Exhibit 10.1


EXECUTION COPY




 





 


AGREEMENT AND PLAN OF
MERGER


by and among


TRAMMELL CROW COMPANY,


CB RICHARD ELLIS GROUP,
INC.


and


A-2 ACQUISITION CORP.


October 30,
2006


 




 





 















 


Table of Contents


	
  

  	
   

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1 DEFINITIONS

  	
   

  	
  1

  
	
  1.1.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2 THE MERGER

  	
   

  	
  14

  
	
  2.1.

  	
   

  	
  The Merger

  	
   

  	
  14

  
	
  2.2.

  	
   

  	
  Organizational Documents

  	
   

  	
  14

  
	
  2.3.

  	
   

  	
  Directors and Officers

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3 CONVERSION OF SECURITIES AND RELATED
  MATTERS

  	
   

  	
  15

  
	
  3.1.

  	
   

  	
  Capital Stock of Acquiror

  	
   

  	
  15

  
	
  3.2.

  	
   

  	
  Cancellation of Treasury Stock and Acquiror-Owned
  Shares

  	
   

  	
  15

  
	
  3.3.

  	
   

  	
  Conversion of Company Shares

  	
   

  	
  15

  
	
  3.4.

  	
   

  	
  Exchange of Certificates

  	
   

  	
  15

  
	
  3.5.

  	
   

  	
  Company Stock Options and Other Awards

  	
   

  	
  17

  
	
  3.6.

  	
   

  	
  Dissenting Shares

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE
  COMPANY

  	
   

  	
  19

  
	
  4.1.

  	
   

  	
  Corporate Existence and Power

  	
   

  	
  19

  
	
  4.2.

  	
   

  	
  Corporate Authorization

  	
   

  	
  20

  
	
  4.3.

  	
   

  	
  Governmental Authorization

  	
   

  	
  20

  
	
  4.4.

  	
   

  	
  Non-Contravention

  	
   

  	
  20

  
	
  4.5.

  	
   

  	
  Capitalization

  	
   

  	
  21

  
	
  4.6.

  	
   

  	
  Subsidiaries; Minority Investments

  	
   

  	
  22

  
	
  4.7.

  	
   

  	
  Company SEC Documents

  	
   

  	
  23

  
	
  4.8.

  	
   

  	
  Financial Statements; No Material Undisclosed
  Liabilities

  	
   

  	
  24

  
	
  4.9.

  	
   

  	
  Absence of Certain Changes

  	
   

  	
  25

  
	
  4.10.

  	
   

  	
  Litigation

  	
   

  	
  26

  
	
  4.11.

  	
   

  	
  Taxes

  	
   

  	
  26

  
	
  4.12.

  	
   

  	
  Employee Benefits

  	
   

  	
  27

  
	
  4.13.

  	
   

  	
  Compliance with Laws; Licenses, Permits and
  Registrations

  	
   

  	
  30

  
	
  4.14.

  	
   

  	
  Title to Assets

  	
   

  	
  31

  
	
  4.15.

  	
   

  	
  Intellectual Property

  	
   

  	
  31

  
	
  4.16.

  	
   

  	
  Transaction Fees; Opinions of Financial Advisor

  	
   

  	
  32

  
	
  4.17.

  	
   

  	
  Labor Matters

  	
   

  	
  32

  
	
  4.18.

  	
   

  	
  Material Contracts

  	
   

  	
  34

  
	
  4.19.

  	
   

  	
  Real Estate

  	
   

  	
  36

  
	
  4.20.

  	
   

  	
  Environmental

  	
   

  	
  37

  
	
  4.21.

  	
   

  	
  Insurance

  	
   

  	
  37

  
	
  4.22.

  	
   

  	
  Affiliate Transactions

  	
   

  	
  37

  
	
  4.23.

  	
   

  	
  Required Vote; Board Approval; State Takeover
  Statutes

  	
   

  	
  38

  
	
  4.24.

  	
   

  	
  Information to Be Supplied

  	
   

  	
  38

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PARENT
  AND ACQUIROR

  	
   

  	
  39

  



 



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  5.1.

  	
   

  	
  Corporate Existence and Power

  	
   

  	
  39

  
	
  5.2.

  	
   

  	
  Corporate Authorization

  	
   

  	
  39

  
	
  5.3.

  	
   

  	
  Governmental Authorization

  	
   

  	
  39

  
	
  5.4.

  	
   

  	
  Non-Contravention

  	
   

  	
  39

  
	
  5.5.

  	
   

  	
  Financing

  	
   

  	
  40

  
	
  5.6.

  	
   

  	
  Information to Be Supplied

  	
   

  	
  40

  
	
  5.7.

  	
   

  	
  Solvency; Surviving Corporation After the Merger

  	
   

  	
  40

  
	
  5.8.

  	
   

  	
  Vote/Approval Required

  	
   

  	
  41

  
	
  5.9.

  	
   

  	
  Parent SEC Documents

  	
   

  	
  41

  
	
  5.10.

  	
   

  	
  Litigation

  	
   

  	
  41

  
	
  5.11.

  	
   

  	
  No Business Conduct; Ownership

  	
   

  	
  42

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6 COVENANTS OF THE COMPANY

  	
   

  	
  42

  
	
  6.1.

  	
   

  	
  Company Interim Operations

  	
   

  	
  42

  
	
  6.2.

  	
   

  	
  Stockholder Meeting

  	
   

  	
  49

  
	
  6.3.

  	
   

  	
  Acquisition Proposals; Board Recommendation

  	
   

  	
  50

  
	
  6.4.

  	
   

  	
  Termination of Credit Agreements

  	
   

  	
  53

  
	
  6.5.

  	
   

  	
  Resignation of Directors

  	
   

  	
  53

  
	
  6.6.

