|
| By: |
|
/s/ Maddy Hall |
|
|
Name: Maddy Hall |
|
|
Title: Vice President |
[Signature Page to
the Third Supplemental Indenture]
Exhibit 5.1
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SIMPSON THACHER & BARTLETT LLP |
|
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|
2475 HANOVER STREET
PALO ALTO, CA 94304
(650) 251-5000 |
|
|
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|
|
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|
FACSIMILE (650) 251-5002 |
|
|
| DIRECT DIAL NUMBER |
|
|
|
E-MAIL ADDRESS |
December 12, 2014
CBRE Group, Inc.
CBRE Services, Inc.
400 South Hope Street, 25th Floor
Los Angeles, CA 90071
Ladies and Gentlemen:
We have acted as counsel to CBRE Group, Inc., a Delaware corporation (“Parent”), CBRE Services, Inc., a Delaware
corporation (the “Company”), and the subsidiaries of the Company listed on Schedule I hereto (collectively, the “Subsidiary Guarantors”) in connection with the Registration Statement on Form S-3 (File No. 333-178800) (as
amended by Post-Effective Amendment No. 2 thereto, the “Registration Statement”), including the prospectus constituting a part thereof dated December 29, 2011, and the prospectus supplement dated December 9, 2014 to such
prospectus (together, the “Prospectus”) filed by Parent, the Company and the Subsidiary Guarantors with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, relating to the
issuance by the Company of $125,000,000 aggregate principal amount of 5.25% Senior Notes due 2025 (the “Securities”) and the issuance by Parent and the Subsidiary Guarantors of guarantees (the “Guarantees”) with respect to the
Securities. The Securities and the Guarantees will be issued under an indenture, dated as of March 14, 2013 (the “Base Indenture”), among Parent, the
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| NEW YORK |
|
BEIJING |
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HONG KONG |
|
HOUSTON |
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LONDON |
|
LOS ANGELES |
|
SÃO PAULO |
|
SEOUL |
|
TOKYO |
|
WASHINGTON, D.C. |
Company, certain of the Subsidiary Guarantors and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as amended and supplemented by the Second Supplemental Indenture
thereto, dated as of September 26, 2014 (the “Second Supplemental Indenture”), among Parent, the Company, the Subsidiary Guarantors and the Trustee and the Third Supplemental Indenture thereto, dated as of December 12, 2014 (the
“Third Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”), among Parent, the Company, the Subsidiary Guarantors and the Trustee. The Securities represent a
further issuance of the Company’s 5.25% Senior Notes due 2025 originally issued in an aggregate principal amount of $300,000,000 on September 26, 2014.
We have examined the Registration Statement, the Indenture, the form of Note and the Underwriting Agreement, dated
December 9, 2014 (the “Underwriting Agreement”), among Parent, the Company, the Subsidiary Guarantors and the underwriter named therein. In addition, we have examined the originals, or duplicates or certified or conformed copies, of
such records, agreements, documents and other instruments and have made such other investigations as we have deemed relevant and necessary in connection with the opinions hereinafter set forth. As to questions of fact material to this
opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of Parent, the Company and the Subsidiary Guarantors.
In rendering the opinions set forth below, 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.
We also have assumed that the Indenture is the valid and legally binding obligation of the Trustee.
In rendering the opinions set forth below, we have assumed that (1) CB/TCC Global Holdings Limited (the “English
Guarantor”) is validly existing and in good standing under the laws of England and Wales; (2) the English Guarantor has duly authorized, executed and delivered or issued, as applicable, the Underwriting Agreement, the Indenture and its
Guarantee in accordance with its constitutive documents and the laws of England and Wales; (3) the execution, delivery and performance by the English Guarantor of the Underwriting Agreement, the Indenture and its Guarantee do not violate the
laws of England and Wales or any other jurisdiction (except that no such assumption is made with respect to the federal law of the United States or the law of the State of New York); and (4) the execution, delivery and performance by the
English Guarantor of the Underwriting Agreement, the Indenture and its Guarantee do not constitute a breach or violation of any agreement or instrument that is binding upon the English Guarantor or its constitutive documents.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion
that:
1. Upon the due execution, authentication, issuance and delivery of the Securities in accordance with the Indenture,
and upon payment of the consideration therefor provided for in the Underwriting Agreement, the Securities will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms.
2. Upon the due execution, authentication, issuance and delivery of the Securities underlying the Guarantees, and upon payment
of the consideration therefor provided for in the Underwriting Agreement, the Guarantees will constitute valid and legally binding obligations of Parent and the Subsidiary Guarantors enforceable against Parent and the Subsidiary Guarantors in
accordance with their terms.
Our opinions set forth 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 proceeding in equity or at law), (iii) an implied covenant of good faith and fair dealing
and (iv) to the effects of the possible judicial application of foreign laws or foreign governmental or judicial action affecting creditors’ rights.
We have relied upon, insofar as the opinions expressed herein relate to or are dependent upon matters governed by the law of
(i) the State of Texas, the opinion of Winstead PC, counsel to CBRE Capital Markets, Inc. and CBRE Capital Markets of Texas, LP, (ii) the State of Wisconsin, the opinion of Quarles & Brady LLP, counsel to The Polacheck Company,
Inc., and (iii) the State of Nevada, the opinion of Dickinson Wright PLLC, counsel to CBRE/LJM-Nevada, Inc., in each case, dated the date hereof and filed as an exhibit to a Current Report on Form 8-K of Parent filed with the Commission.
We do not express any opinion herein concerning any law other than (i) the federal law of the United States,
(ii) the California General Corporation Law, (iii) the Delaware General Corporation Law, (iv) the Delaware Limited Liability Company Act, (v) the law of the State of New York, and (vi) to the extent set forth herein, the
laws of the State of Texas, the State of Wisconsin and the State of Nevada.
We hereby consent to the filing of this
opinion letter as an exhibit to a Current Report on Form 8-K of Parent filed with the Commission and the incorporation by reference of this opinion into the Registration Statement and the Prospectus and to the references to our firm therein.
Very truly yours,
/s/ Simpson Thacher & Bartlett LLP
SIMPSON THACHER & BARTLETT LLP
Schedule I
Subsidiary Guarantors
|
|
|
| Name of Subsidiary Guarantor |
|
Jurisdiction of Formation |
| 1. CBRE, Inc. |
|
Delaware |
| 2. CBRE Partner, Inc. |
|
Delaware |
| 3. CBRE Clarion CRA Holdings, Inc. |
|
Delaware |
| 4. CBRE Clarion REI Holding, Inc. |
|
Delaware |
| 5. CBRE Global Investors, Inc. |
|
California |
| 6. CBRE Global Investors, LLC |
|
Delaware |
| 7. CB/TCC Global Holdings Limited |
|
United Kingdom |
| 8. CB/TCC Holdings LLC |
|
Delaware |
| 9. CB/TCC, LLC |
|
Delaware |
| 10. CBRE Capital Markets of Texas, LP |
|
Texas |
| 11. CBRE Capital Markets, Inc. |
|
Texas |
| 12. CBRE Government Services, LLC |
|
Delaware |
| 13. CBRE Business Lending, Inc. |
|
Delaware |
| 14. CBRE Technical Services, LLC |
|
Delaware |
| 15. CBRE/LJM Mortgage Company, L.L.C. |
|
Delaware |
| 16. Insignia/ESG Capital Corporation |
|
Delaware |
| 17. The Polacheck Company, Inc. |
|
Wisconsin |
| 18. Trammell Crow Company, LLC |
|
Delaware |
| 19. Trammell Crow Development & Investment, Inc. |
|
Delaware |
| 20. CBRE Consulting, Inc. |
|
California |
| 21. CBRE/LJM - Nevada, Inc. |
|
Nevada |
Exhibit 5.2
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1100 JPMorgan Chase
Tower
600 Travis Street
Houston, TX 77002 |
|
713.650.8400
713.650.2400
winstead.com |
|
OFFICE
FAX |
December 12, 2014
CBRE Group, Inc.
CBRE Services, Inc.
400 South Hope Street
25th Floor
Los Angeles, CA 90071
Ladies and Gentlemen:
We have acted as special local counsel to CBRE Capital Markets, Inc., a Texas corporation, and CBRE Capital Markets of Texas,
LP, a Texas limited partnership (each a “Guarantor” and collectively the “Guarantors”) in the State of Texas, in connection with the Registration Statement on Form S-3 (File
No. 333-178800) (as amended, the “Registration Statement”), including the prospectus constituting a part thereof dated December 29, 2011, and the supplement to the prospectus dated December 9, 2014 (collectively, the
“Prospectus”), filed by CBRE Group, Inc., a Delaware corporation (the “Parent”), CBRE Services, Inc., a Delaware corporation and subsidiary of the Parent (the “Company”), the Guarantors and the other
registrant-guarantors named therein (together with the Parent, the “Other Guarantors”) with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”),
relating to the issuance by the Company of up to $125,000,000 aggregate principal amount of 5.25% Senior Notes due 2025 (the “Notes”) and the issuance by the Guarantors and the Other Guarantors of guarantees (the “Guaranties”)
with respect to the Notes. We understand that the Notes represent a further issuance of the Company’s 5.25% Senior Notes due 2025 originally issued in an aggregate principal amount of $300,000,000 on September 26, 2014. The Notes and the
Guaranties will be issued under the Indenture dated as of March 14, 2013 (the “Base Indenture”) among the Parent, the Company, the Guarantors, certain of the Other Guarantors and Wells Fargo Bank, National Association, as trustee (the
“Trustee”), as amended and supplemented by the Second Supplemental Indenture dated as of September 26, 2014 (the “Second Supplemental Indenture”), among the Parent, the Company, the Guarantors, the Other Guarantors and the
Trustee and by the Third Supplemental Indenture, dated as of December 12, 2014 (the “Third Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”) among the
Parent, the Company, the Guarantors, the Other Guarantors and the Trustee. The terms of the Guaranties are contained in the Indenture. Capitalized terms used but not defined in the body of this opinion letter have the respective meanings assigned to
such terms in Appendix A attached hereto.
In rendering the opinions set forth herein, we have examined and relied on
originals or copies, certified or otherwise identified to our satisfaction, of the following:
CBRE Group, Inc.
CBRE Services, Inc.
December 12,
2014
Page 2
| |
(a) |
the executed Indenture; |
| |
(b) |
the Organizational Documents; |
| |
(d) |
the Good Standing Documentation; and |
| |
(e) |
such records of the Guarantors and such agreements, certificates of public officials, certificates of officers or other representatives of the
Guarantors and others and such other documents as we have deemed necessary or appropriate as a basis for the opinions set forth below. |
In our examination we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the
authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to any
facts material to the opinions expressed herein that we did not independently establish or verify, we have relied, to the extent we deemed appropriate, upon (i) oral or written statements and representations of officers and other
representatives of the Guarantors and (ii) statements and certifications of public officials and others.
We express
no opinion as to the laws of any jurisdiction other than the laws of the State of Texas and the laws of the United States of America.
Based on the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of
the opinion that:
1. Each of the Guarantors is validly existing and in good standing as a corporation or
limited partnership, as indicated, under the laws of the State of Texas.