  	
   

  	
  Rule 16b-3.

  	
   

  	
  53

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7 COVENANTS OF PARENT AND ACQUIROR

  	
   

  	
  53

  
	
  7.1.

  	
   

  	
  Director and Officer Liability

  	
   

  	
  53

  
	
  7.2.

  	
   

  	
  Employee Benefits

  	
   

  	
  56

  
	
  7.3.

  	
   

  	
  Transfer Taxes

  	
   

  	
  57

  
	
  7.4.

  	
   

  	
  Debt Tender Offer or Redemption

  	
   

  	
  57

  
	
  7.5.

  	
   

  	
  Parent Board of Directors

  	
   

  	
  58

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8 COVENANTS OF PARENT ACQUIROR AND THE COMPANY

  	
   

  	
  58

  
	
  8.1.

  	
   

  	
  Efforts

  	
   

  	
  58

  
	
  8.2.

  	
   

  	
  Governmental Approvals

  	
   

  	
  59

  
	
  8.3.

  	
   

  	
  Proxy Statement

  	
   

  	
  61

  
	
  8.4.

  	
   

  	
  Public Announcements

  	
   

  	
  62

  
	
  8.5.

  	
   

  	
  Access to Information; Notification of Certain
  Matters

  	
   

  	
  62

  
	
  8.6.

  	
   

  	
  Disposition of Litigation

  	
   

  	
  64

  
	
  8.7.

  	
   

  	
  Confidentiality Agreements

  	
   

  	
  64

  
	
  8.8.

  	
   

  	
  Financing Arrangements

  	
   

  	
  64

  
	
  8.9.

  	
   

  	
  Investigation and Agreement by Parent and Acquiror;
  No Other Representations or Warranties

  	
   

  	
  67

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9 CONDITIONS TO MERGER

  	
   

  	
  68

  
	
  9.1.

  	
   

  	
  Conditions to the Obligations of Each Party

  	
   

  	
  68

  
	
  9.2.

  	
   

  	
  Conditions to the Obligations of the Company

  	
   

  	
  69

  
	
  9.3.

  	
   

  	
  Conditions to the Obligations of Parent and Acquiror

  	
   

  	
  69

  
	
  ARTICLE 10 TERMINATION

  	
   

  	
  70

  
	
  10.1.

  	
   

  	
  Termination

  	
   

  	
  70

  
	
  10.2.

  	
   

  	
  Effect of Termination

  	
   

  	
  72

  



 



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  10.3.

  	
   

  	
  Fees and Expenses

  	
   

  	
  75

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11 MISCELLANEOUS

  	
   

  	
  76

  
	
  11.1.

  	
   

  	
  Notices

  	
   

  	
  76

  
	
  11.2.

  	
   

  	
  Survival

  	
   

  	
  77

  
	
  11.3.

  	
   

  	
  Amendments; No Waivers

  	
   

  	
  77

  
	
  11.4.

  	
   

  	
  Successors and Assigns

  	
   

  	
  77

  
	
  11.5.

  	
   

  	
  Counterparts; Effectiveness; Third Party
  Beneficiaries

  	
   

  	
  77

  
	
  11.6.

  	
   

  	
  Governing Law

  	
   

  	
  78

  
	
  11.7.

  	
   

  	
  Jurisdiction

  	
   

  	
  78

  
	
  11.8.

  	
   

  	
  Enforcement

  	
   

  	
  78

  
	
  11.9.

  	
   

  	
  Entire Agreement

  	
   

  	
  79

  
	
  11.10.

  	
   

  	
  Authorship; Representation by Counsel

  	
   

  	
  79

  
	
  11.11.

  	
   

  	
  Severability

  	
   

  	
  79

  
	
  11.12.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  79

  
	
  11.13.

  	
   

  	
  Rules of Construction

  	
   

  	
  79

  
	
  11.14.

  	
   

  	
  Affiliate Liability

  	
   

  	
  80

  



 


	
  EXHIBIT A

  	
   

  	
  Form of Voting Agreement

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE A

  	
   

  	
  Individuals Entering into Employment Agreement
  Amendments

  	
   

  	
   

  



 



 iii














 


AGREEMENT AND PLAN OF
MERGER


This
AGREEMENT AND PLAN OF MERGER (the “Agreement”)
is made and entered into this 30th day of October 2006, by and among Trammell Crow Company, a Delaware
corporation (the “Company”), CB Richard Ellis Group, Inc., a Delaware corporation
(“Parent”), and A-2 Acquisition
Corp., a Delaware corporation wholly owned, directly or indirectly, by Parent (“Acquiror”).


WHEREAS,
the Board of Directors of the Company has (i) determined that the Merger
(as defined herein) is advisable and in the best interest of the Company
Stockholders (as defined below), and (ii) approved the Merger;


WHEREAS,
the Board of Directors of each of Parent and Acquiror has (i) determined
that the Merger is advisable and in the best interest of its respective stockholders,
and (ii) approved the Merger;


WHEREAS,
contemporaneously with the execution of this Agreement, certain employees of
the Company identified on Schedule A hereto have entered into employment
agreements with Parent effected as amendments to existing employment agreements
with the Company pursuant to which CB Richard Ellis, Inc. shall assume such
employment agreements effective as of the Effective Time (as defined below);


WHEREAS,
contemporaneously with the execution of this Agreement, certain Company Stockholders
(as defined below) have entered into voting agreements with Parent,
Acquiror and the Company (the “Voting
Agreements”), each of which is in the form attached hereto as Exhibit
A, pursuant to which, among other things, such Company Stockholders have
agreed to vote their Company Shares (as defined below) in favor of adopting and
approving this Agreement and the Merger; and


WHEREAS,
by resolutions duly adopted, the respective Boards of Directors of the Company,
Parent and Acquiror have approved and adopted this Agreement and the
transactions and other agreements contemplated hereby.