2. Each of the Guarantors has the
corporate or limited partnership power and authority to execute and deliver the Indenture and to perform its obligations thereunder.
3. Each of the Guarantors has duly authorized by all necessary entity action (corporate, partnership or
otherwise), and executed and delivered the Indenture.
4. The Guaranties have been duly authorized by all
necessary entity action (corporate, partnership or otherwise) and issued by each of the Guarantors.
5. The
execution and delivery by each Guarantor of the Indenture do not, and the performance by each Guarantor of its obligations thereunder will not, result in any violation of (1) the Organizational Documents of such Guarantor or (2) any Texas
statute or any rule or regulation issued pursuant to any Texas statute that, in our experience in accordance with customary opinion practice, are recognized as normally applicable to
CBRE Group, Inc.
CBRE Services, Inc.
December 12,
2014
Page 3
transactions of the type contemplated by the Opinion Documents, or any order identified to us by such Guarantor and issued by any court or governmental agency or body and binding on such
Guarantor. We have not undertaken any independent investigation to determine the existence or absence of such facts, or the accuracy or completeness of any representations, warranties, data or other information, written or oral, made or furnished by
any Guarantor to us or to the Trustee or any Holder (as such term is defined in the Indenture).
Our opinions are subject
to the following limitations, qualifications, exceptions and assumptions:
(i) Our opinions in
paragraph 1 above as to the valid existence and good standing of the Guarantors are based solely upon our review of the Good Standing Documentation.
(ii) We have assumed the Organizational Documents have not been amended, modified or supplemented in any
respect since the date of the Secretary’s Certificates.
(iii) In connection with our opinions
expressed above, we have assumed the following:
(1) that CBRE/LJM Mortgage Company, L.L.C. (the
“General Partner”), a non-Texas entity signing on behalf of CBRE Capital Markets of Texas, LP, is duly organized or formed, validly existing and in good standing under the laws of its jurisdiction of organization or formation;
(2) that the General Partner has the power and authority to execute and deliver, and to incur and perform all
obligations under, the Indenture;
(3) the due authorization by all requisite action, and the due execution
and delivery, of the Indenture by or on behalf of the General Partner on behalf of CBRE Capital Markets of Texas, LP; and
(4) that the execution and delivery of the Indenture and the incurrence and performance of their obligations
thereunder by the General Partner on behalf of CBRE Capital Markets of Texas, LP, do not and will not contravene, breach, violate or constitute a default (with the giving of notice, the passage of time or otherwise) under (i) the certificate of
formation, operating agreement or other organizational documents of such party, (ii) any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument, (iii) any law, rule or regulation, (iv) any judicial
or other administrative order or decree of any governmental authority or regulatory body or (v) any authorization, consent or other approval of, or registration, recording or filing with, any court,
CBRE Group, Inc.
CBRE Services, Inc.
December 12,
2014
Page 4
governmental authority or regulatory body, in each case, to which the General Partner may be subject, or by which it may be bound or affected.
This opinion is being delivered to the Company, is intended for its use and may not be otherwise reproduced, filed publicly or
relied upon by any other person for any purpose without the express written consent of the undersigned, except that (a) this opinion may be relied upon by Simpson Thacher & Bartlett LLP and (b) we hereby consent to the filing of
this opinion letter with the Commission as an exhibit to a Current Report on Form 8-K of the Parent filed with the Commission and to the incorporation by reference of this opinion into the Registration Statement and the Prospectus and to the
references to our firm therein. We do not undertake to provide any opinion as to any matter or to advise any person with respect to any events or changes occurring after the date of this letter. The opinions expressed in this letter are provided as
legal opinions only and not as any guarantees or warranties of the matters discussed herein, and such opinions are strictly limited to the matters stated herein, and no other opinions may be implied therefrom.
Very truly yours,
/s/ Winstead PC
APPENDIX A
Defined Terms
As used herein and in the opinion letter to which this Appendix A is attached, the following terms have the respective
meanings set forth below.
“Good Standing Documentation” means (1) the certificates of fact from the
Secretary of State of Texas issued on December 5, 2014 with respect to each of the Guarantors and (2) an online search of the Franchise Tax Account Status page of the website of the Texas Comptroller of Public Accounts on December 5,
2014, which indicated that the right of each of the Guarantors to conduct business in the State of Texas is active.
“Opinion Documents” means the Indenture, the Registration Statement and the Prospectus.
“Organizational Documents” means the articles of incorporation, certificate of limited partnership, bylaws and
limited partnership agreement of the Guarantors attached as exhibits to the Secretary’s Certificates.
“Resolutions” means, collectively, the resolutions of each Guarantor attached as exhibits to the Secretary’s
Certificates.
“Secretary’s Certificates” means the Assistant Secretary’s Certificate of CBRE Capital
Markets, Inc. and the General Partner’s Certificate of CBRE Capital Markets of Texas, LP, each dated December 12, 2014, copies of which have been delivered to Winstead PC.
Exhibit 5.3
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411 East Wisconsin Avenue
Suite 2350 Milwaukee, Wisconsin
53202-4426 414.277.5000 Fax
414.271.3552 www.quarles.com |
|
Attorneys at Law in
Chicago Indianapolis
Madison Milwaukee
Naples Phoenix
Scottsdale Tampa
Tucson Washington,
D.C. |
December 12, 2014
CBRE Group, Inc.
CBRE Services,
Inc.
400 South Hope Street
25th Floor
Los Angeles,
California 90071
Ladies and Gentlemen:
We have acted as special Wisconsin counsel to The Polacheck Company, Inc., a Wisconsin corporation (the
“Guarantor”), in connection with the Registration Statement on Form S-3 (Registration No. 333-1 78800) (together with any post-effective amendments thereto through the date hereof, the “Registration Statement”), including
the prospectus constituting a part thereof dated December 29, 2011, and the supplement to the prospectus dated December 9, 2014 (collectively, the “Prospectus”), filed by CBRE Group, Inc., a Delaware corporation (the “Company”),
CBRE Services, Inc., a Delaware corporation and subsidiary of the Company (the “Issuer”), the Guarantor and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the
Securities Act of 1933, as amended, relating to the issuance by the Issuer of $125,000,000 aggregate principal amount of 5.25% Senior Notes due 2025 (the “Notes”) and the issuance by the Company, the Guarantor and the other guarantors of
guaranties (the “Guaranties”) with respect to the Notes. The Notes represent a further issuance of the Issuer’s 5.25% Senior Notes due 2025 originally issued in an aggregate principal amount of $300,000,000 on September 26, 2014. The
Notes will be issued under, and the Guaranties will be issued as provided in, an indenture dated as of March 14, 2013 (the “Base Indenture”), among the Issuer, the Company, certain of the other guarantors named therein (including the
Guarantor) and Wells Fargo Bank, National Association , as trustee (the “Trustee”), as amended and supplemented by the Second Supplemental Indenture dated as of September 26, 2014 (the “Second Supplemental Indenture”), among the
Issuer, the Company, the other guarantors named therein (including the Guarantor) and the Trustee and by the Third Supplemental Indenture dated as of December 12, 2014 (the “Third Supplemental Indenture” and, together with the Base
Indenture and the Second Supplemental Indenture, the “Indenture”), among the Issuer, the Company, the other guarantors named therein (including the Guarantor) and the Trustee.
We have examined the Registration Statement, includin g the Prospectus, and the Indenture. We also have examined the
originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, documents, and other instruments and have made such other investigations as we have deemed relevant or necessary in connection with the
opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company, the Issuer and the Guarantor.
In rendering the opinions set forth below, we have assumed the ge nuineness 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. We have assumed that the Notes and the Indenture are the Issuer’s valid and legally binding obligations and that the Indenture is the valid and legally binding obligation of the Company, the other guarantors named therein (excluding
the Guarantor) and the Trustee.
CBRE Group, Inc.
CBRE Services, Inc.
December 12,
2014
Page 2
Based upon the foregoing, and subject to the qualifications, assumptions and
limitations stated herein, we are ofthe opinion that:
( l) based solely on a certificate from the Wisconsin Depmtment of
Financial Institutions, the Guarantor is validly existing as a corporation under the laws of the State of Wisconsin , has filed an annual report with the Department of Financial Institutions within its most recently completed report year, and has
not filed articles of dissolution;
(2) the Guarantor has the corporate power and authority to execute and deliver the
Indenture and to perform its obligations thereunder;
(3) the Guarantor has duly authorized and executed the Indenture,
and duly authorized its delivery;
(4) the Guaranty (as provided in the Indenture) of the Guarantor has been duly
authorized and issued by the Guarantor; and
(5) the execution and delivery by the Guarantor of the Indenture and its
performance of its obligations thereunder have not and will not result in any violation of (a) its articles of incorporation or bylaws or (b) any Wisconsin statute or any rule or regulation issued pursuant to any Wisconsin statute or any
order identified to us by the Guarantor and issued by any court or governmental agency or body (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).
Our opinions set forth above are subject to (i) the effects of bankruptcy, insolvency, rraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied covenant of good
faith and fair dealing. We do not express any opinion concerning any law other than the Jaws of the State of Wisconsin and the federal Jaws of the United States of America. We express no opinion as to compliance by the Guarantor with federal or
Wisconsin laws, statutes and regulations generally applicable to the conduct of its business or as to consents, approvals or other actions by federal or Wisconsin regulatory authorities generally required for the conduct of its business. We also
express no opinion herein as to (a) securities or blue sky disclosure laws or regulations; (b) antitrust or unfair competition laws or regulations; (c) tax or racketeering laws or regulations; or (d) local Jaws, regulations or
ordinances.
We are not opining on matters of New York Jaw, which governs the Indenture; we understand that your counsel,
Simpson Thacher & Bartlett LLP, is opining on certain other matters in connection with the Notes (including matters governed under New York law), and the foregoing opinions may be relied upon by such counsel in connection therewith. We
hereby consent to the filing of this opinion letter as an exhibit to a Current Report on Form 8-K of the Company filed with the Commission and to the incorporation by reference of this opinion letter into the Registration Statement and the
Prospectus and to the references to our firm therein .
Very truly yours,
QUARLES & BRADY LLP
Exhibit 5.4
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8965 SOUTH EASTERN AVENUE, SUITE 280
LAS VEGAS, NV 89123-4898
TELEPHONE: (702) 382-4002
FACSIMILE: (702) 382-1661
http://www.dickinsonwright.com
ERIC DOBBERSTEIN
EDOBBERSTEIN@DICKINSONWRIGHT.COM
(702) 550-4444 |
December 12, 2014
CBRE Group, Inc.
CBRE Services, Inc.