NOW,
THEREFORE, in consideration of the premises and promises contained herein, and
intending to be legally bound, the parties hereto agree as set forth below.


ARTICLE 1


DEFINITIONS


1.1.          Definitions.


(a)           As
used herein, the following terms have the meanings set forth below:


“Acquiror Share” means one share of common
stock of Acquiror, $0.01 par value per share.



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“Acquisition Proposal” means, other than the
Merger, any offer or proposal (whether or not in writing) regarding any of
the following: (a) the acquisition by a Third Party of beneficial
ownership (as defined in Rule 13d-3 as promulgated by the SEC under the
Exchange Act) of more than twenty percent (20%) of the outstanding shares of any class of Equity Interests of
the Company, whether from the Company or pursuant to a tender offer or exchange
offer or otherwise, (b) a merger, consolidation, business combination,
reorganization, recapitalization or similar transaction involving the Company
or any Significant Subsidiary of the Company, (c) a liquidation or dissolution
of the Company or any Significant Subsidiary of the Company, or (d) any sale,
lease, exchange or other disposition of assets (including the sale, lease,
exchange or other disposition of Equity Interests of one or more Company
Subsidiaries) that would result in a Third Party acquiring more than twenty
percent (20%) of the fair market
value on a consolidated basis of the assets of the Company and Company Subsidiaries,
taken as a whole, immediately prior to such transaction; provided, however,
that an Acquisition Proposal shall not include the sale, lease, exchange,
transfer or other disposition of one or more development or investment
properties (whether through the direct sale, exchange, transfer or other
disposition of such properties or the direct sale, exchange, transfer or other
disposition of one or more Special Purpose Vehicles that own such properties)
in the Ordinary Course of Business of the Development and Investment Group.


“Affiliate” means, with respect to any
Person, any other Person, directly or indirectly, controlling, controlled by,
or under common control with, such first Person.  For purposes of this definition, the term “control” (including the correlative terms “controlling”, “controlled by” and “under
common control with”) means the possession, direct or indirect, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise.


“Alliance Agreements” means the Company’s
alliance or affiliation agreements with Savills plc, J.J. Barnicke and Grant
Samuels.


“Antitrust Laws” means the Sherman Antitrust
Act, the Clayton Antitrust Act, the HSR Act, the Federal Trade Commission Act
and all other federal, state and foreign Laws that are designed or intended to
prohibit, restrict or regulate actions having the purpose or effect of
monopolization or restriction of trade or business or competition through
merger or acquisition, each as amended.


“Business Day” means any day, other than a
Saturday, Sunday or one on which banks are authorized by Law to be closed in
Dallas, Texas or Los Angeles, California.


“Code” means the U.S. Internal Revenue Code
of 1986, as amended, together with the rules and regulations promulgated
thereunder.


“Company Balance Sheet” means the Company’s
consolidated balance sheet included in the Company 10-K, as amended, relating
to its fiscal year ended on December 31, 2005.


“Company Charter” means the certificate of
incorporation of the Company.



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“Company Damages” means any loss or damage
of any nature suffered as a result of the breach by Parent or Acquiror of this
Agreement or any representation, warranty, covenant or agreement contained in
this Agreement.


“Company Entities” means, collectively, the
Company Subsidiaries, Special Purpose Vehicles and the Company Minority
Investments.


“Company Material Adverse Effect” means any
material adverse effect on (a) the business, assets, liabilities, financial
condition or results of operations of the Company and its Subsidiaries, taken
as a whole (but with respect to Project Entities and Company Minority
Investments, only to the extent of such effects on the Company’s direct or
indirect Equity Interests therein and/or on the obligations or liabilities of
the Company and its Subsidiaries that are not Project Entities or Company
Minority Investments), or (b) the ability of the Company to perform its
obligations under this Agreement or the other agreements and transactions
contemplated hereby to which it is a party; provided, however,
that, in determining whether there has been a Company Material Adverse Effect
or whether a Company Material Adverse Effect would be reasonably likely to
occur, this definition shall exclude any material adverse effect to the extent
arising out of, attributable to or resulting from:


(i)            any
generally applicable change in Law or GAAP or interpretation of any thereof;


(ii)           (A)
any public announcement prior to the date of this Agreement of discussions
among the parties hereto regarding the transactions contemplated hereby,
(B) the announcement of this Agreement, (C) the pendency of the
consummation of the Merger or the transactions contemplated hereby, or (D) any
suit, action or proceeding arising out of or in connection with this Agreement
or the transactions contemplated hereby (other than causes of action brought by
Parent or Acquiror for breach of this Agreement);


(iii)          actions
or inactions specifically permitted by a prior written waiver by Parent of
performance by the Company of any of its obligations under this Agreement;


(iv)          changes in conditions generally affecting the
industries in which the Company and its Subsidiaries conduct their business;


(v)           general economic, political or financial market
conditions;


(vi)          any
outbreak or escalation of hostilities (including, without limitation, any
declaration of war by the U.S. Congress) or acts of terrorism;


(vii)         the
termination after the date of this Agreement of any employee’s or independent
contractor’s employment by, or independent contractor relationship with, the
Company or any of its Subsidiaries, or any notice thereof, other than as a
result of any breach by the Company or any of its Subsidiaries of the terms of
this Agreement;



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(viii)        the
failure of the Company or any Company Subsidiary to comply with any applicable
requirements of any international or foreign Laws arising out of or in
connection with this Agreement or the transactions contemplated hereby;


(ix)           the
failure of the Company or any Company Subsidiary to obtain any consent,
approval, action, authorization or permit of any Third Party with respect to
any Contract set forth in Section 4.4 of the Company Disclosure Schedule
arising out of or in connection with this Agreement or transactions
contemplated hereby;