400 South Hope Street
25th Floor
Los Angeles, CA 90071
| |
RE: |
CBRE/LJM-NEVADA, INC. |
Ladies and Gentlemen:
We have acted as special Nevada counsel to CBRE/LJM-Nevada, Inc., a Nevada corporation (the “Guarantor”), in
connection with the Registration Statement on Form S-3 (Registration No. 333-178800) together with any post-effective amendments thereto through the date hereof (the“Registration Statement”), including the prospectus constituting a
part thereof dated December 29, 2011, and the supplement to the prospectus dated December 9, 2014 (collectively, the “Prospectus”), filed by CBRE Group, Inc, a Delaware corporation (the “Company”), CBRE Services, Inc.,
a Delaware corporation and subsidiary of the Company (the Issuer), the Guarantor and the other registrant guarantors named therein with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended,
relating to the issuance by the Issuer of $125,000,000 aggregate principal amount of 5.25% Senior Notes due 2025 (the “Notes”) and the issuance by the Company, the Guarantor and the other guarantors of guaranties (the “Guaranties)
with respect to the Notes. The Notes represent a further issuance of the Issuer’s 5.25% Senior Notes due 2025 originally issued in an aggregate principal amount of $300,000,000.00 on September 26, 2014. The Notes will be issued under, and
the Guaranties will be issued as provided in an indenture, dated as of March 14, 2013 (the “Base Indenture”), among the Issuer, the Company, certain of the other guarantors named therein and Wells Fargo Bank, National Association, as
trustee (the “Trustee”), as amended and supplemented by the Second Supplemental Indenture, dated as of September 26, 2014 (the “Second Supplemental Indenture”), among the Company, the Issuer, the other guarantors named
therein (including the Guarantor) and the Trustee, and by the Third Supplemental Indenture, dated as of December 12, 2014, (the “Third Supplemental Indenture” and, together with the Base Indenture and the Second Supplemental
Indenture, the “Indenture”), among the Company, the Issuer, the other guarantors named therein (including the Guarantor) and the Trustee.
In our capacity as such special counsel, we have examined the Registration Statement, including the Prospectus, and the
Indenture. We also have examined the originals, duplicates,
DETROIT | NASHVILLE | WASHINGTON,
D.C. | TORONTO | PHOENIX | LAS VEGAS | COLUMBUS
TROY | ANN ARBOR | LANSING | GRAND RAPIDS | SAGINAW
D I C K I N S O N W R I G H T
P L L C
CBRE Group, Inc.
December 12, 2014
Page
2
certified, or conformed copies, of such corporate and other records, agreements, documents, and other instruments and have made such other investigations as we have deemed relevant or necessary
in connection with the opinions hereinafter set forth. As to questions of fact material to this opinion, we have relied upon certificates or comparable documents of public officials and of officers and representatives of the Company, the Issuer and
the Guarantor. The documents that we have examined or otherwise identified to our satisification include but are not limited to:
1) March 27, 2013, Certified Copy of Articles of Incorporation CBRE/LJM-Nevada, Inc., dated December 31, 1998;
2) Secretary’s Certificate of CBRE/LJM-Nevada, Inc. signed by Senior Vice President and Treasurer Debra Fan, Assistant
Secretary Stephen Ballas, and Assistant Secretary Cindy Kee dated December 12, 2014;
3) Bylaws of CBRE/LJM-Nevada,
Inc. adopted December 31, 1998 and certified by Secretary Walter V. Stafford;
4) Certificate of Existence with
Status in Good Standing for CBRE/LJM-Nevada, Inc. from the Nevada Secretary of State Ross Miller dated December 4, 2014;
5) The Current listing of Business Entity Information and list of Officers filed with the Nevada Secretary of State as of
December 4, 2014;
6) Form S-3A Post-Effective Amendment No. 2 to Form S-3 Registration Statement under the
Securities Act of 1933, a amended, of CBRE Group, Inc., CBRE Service, Inc. and certain of their subsidiaries dated September 23, 2014 including the prospectus constituting a part thereof dated December 29, 2011, and the supplement to the
prospectus dated December 9, 2014; and
7) Action Taken Without a Meeting by Unanimous Written Consent of the Board
of Directors of CBRE/LJM – Nevada, Inc., dated December 5, 2014, signed by Gill Borok and Laurence H. Midler, which adopts Exhibit A of Corporate Resolutions.
In rendering the opinions set forth below, 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 are the Issuer’s valid and legally binding obligations and that the Indenture is the
valid and legally binding obligation of the Company, the Issuer, the other guarantors named therein (excluding the Guarantor) and the Trustee.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, we are of the opinion
that:
DETROIT | NASHVILLE | WASHINGTON,
D.C. | TORONTO | PHOENIX | LAS VEGAS | COLUMBUS
TROY | ANN ARBOR | LANSING | GRAND RAPIDS | SAGINAW
D I C K I N S O N W R I G H T
P L L C
CBRE Group, Inc.
December 12, 2014
Page
3
(1) based solely on a certificate from the Nevada Secretary of State, and
upon reviewing the current list of Officers and Directors as set forth on the Nevada Secretary of State Website, the Guarantor is validly existing as a corporation under the laws of the State of Nevada, has filed on September 23, 2014, an
Amended List of Officers and Directors with the Nevada Secretary of State within its mostly recently completed year, and has not filed articles of dissolution;
(2) the Guarantor has the corporate power and authority to execute and deliver the Indenture and to perform its obligations
thereunder,
(3) the Guarantor has duly authorized and executed the Indenture, and duly authorized its delivery;
(4) the Guaranty (as provided in the Indenture) of the Guarantor has been duly authorized and issued by the Guarantor; and
(5) the execution and delivery by the Guarantor of the Indenture and its performance of its obligations thereunder have
not and will not result in any violation of (a) its articles of incorporation or bylaws or (b) any Nevada statute or any rule or regulation issued pursuant to any Nevada statue or any order identified to us by the Guarantor and issued by
any court or governmental agency or body (it being understood that we have not undertaken any independent investigation to determine the existence or absence of such facts).
Our opinions set forth 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 and (ii) general equitable principles (whether considered in a proceeding in equity or at law), including an implied convent of good
faith and fair dealing. We do not express any opinion concerning any law other than the laws of Nevada and the federal laws of the United States of America. We express no opinion as to compliance by the Guarantor with federal or Nevada laws,
statutes and regulations generally applicable to the conduct of its business or as to consents, approvals or other actions by federal or Nevada regulatory authorities generally required for the conduct of its business. We also express no opinion
herein as to (a) securities or blue sky disclosure laws or regulations; (b) antitrust or unfair competition laws or regulations; (c) tax or racketeering laws or regulations; or (d) local laws, regulations or ordinances. We have
not undertaken any independent investigation to determine the existence or absence of facts not referenced herein. This opinion represents conclusions made as to the date hereof to the application of existing Nevada law. No assurance can be given
that changes in the law, or in the interpretation thereof, will not affect this opinion. We assume no obligation to revise or supplement this opinion should such matters change by legislative action, judicial decision or otherwise.
We are not opining on matters of New York law, which governs the Indenture; we understand that your counsel, Simpson
Thacher & Bartlett LLP, is opining on certain other matters in connection with the Notes (including matters governed under New York law), and the foregoing opinions may be relied upon by such counsel in connection therewith. In addition you
DETROIT | NASHVILLE | WASHINGTON,
D.C. | TORONTO | PHOENIX | LAS VEGAS | COLUMBUS
TROY | ANN ARBOR | LANSING | GRAND RAPIDS | SAGINAW
D I C K I N S O N W R I G H T
P L L C
CBRE Group, Inc.
December 12, 2014
Page
4
will be relying upon Winstead, PC, Houston, Texas, as to all matters governed by the laws of the State of Texas, Quarles & Brady, LLP, Milwaukee, Wisconison, as to all matters governed
by the laws of the State of Wisconsin. Further Wragge, Lawrence, Graham & Co., LLP, London, United Kingdom will also provide legal advice of certain legal matters. Finally the underwriters have been represented by Cravath, Swaine &
Moore, LLP, New York, New York. We hereby consent to the filing of this opinion letter as an exhibit to current Report on Form 8-K of the Company filed with the Commission and to the incorporation by reference of this opinion letter into the
Registration Statement and the Prospectus and to the references to our firm therein.
Once again, thank you for showing
your confidence in our firm by retaining our services. Should you have any questions or comments, please do not hesitate to contact me.
|
| Sincerely, |
|
| /s/ Eric Dobberstein, Esq. |
|
| Eric Dobberstein, Esq. |
DETROIT | NASHVILLE | WASHINGTON,
D.C. | TORONTO | PHOENIX | LAS VEGAS | COLUMBUS
TROY | ANN ARBOR | LANSING | GRAND RAPIDS | SAGINAW
Exhibit 5.5
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| Your Reference
Our Reference
2110847/KXJ1/AKM1 |
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| CBRE Group, Inc.
CBRE Services, Inc.
400 South Hope Street
25th Floor
Los Angeles
California 90017 |
|
Wragge Lawrence Graham & Co LLP
4 More London Riverside London
SE1 2AU |
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| 12 December 2014 |
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Ladies and Gentlemen,
Notes
Offer for 5.25% Senior Notes due 2025
We have acted as special English legal advisers to CB/TCC Global Holdings Limited (company no:
5972504), a company incorporated with limited liability in England and Wales, (the “UK Subsidiary Guarantor”), in connection with the Registration Statement on Form S-3 (Registration No. 333-178800) (together with any
post-effective amendments thereto, the “Registration Statement”) including the prospectus constituting a part thereof dated December 29, 2011, and the supplement to the prospectus dated as of December 12, 2014
(collectively, the “Prospectus”) filed with the United States Securities and Exchange Commission (the “Commission”) under a U.S. statute, the Securities Act of 1933, as amended, by CBRE Group, Inc. (formerly known
as CB Richard Ellis Group, Inc.) (the “Parent”), CBRE Services, Inc. (formerly known as CB Richard Ellis Services, Inc.) (the “Issuer”) and certain subsidiaries of the Issuer, of which the UK Subsidiary Guarantor is
one (together with the Parent, the “Guarantors”), relating to the tack-on offering by the Issuer of $125,000,000 aggregate principal amount of Senior Notes due 2025 (the “Notes”), which will be wholly and
unconditionally guaranteed, jointly and severally, on a senior basis as to the payment of principal and interest, by the Guarantors, including the UK Subsidiary Guarantor (each a “Guarantee,” collectively, the
“Guarantees”). The Notes represent a further issuance of the Issuer’s 5.25% Senior Notes due 2025 originally issued in an aggregate principal amount of $300,000,000 on September 26, 2014. The Notes and the Guarantees will
be issued under an indenture dated as of March 14, 2013 (the “Base Indenture”) among the Issuer, certain of the Guarantors and Wells Fargo Bank, National Association, as trustee (the “Trustee”) as amended and
supplemented by the second supplemental indenture dated as of September 26, 2014 (the “Second Supplemental Indenture”) and the third supplemental indenture dated as of December 12, 2014 (the “Third Supplemental
Indenture and, together with the Base Indenture and the Second Supplemental Indenture, the “Indenture”), each, among the Issuer, the Guarantors and the Trustee.
In arriving at the opinions expressed below, we have examined the documents listed in Schedule 1 to this letter and such
corporate documents and records of the UK Subsidiary Guarantor and such other instruments and certificates of public officials, officers and representatives of the UK Subsidiary Guarantor and other persons, and we have made such investigations of
law, in each case as we have deemed appropriate as a basis for such opinions as listed in Schedule 2 to this letter.