(x)            the
cancellation after the date hereof or notice of cancellation after the date
hereof of third-party property management, construction management, building
management, development management or brokerage Contracts to which the Company
or any of its Subsidiaries is or may become a party unless the applicable
Contract would have been cancelled by the counterparty thereto regardless of
this Agreement or the transactions contemplated by this Agreement or any
discussions or negotiations relating thereto; provided, that it shall be
presumed that any such cancellation resulted from or was due to this Agreement,
the transactions contemplated by this Agreement or any discussions or
negotiations relating thereto unless Parent proves that the Contract would have
been cancelled regardless of this Agreement or the transactions contemplated by
this Agreement or any discussions or negotiations relating thereto;


(xi)           any
termination of any of the Alliance Agreements, the Meghraj Joint Venture or
Krombach Joint Venture by a counterparty thereto, or the exercise of any
purchase or sale rights by the counterparties thereto;


(xii)          the
termination of any agreements relating to Special Purpose Vehicles or the
liquidation or dissolution of any Special Purpose Vehicles, in each case, in
the Ordinary Course of Business;


(xiii)         any
(A) required change in accounting method with respect to the Company’s Equity
Interest in Savills plc, (B) adverse change in the market price or trading
volume of the ordinary shares of Savills plc or (C) adverse change in the
business, assets, liabilities, financial condition or results of operations of
Savills plc;


(xiv)        any
adverse change in the market price or trading volume of the Company Shares
after the date hereof; provided, that the underlying cause of any such
change may be taken into consideration in making such determination;


(xv)         any
failure by the Company to meet internal projections or forecasts or Third
Party  published estimates of revenue or
earnings predictions for any period ending on or after the date hereof; provided,
that the underlying cause of any such failure may be taken into consideration
in making such determination;


(xvi)        any
expenses incurred in connection with the negotiation, documentation and
execution of this Agreement, the actions required by Sections 6.1 through 6.6
(inclusive) and Article 8 and the consummation of the Merger, including, as a
result of the Company’s entry into, and the payment of any amounts due to, or
the provision of any other benefits (including benefits relating to
acceleration of stock options) to, any



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officers or employees under employment contracts, non-competition
agreements, employee benefit plans, severance, bonus or retention arrangements
or other arrangements in existence as of the date of this Agreement or as
disclosed in this Agreement, in each case to the extent that the foregoing do
not constitute a breach of any representation, warranty, covenant or agreement
set forth in this Agreement; or


(xvii)       (A)
the taking of any action outside the Ordinary Course of Business required by
this Agreement, or (B) the failure to take any action prohibited by this
Agreement.


“Company Minority Investment” means a
Minority Investment of the Company or any of its Subsidiaries that does not
meet the definition of a Special Purpose Vehicle.


 “Company
Option” means any option to purchase Company Shares, whether granted
pursuant to the Company Options Plans or otherwise, but excluding purchase
rights under Purchase Plans.


“Company Option Plans” means the Company’s
1997 Stock Option Plan and the Company’s Long-Term Incentive Plan, each as
amended, supplemented or otherwise modified.


“Company SEC Documents” means (a) the
annual reports on Form 10-K of the Company for the years ended
December 31, 2003, 2004 and 2005 (each a “Company 10-K”), (b) the quarterly reports on Form 10-Q of
the Company for the quarters ended March 31, 2006 and June 30, 2006,
(c) the Company’s proxy and information statements relating to meetings
of, or actions taken without a meeting by, the Company Stockholders, since
December 31, 2002, and (d) all other reports, filings, registration
statements and other documents filed by the Company with the SEC since December
31, 2002; in each case as may be amended, including all exhibits, appendices
and attachments thereto, whether filed therewith or incorporated by reference
therein.


“Company Share” means one share of common
stock of the Company, par value $0.01 per share.


“Company Stockholders” means the
stockholders of the Company.


“Company Subsidiary” means a Subsidiary of
the Company or any of its Subsidiaries.


“Confidentiality Agreement” means the
Confidentiality Agreement, dated as of October 18, 2005, between Parent and the
Company, as amended and supplemented on October 9, 2006.


“Contract”
means any contract, agreement, arrangement, commitment, letter of intent,
memorandum of understanding, license, lease, promise, instrument, or other
similar understanding, whether written or oral, in each case that is legally
binding as of the date in question.


“Credit Agreements” means (i) the Credit
Agreement, dated as of June 28, 2005, among the Company, Bank of America, N.A.,
as administrative agent, swing line lender and issuing bank, and the other
lender parties thereto, as amended through the date hereof and (ii) the Letter



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Agreement, dated June 15, 2006, between Trammell Crow
Company (UK) Limited and The Royal Bank of Scotland.


“Development and Investment Activities”
means the real estate development and investment activities conducted by the
Company primarily through its Development and Investment Group in the Ordinary
Course of Business.


“Development and Investment Group” means the
Company’s Development and Investment group described in the Company 10-K
through which the Company conducts Development and Investment Activities.


“Environmental Laws” shall mean all Laws
relating to the protection of the indoor or outdoor environment (including,
without limitation, the quality of the ambient air, soil, surface water or
groundwater, natural resources or human health or safety).


“Environmental Permits” shall mean all
permits, licenses, registrations, and other authorizations required under
applicable Environmental Laws.


“Equity Interest” means, with respect to any
Person, any and all shares, interests, participations, rights in, or other
equivalents (however designated and whether voting or non-voting) of, such
Person’s capital stock or other equity interests (including partnership or
membership interests in a partnership or limited liability company or any other
interest or participation that confers on a Person the right to receive a share
of the profits and losses, or distributions of assets, of the issuing Person),
whether outstanding on the date hereof or issued after the date hereof.