In
rendering the opinions expressed below, we have assumed, with your permission, without independent investigation or inquiry, (a) the authenticity of all documents submitted to us as originals, (b) the genuineness of all signatures on all
documents that we examined (other than those of the UK Subsidiary Guarantor and officers of the UK Subsidiary Guarantor), (c) the conformity to authentic originals of documents submitted to us as certified, conformed or photostatic copies and
(d) the additional assumptions and qualifications set out in Schedule 3 to this letter.
|
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| T +44(0) 870 903 1000
F +44 (0) 0870 1099
www.wragge-law.com |
|
Wragge Lawrence Graham & Co LLP is registered in England and Wales as a Limited Liability Partnership, Registration No. OC304378. Regulated by
the Solicitors Regulation Authority. Registered Office 4 More London Riverside, London, SE1 3AU. A list of members of Wragge Lawrence Graham & Co LLP is open to inspection at the registered office. This letter is printed on FSC environmentally
certified paper. |
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| To: |
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SHEET NO |
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DATE |
| CBRE Group, Inc. |
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2 |
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12 December 2014 |
| CBRE Services, Inc. |
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Based upon and subject to the foregoing, we are of the opinion that:
| 1 |
The UK Subsidiary Guarantor (a) is validly existing and in good standing as a limited liability company under the law of England and Wales,
(b) has the corporate power and authority to execute and deliver the Indenture and to perform its obligations thereunder, (c) has duly authorized, executed and delivered the Indenture and (d) has duly authorized and issued the
Guarantee. |
| 2 |
The execution and delivery by the UK Subsidiary Guarantor of the Indenture and performance of its obligations thereunder do not and will not result
in any violation of (1) the memorandum and articles of association of the UK Subsidiary Guarantor or (2) any English law or any rule or regulation or any order issued by any court or governmental agency or body. |
| 3 |
The obligations (including the issuance of the Guarantee) which the UK Subsidiary Guarantor expresses to assume pursuant to the Indenture
constitutes its legal, valid and binding obligations. |
| 1 |
This opinion is given only in relation to English law as it is understood at the date of this opinion. We have no duty to keep you informed of
subsequent developments which might affect this opinion. If a question arises in relation to a cross-border transaction, it may not be the English courts which decide that question and English law may not be used to settle it. We express no opinion
on, and have taken no account of, the laws of any jurisdiction other than England and Wales. In particular, we express no opinion as to the interpretation of the Indenture. |
| 2 |
We express no opinion as to matters of fact. |
| 3 |
Our opinion is given solely for the benefit of the addressees hereof. It may not be otherwise reproduced, filed publicly or relied on by any other
person for any purpose without the express written consent of the undersigned. Notwithstanding the foregoing, our opinions may be relied upon by your counsel, Simpson Thacher & Bartlett LLP, in connection with their opinion to you dated the
date hereof. We hereby consent to the filing of this opinion letter with the Commission as an exhibit to a Current Report on Form 8-K of the Parent filed with the Commission and to the incorporation by reference of this opinion into the Registration
Statement and the Prospectus and to the references to our firm therein. |
Yours faithfully
/s/ Wragge Lawrence Graham & Co LLP
Wragge
Lawrence Graham & Co LLP
( Enquiries please contact: Kirsty Barnes
+44 (0)203 636 7917
Kirsty.barnes@wragge-law.com
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| To: |
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SHEET NO |
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DATE |
| CBRE Group, Inc. |
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3 |
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12 December 2014 |
| CBRE Services, Inc. |
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Schedule 1
DOCUMENTS
| 1 |
A copy of the Base Indenture. |
| 2 |
A copy of the Second Supplemental Indenture. |
| 3 |
A copy of the Third Supplemental Indenture. |
| 4 |
A copy of the Registration Statement. |
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| To: |
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SHEET NO |
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DATE |
| CBRE Group, Inc. |
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4 |
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12 December 2014 |
| CBRE Services, Inc. |
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Schedule 2
FILINGS, RECORDINGS AND OTHER DOCUMENTS
Part 1 – Background Documents
| 1 |
A copy of the UK Subsidiary Guarantor’s certificate of incorporation (and certificate of incorporation on change of name) and memorandum and
articles of association, each certified by its company secretary; |
| 2 |
A copy of the unanimous resolutions of the board of directors of the UK Subsidiary Guarantor held on December 5, 2014 each certified by its
company secretary; |
| 3 |
A copy of a Secretary’s Certificate of the UK Subsidiary Guarantor dated as of December 12, 2014; and |
| 4 |
An electronic copy of the “certificate of good standing” in respect of the UK Subsidiary Guarantor issued by Companies House on
December 9, 2014, |
(together the “Background Documents”).
Part 2 – Searches
| 1 |
A search in respect of the UK Subsidiary Guarantor at Companies House using its database (Companies House Direct) on December 8, 2014 and
updated on December 9, 2014; and |
| 2 |
A search of the records of the UK Subsidiary Guarantor at the Companies Court, Royal Courts of Justice, Rolls Building, London on December 9,
2014 at 10:05am, |
(together the “Searches”).
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| To: |
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SHEET NO |
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DATE |
| CBRE Group, Inc. |
|
5 |
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12 December 2014 |
| CBRE Services, Inc. |
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Schedule 3
ASSUMPTIONS AND QUALIFICATIONS
Assumptions
This opinion is based on the
following assumptions:
| 1 |
Status of the UK Subsidiary Guarantor. |
| 1.1 |
The information provided by the Searches is complete, accurate and up-to-date. We have undertaken no searches other than those listed in Part 2 of
Schedule 2. |
| 2 |
Execution of the Indenture by the UK Subsidiary Guarantor. |
| 2.1 |
The Background Documents are complete, accurate and up-to-date and no amendments have been made. |
| 2.2 |
The board meeting described in the minutes referred to in part 1 of Schedule 2 were duly convened and held. The resolutions of the UK
Subsidiary Guarantor referred to in those minutes were duly passed by the directors concerned in good faith and in the interests of the UK Subsidiary Guarantor and are in full force and effect without modification. |
| 2.3 |
Each director of the UK Subsidiary Guarantor has disclosed, in accordance with sections 172 and 177 of the Companies Act 2006 and the Articles of
Association of the UK Subsidiary Guarantor, any interest which he/she may have in the transactions contemplated by the Indenture as set out in the board minutes referred to in part 1 of Schedule 2. |
| 2.4 |
No insolvency proceedings (which include those relating to bankruptcy, liquidation, administration, administrative receivership and reorganisation)
are in force, or have been commenced, in relation to the UK Subsidiary Guarantor in any jurisdiction. |
| 2.5 |
The person who purported to execute the Indenture on behalf of the UK Subsidiary Guarantor was in fact the person who so executed the Indenture.