“Exchange Act” means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder.


“GAAP” means United States generally
accepted accounting principles, applied on a consistent basis.


“Governmental Entity” means any federal,
state, local, international or foreign governmental authority, any
transgovernmental authority or any court, administrative or regulatory agency
or commission or other governmental authority, agency or body.


“HSR Act” means Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.


“Indebtedness” means all indebtedness for
borrowed money.


“Independent Contractor” means brokers,
managers or developers who are properly classified as “independent contractors”
rather than “employees” for U.S. federal income tax purposes.


“Initiation Date” means (A) the first date
after the date hereof on which Parent shall have received the Required
Financial Information with respect to applicable financial periods ending on
and prior to September 30, 2006 that the Company is required to provide
pursuant to Section 8.8; provided that, anything in the foregoing
clause (A) to the contrary notwithstanding,



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(B) beginning on (and including) February 15, 2007, if
the Closing Date does not occur on or prior to February 14, 2007, then in
lieu of the date determined pursuant to clause (A) the Initiation Date shall be
the later of (i) the first date on which Parent shall have received the
Required Financial Information with respect to financial periods ending on and
prior to December 31, 2006 that the Company is required to provide
pursuant to Section 8.8 or (ii) March 1, 2007 (unless (x) Parent’s
or Acquiror’s material breach of, or failure to perform in any material respect,
any representation, warranty, covenant or agreement set forth in this Agreement
was the principal cause of the failure of the Closing to occur on or before
February 14, 2007 and (y) the conditions set forth in Sections 9.1 and 9.3
(other than the delivery by the Company of the officer’s certificate
contemplated by Section 9.3(a)) were satisfied on February 14, 2007, in which
case this clause (B) will not be applicable); provided that anything in
the foregoing clauses (A) and (B) to the contrary notwithstanding, (C)
beginning on (and including) May 16, 2007, if the Closing Date does not occur
on or prior to May 15, 2007, then in lieu of the date determined pursuant
to clause (B) the Initiation Date shall be the later of (1) the first date on
which Parent shall have received the Required Financial Information with
respect to financial periods ending on and prior to March 31, 2006 that
the Company is required to provide pursuant to Section 8.8 or (2) May 10, 2007
(unless (x) Parent’s or Acquiror’s material breach of, or failure to perform in
any material respect, any representation, warranty, covenant or agreement set
forth in this Agreement was the principal cause of the failure of the Closing
to occur on or before May 15, 2007 and (y) the conditions set forth in Sections
9.1 and 9.3 (other than the delivery by the Company of the officer’s
certificate contemplated by Section 9.3(a)) were satisfied on May 15, 2007, in
which case this clause (C) will not be applicable).


“Knowledge” means, with respect to the matter
in question, if any of the employees of the Company listed in Section 1.1
of the Company Disclosure Schedule or of Parent or Acquiror listed in Section
1.1 of the Parent and Acquiror Disclosure Schedule, has actual knowledge,
without investigation, of the matter.


“Krombach Joint Venture” means “Krombach
Trammell Crow, L.L.C.”


“Law” means any federal, state, local,
international or foreign (including the European Union) law (including common
law), rule, regulation, judgment, code, ruling, statute, order, directives,
decree, injunction or ordinance or other legal requirement.


“Lien” means, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind in
respect of an asset.


“Marketing Period” means the first period of
thirty-seven (37) consecutive calendar days after the Initiation Date;
provided, that (i) if the Marketing Period would otherwise terminate on any day
from and including December 21, 2006 through and including January 2, 2007,
then the Marketing Period shall end on January 3, 2007, (ii) the Marketing
Period shall not be deemed to have commenced if, prior to the completion of the
Marketing Period, Ernst & Young LLP shall have withdrawn its audit opinion
with respect to any financial statements contained in the Required Financial
Information or indicated that such audit opinion should not be relied upon, and
(iii) the Marketing Period shall not terminate any earlier than December 18,
2006.



 7
 






 



 


“Materials of Environmental Concern” means
any substance or waste defined or regulated as hazardous, acutely hazardous, or
toxic substance or waste (or any other words of similar import) under
Environmental Laws (including the federal Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and the federal Resource
Conservation and Recovery Act, as amended) and any other material or
organism that would be reasonably expected to result in liability under any
Environmental Law (including oil, petroleum products, asbestos, polychlorinated
biphenyls and mold).


“Meghraj Joint Venture” means “Trammell Crow
Meghraj”.


“Minority Investments” means, with respect
to any Person, any corporation or other entity (including a division or line of
business of such corporation or other entity) (A) of which such Person
and/or any of its Subsidiaries beneficially owns a portion of the Equity
Interests that is insufficient to make such corporation or other entity a
Subsidiary of such Person, and (B) over which such Person and/or any of
its Subsidiaries does not exercise control.


 “Ordinary
Course of Business” means, with respect to a Person, the ordinary
course of business consistent with past practice of such Person and its
Subsidiaries.


“Organizational
Documents” means, with respect to a Person, the articles of incorporation,
certificate of incorporation, charter, bylaws, articles of formation, articles
of association, regulations, operating agreement, certificate of limited
partnership, partnership agreement, limited liability company agreement and all
other similar documents, instruments or certificates executed, adopted, or
filed in connection with the creation, formation, or organization of such
Person, including any amendments thereto.


“Parent Material Adverse Effect” means any
result, occurrence, condition, fact, change, violation, event or effect of any
of the foregoing that, individually or in the aggregate with any such other
results, occurrences, conditions, facts, changes, violations, events or
effects, prevents or materially impairs the ability of Parent or Acquiror to
consummate the Merger and the other transactions contemplated by this Agreement
in accordance with the terms hereof.


“Parent SEC Documents” means (a) the annual
reports on Form 10-K of Parent for the year ended December 31, 2005, (b) the
quarterly reports on Form 10-Q of Parent for the quarters ended March 31, 2006
and June 30, 2006, (c) Parent’s proxy and information statements relating to
meetings of, or actions taken without a meeting by, the stockholders of Parent,
since December 31, 2004, and (d) all other reports, filings, registration
statements and other documents filed by Parent with the SEC since December 31,
2004; in each case as may be amended, including all exhibits, appendices and
attachments thereto, whether filed therewith or incorporated by reference
therein.


“Permitted Liens” means (a) Liens for
utilities and current Taxes not yet due and payable, (b) mechanics’,
carriers’, workers’, repairers’, materialmen’s, warehousemen’s and other
similar Liens arising or incurred in the Ordinary Course of Business,
(c) Liens for Taxes being contested in good faith for which appropriate
reserves have been included on the balance sheet of the applicable Person, (d)
easements, restrictions, covenants or rights of way currently of record against
any of the Owned Real Property which do not interfere with, or increase the
cost



 8
 






 



 


of operation of, the business of the Company and its
Subsidiaries in any material respect or materially
affect the value or marketability of such Owned Real Property, (e) minor
irregularities of title with respect to any of the Owned Real Property which do
not interfere with, or increase the cost of the business of the Company and its
Subsidiaries in any material respect or materially affect the value or
marketability of such Owned Real Property and (f) Liens under the Credit
Agreements.


“Person” means an individual, corporation,
limited liability company, partnership, association, trust or any other entity
or organization, including any Governmental Entity.


“Project Entity” means a Special Purpose
Vehicle that owns a Development and Investment Activities project or is the
general partner of any such Special Purpose Vehicle and shall include Trammell
Crow Investment Fund II, L.P., Trammell Crow Investment Fund III L.P., Trammell
Crow Investment Fund IV, L.P., Trammell Crow Investment Fund V, L.P. and
TCC-Lion Industrial, LLC.


“Proxy Statement” means the proxy statement
to be mailed to the Company Stockholders in connection with the Company
Stockholder Approval, together with any amendments or supplements thereto.


“SEC” means the Securities and Exchange
Commission.


“Securities Act” means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.


“Significant Subsidiary” means a “significant
subsidiary” as such term is defined in Rule 12b-2 of the Exchange Act.


“Special Purpose Vehicle” means any Company
Subsidiary or Company Minority Investment whose activities with respect to the
Company are limited to, and whose assets are used only in connection with, the
Company’s Development and Investment Activities.


“SPV Guarantees” means, collectively,
(i) completion or performance guarantees guaranteeing the obligations of a
Project Entity, (ii) budget guarantees guaranteeing the obligations of a Project
Entity, and (iii) other guarantees or similar obligations entered into in
the course of Development and Investment Activities with respect to the
obligations of Project Entities for environmental claims, fraud, misapplication
of cash and failure to comply with bankruptcy remote and special purpose entity
requirements.


“Stockholders” means Company Stockholders.


“Subsidiary” means, with respect to any
Person, any corporation, limited liability company, partnership or other entity
(including joint ventures) of which such Person, directly or indirectly,
(a) has the right or ability to elect, designate or appoint a majority of
the board of directors or other Persons performing similar functions for such
entity, whether as a result of the beneficial ownership of Equity Interests,
contractual rights or otherwise or (b) beneficially owns a majority of the
voting Equity Interests (including general partner Equity Interests).



 9














 


“Superior Proposal” means any Acquisition
Proposal (with all of the percentages included in the definition of Acquisition
Proposal increased to fifty percent (50%) for purposes of this definition) that
the Company’s Board of Directors concludes in good faith, after consultation
with its outside legal counsel and financial advisors, (a) is on terms
that are more favorable, from a financial point of view, to the Company
Stockholders than the terms of the Merger (including any written proposal by
Parent and Acquiror received by the Company to amend the terms of this
Agreement) (taking into account all legal, financial, regulatory and other
aspects of the proposal, including to the extent financing is required, the
terms and conditions of the proposed financing); and (b) is reasonably
capable of being consummated.


“Taxes” means all United States federal,
state, local or foreign income, profits, estimated gross receipts, windfall
profits, environmental (including taxes under Section 59A of the Code),
severance, property, intangible property, occupation, production, sales, use,
license, excise, emergency excise, franchise, capital gains, capital stock,
employment, withholding, social security (or similar), disability, transfer,
registration, stamp, payroll, employer insurance, goods and services, value added, alternative or
add-on minimum tax, estimated, or any other tax, custom, duty or governmental
fee, or other like assessment or charge of any kind whatsoever, together with
any interest, penalties, fines, related liabilities or additions to tax that
may become payable in respect therefor imposed by any Governmental Entity,
whether disputed or not.


“Third Party” means a Person (or group of
Persons) other than Parent, Acquiror or any of their respective Subsidiaries.


“WARN” means the Worker Adjustment and
Retraining Notification Act, as amended.