|
| 2.6 |
The Indenture is in the form provided to us. There has been no variation, waiver or discharge of any of the provisions of the Indenture.
|
| 2.7 |
The UK Subsidiary Guarantor is solvent both on a balance sheet and on a cash-flow basis, and will remain so immediately after the Indenture has
been executed |
| 3 |
Parties other than the UK Subsidiary Guarantor |
| 3.1 |
The Indenture has been duly authorised, executed and delivered by all persons who are expressed to be parties to it other than the UK Subsidiary
Guarantor. |
| 3.2 |
Each other party to the Indenture (other than the UK Subsidiary Guarantor) has the capacity, power and authority to enter into and to exercise its
rights and to perform its obligations under the Indenture and is not controlled by or otherwise connected with a person (or is itself) resident in, incorporated in or constituted under the laws of a country which is the subject of United Nations,
European Community or UK sanctions implemented or effective in the United Kingdom under the United Nations Act 1946, the Emergency Laws (Re-enactments and Repeals) Act 1964 or the Anti-terrorism, Crime and Security Act 2001, or under the Treaty
establishing the European Community, or is otherwise the target of any such sanctions. |
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| To: |
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SHEET NO |
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DATE |
| CBRE Group, Inc. |
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6 |
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12 December 2014 |
| CBRE Services, Inc. |
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Qualifications
This opinion is subject to the following qualifications:
| 1 |
Status of the UK Subsidiary Guarantor |
| 1.1 |
The Searches are not conclusive about the status of the UK Subsidiary Guarantor. For instance, Companies House and the High Court are reliant on
third parties to provide them with information; and there will be a time-lag between the occurrence of an event (such as liquidation) and its notification to, and subsequent appearance at, Companies House. |
| 2.1 |
The parties’ rights are subject to laws affecting creditors’ rights generally, such as those relating to insolvency (which includes
bankruptcy, liquidation, administration, administrative receivership and reorganisation). These laws can apply to companies incorporated outside England, as well as to those incorporated in England. |
| 2.2 |
In particular, on an insolvency: |
| |
(a) |
contractual and other personal rights will abate pari passu with all similar rights, and contractual provisions which would conflict with
this principle (such as a pro rata sharing clause) are ineffective; |
| |
(b) |
transactions entered into in the period before the insolvency starts (that period generally being no longer than two years) may be set aside in
certain circumstances; and |
| |
(c) |
the ability of the Trustee to enforce any guarantee under the Guarantee may be subject to limitations. |
| 2.3 |
Any provision in the Indenture which confers, purports to confer or waives a right of set-off or similar right may be ineffective against a
liquidator or creditor. |
Exhibit 12.1
CBRE GROUP, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Dollars in thousands)
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Nine Months
Ended September 30, |
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Year Ended December 31, |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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2009 |
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| Income (loss) from continuing operations before provision for income taxes |
|
$ |
479,151 |
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$ |
508,985 |
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$ |
489,478 |
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$ |
429,538 |
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$ |
272,057 |
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$ |
(645 |
) |
| Less: Equity income (loss) from unconsolidated subsidiaries |
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67,564 |
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64,422 |
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60,729 |
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104,776 |
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26,561 |
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(34,095 |
) |
| Income (loss) from continuing operations attributable to non-controlling interests |
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27,607 |
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7,569 |
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(9,697 |
) |
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6,918 |
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(49,777 |
) |
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(60,979 |
) |
| Add: Distributed earnings of unconsolidated subsidiaries |
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18,556 |
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33,302 |
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20,199 |
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20,794 |
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33,874 |
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13,509 |
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| Fixed charges |
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159,126 |
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260,327 |
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245,322 |
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219,964 |
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272,301 |
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278,379 |
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| Total earnings before fixed charges |
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$ |
561,662 |
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$ |
730,623 |
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$ |
703,967 |
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$ |
558,602 |
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$ |
601,448 |
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$ |
386,317 |
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| Fixed charges: |
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| Portion of rent expense representative of the interest factor (1) |
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$ |
51,713 |
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$ |
68,950 |
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$ |
70,254 |
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$ |
69,715 |
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$ |
63,002 |
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$ |
59,978 |
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| Interest expense |
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84,326 |
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135,082 |
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175,068 |
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150,249 |
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191,151 |
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189,146 |
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| Write-off of financing costs |
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23,087 |
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56,295 |
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— |
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— |
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18,148 |
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29,255 |
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| Total fixed charges |
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$ |
159,126 |
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$ |
260,327 |
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$ |
245,322 |
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$ |
219,964 |
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$ |
272,301 |
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$ |
278,379 |
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| Ratio of earnings to fixed charges |
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3.53 |
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2.81 |
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2.87 |
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2.54 |
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2.21 |
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1.39 |
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| (1) |
Represents one-third of operating lease costs, which approximates the portion that relates to the interest portion. |
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