(b)           Each of the
following terms is defined in the Section set forth opposite such term:


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Trammell Crow Bank

  	
   

  	
  4.16(a)

  
	
  2006 Budget

  	
   

  	
  6.1(a)(ix)

  
	
  2006 Plans

  	
   

  	
  7.2(c)

  
	
  Acquiror

  	
   

  	
  Preamble

  
	
  Acquiror Share

  	
   

  	
  1.1(a)

  
	
  Acquisition Proposal

  	
   

  	
  1.1(a)

  
	
  Affiliate

  	
   

  	
  1.1(a)

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Alliance Agreements

  	
   

  	
  1.1(a)

  
	
  Alternative Financing

  	
   

  	
  8.8(a)

  
	
  Antitrust Conditions

  	
   

  	
  8.2(h)

  
	
  Antitrust Division

  	
   

  	
  8.1(b)

  
	
  Antitrust Laws

  	
   

  	
  1.1(a)

  
	
  Business Day

  	
   

  	
  1.1(a)

  
	
  Book-Entry Shares

  	
   

  	
  3.4(a)

  
	
  Capital Commitments

  	
   

  	
  6.1(b)

  
	
  Capital Investments

  	
   

  	
  6.1(b)

  



 



 10
 






 



 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Certificate of Merger

  	
   

  	
  2.1(b)

  
	
  Certificates

  	
   

  	
  3.4(a)

  
	
  Claim

  	
   

  	
  4.10

  
	
  Closing

  	
   

  	
  2.1(d)

  
	
  Closing Date

  	
   

  	
  2.1(d)

  
	
  Code

  	
   

  	
  1.1(a)

  
	
  Commitment Letter

  	
   

  	
  5.5

  
	
  Company

  	
   

  	
  Preamble

  
	
  Company 10-K

  	
   

  	
  1.1(a)

  
	
  Company 401(k) Plan

  	
   

  	
  7.2(c)

  
	
  Company Balance Sheet

  	
   

  	
  1.1(a)

  
	
  Company Charter

  	
   

  	
  1.1(a)

  
	
  Company Damages

  	
   

  	
  1.1(a)

  
	
  Company Employees

  	
   

  	
  4.12(a)

  
	
  Company Entities

  	
   

  	
  1.1(a)

  
	
  Company Independent Contractors

  	
   

  	
  4.12(a)

  
	
  Company Intellectual Property

  	
   

  	
  4.15

  
	
  Company Minority Investment

  	
   

  	
  1.1(a)

  
	
  Company Material Adverse Effect

  	
   

  	
  1.1(a)

  
	
  Company Option

  	
   

  	
  1.1(a)

  
	
  Company Option Plans

  	
   

  	
  1.1(a)

  
	
  Company Plans

  	
   

  	
  4.12(a)

  
	
  Company Preferred Stock

  	
   

  	
  4.5(a)

  
	
  Company Recommendation

  	
   

  	
  4.23(b)

  
	
  Company Returns

  	
   

  	
  4.11(a)

  
	
  Company SEC Documents

  	
   

  	
  1.1(a)

  
	
  Company Securities

  	
   

  	
  4.5(b)

  
	
  Company Share

  	
   

  	
  1.1(a)

  
	
  Company Stockholder Approval

  	
   

  	
  4.23(a)

  
	
  Company Stockholder Meeting

  	
   

  	
  6.2

  
	
  Company Stockholders

  	
   

  	
  1.1(a)

  
	
  Company Subsidiary

  	
   

  	
  1.1(a)

  
	
  Company Termination
  Fee

  	
   

  	
  10.2(b)(i)

  
	
  Confidentiality Agreement

  	
   

  	
  1.1(a)

  
	
  Consent Solicitation

  	
   

  	
  7.4(a)

  
	
  Continuing Employees

  	
   

  	
  7.2(a)

  
	
  Contract

  	
   

  	
  1.1(a)

  
	
  Controlled Group

  	
   

  	
  4.12(c)(iii)

  
	
  Credit Agreements

  	
   

  	
  1.1(a)

  
	
  Debt Tender Offer

  	
   

  	
  7.4(a)

  
	
  Default

  	
   

  	
  4.18(c)

  
	
  Development and Investment Activities

  	
   

  	
  1.1(a)

  
	
  Development and Investment Group

  	
   

  	
  1.1(a)

  
	
  DGCL

  	
   

  	
  2.1(a)

  



 



 11
 






 



 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Dissenting Shares

  	
   

  	
  3.6(a)

  
	
  Effective Time

  	
   

  	
  2.1(b)

  
	
  End Date

  	
   

  	
  10.1(b)(i)

  
	
  Environmental Laws

  	
   

  	
  1.1(a)

  
	
  Environmental Permits

  	
   

  	
  1.1(a)

  
	
  Equity Interest

  	
   

  	
  1.1(a)

  
	
  ERISA

  	
   

  	
  4.12(a)

  
	
  Exchange Act

  	
   

  	
  1.1(a)

  
	
  Exchange Agent

  	
   

  	
  3.4(a)

  
	
  Exchange Fund

  	
   

  	
  3.4(a)

  
	
  Exclusivity Arrangement

  	
   

  	
  4.18(c)

  
	
  Financing

  	
   

  	
  5.5

  
	
  Foreign Benefit Plans

  	
   

  	
  4.12(i)

  
	
  FTC

  	
   

  	
  8.1(b)

  
	
  GAAP

  	
   

  	
  1.1(a)

  
	
  Governmental Entity

  	
   

  	
  1.1(a)

  
	
  HSR Act

  	
   

  	
  1.1(a)

  
	
  Indebtedness

  	
   

  	
  1.1(a)

  
	
  Indemnified Parties

  	
   

  	
  7.1(b)

  
	
  Indenture

  	
   

  	
  7.4(b)

  
	
  Independent Contractor

  	
   

  	
  1.1(a)

  
	
  Initiation Date

  	
   

  	
  1.1(a)

  
	
  Joint Defense Agreement

  	
   

  	
  8.2(c)

  
	
  Minority Investment

  	
   

  	
  1.1(a)

  
	
  Knowledge

  	
   

  	
  1.1(a)

  
	
  Krombach Joint Venture

  	
   

  	
  1.1(a)

  
	
  Labor Laws

  	
   

  	
  4.17(a)

  
	
  Law

  	
   

  	
  1.1(a)

  
	
  Leased Property

  	
   

  	
  4.19(a)

  
	
  Leases

  	
   

  	
  4.19(a)

  
	
  Lender

  	
   

  	
  5.5

  
	
  Lien

  	
   

  	
  1.1(a)

  
	
  Marketing Period

  	
   

  	
  1.1(a)

  
	
  Matching Bid

  	
   

  	
  6.3(b)

  
	
  Material Contract

  	
   

  	
  4.18(a)

  
	
  Materials of Environmental Concern

  	
   

  	
  1.1(a)

  
	
  Meghraj Joint Venture

  	
   

  	
  1.1(a)

  
	
  Merger

  	
   

  	
  2.1(a)

  
	
  Merger Consideration

  	
   

  	
  3.3

  
	
  Minority Investments

  	
   

  	
  1.1(a)

  
	
  Modified Superior Proposal

  	
   

  	
  6.3(d)

  
	
  Notes

  	
   

  	
  7.4(a)

  
	
  Notice of Superior Proposal

  	
   

  	
  6.3(d)

  
	
  Order

  	
   

  	
  4.10

  



 



 12
 






 



 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Ordinary Course of Business

  	
   

  	
  1.1(a)

  
	
  Organizational Documents

  	
   

  	
  1.1(a)

  
	
  Owned Real Property

  	
   

  	
  4.19(b)

  
	
  Parent

  	
   

  	
  Preamble

  
	
  Parent Antitrust Termination Fee

  	
   

  	
  10.2(c)

  
	
  Parent Breach Termination Fee

  	
   

  	
  10.2(d)

  
	
  Parent Liability Cap

  	
   

  	
  10.2(g)

  
	
  Parent Litigation

  	
   

  	
  5.10

  
	
  Parent Material Adverse Effect

  	
   

  	
  1.1(a)

  
	
  Parent Party

  	
   

  	
  10.2(d)

  
	
  Parent SEC Documents

  	
   

  	
  1.1(a)

  
	
  Participation Agreements

  	
   

  	
  4.19(g)

  
	
  Participation Party

  	
   

  	
  4.19(g)

  
	
  Permits

  	
   

  	
  4.13(b)

  
	
  Permitted Actions

  	
   

  	
  6.3(a)(iv)

  
	
  Permitted Liens

  	
   

  	
  1.1(a)

  
	
  Person

  	
   

  	
  1.1(a)

  
	
  Project Entities

  	
   

  	
  1.1(a)

  
	
  Proxy Statement

  	
   

  	
  1.1(a)

  
	
  Purchase Plans

  	
   

  	
  3.5(b)

  
	
  Real Property

  	
   

  	
  4.19(b)

  
	
  Representatives

  	
   

  	
  6.3(a)

  
	
  Requested Consents

  	
   

  	
  7.4(a)

  
	
  Required Financial Information

  	
   

  	
  8.8(b)(ii)

  
	
  Restricted Share

  	
   

  	
  3.5(c)

  
	
  SEC

  	
   

  	
  1.1(a)

  
	
  Secretary of State

  	
   

  	
  2.1(b)

  
	
  Securities Act

  	
   

  	
  1.1(a)

  
	
  Services

  	
   

  	
  7.4

  
	
  Significant Subsidiary

  	
   

  	
  1.1(a)

  
	
  Special Purpose Vehicle

  	
   

  	
  1.1(a)

  
	
  SPV Guarantees

  	
   

  	
  1.1(a)

  
	
  Stock Plan Suspension Date

  	
   

  	
  3.5(b)

  
	
  Stockholders

  	
   

  	
  1.1(a)

  
	
  Subsidiary

  	
   

  	
  1.1(a)

  
	
  Superior Proposal

  	
   

  	
  1.1(a)

  
	
  Surviving Corporation

  	
   

  	
  2.1(a)

  
	
  Taxes

  	
   

  	
  1.1(a)

  
	
  Tendered Notes

  	
   

  	
  7.4(a)

  
	
  Third Party

  	
   

  	
  1.1(a)

  
	
  Title Insurance Policy

  	
   

  	
  4.19(b)

  
	
  Transfer Taxes

  	
   

  	
  7.3

  
	
  Unit

  	
   

  	
  3.5(d)

  
	
  Voting Agreements

  	
   

  	
  Recitals

  



 



 13
 






 



 


	
  Term

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  WARN

  	
   

  	
  1.1(a)

  



 


ARTICLE 2


THE
MERGER


2.1.          The Merger.


(a)           At the Effective Time, Acquiror shall be merged with and
into the Company (the “Merger”)
in accordance with the terms and conditions of this Agreement and the Delaware
General Corporation Law (as amended, the “DGCL”), at
which time the separate corporate existence of Acquiror shall cease and the
Company shall continue its existence.  In
its capacity as the corporation surviving the Merger, this Agreement sometimes
refers to the Company as the “Surviving Corporation.”


(b)           On the Closing Date, the Company and Acquiror will file a
certificate of merger or other appropriate documents (the “Certificate of Merger”) with the Delaware Secretary of State
(the “Secretary of State”) and make all other
filings or recordings required by the DGCL in connection with the Merger.  The Merger shall become effective on the date
and at the time when the Certificate of Merger is duly filed with and accepted
by the Secretary of State, or at such later date and time as is agreed upon by
the parties and specified in the Certificate of Merger (such date and time as
the Merger becomes effective is referred to herein as the “Effective
Time”).


(c)           From and after the Effective Time, the Merger shall have
the effects set forth in the DGCL.


(d)           The closing of the Merger (the “Closing”) shall be held at the offices of Simpson Thacher
& Bartlett LLP, 2550 Hanover Street, Palo Alto, California 94304 (or such
other place as agreed by the parties) at 8:00 a.m., Pacific time, on the second
Business Day on which all of the conditions set forth in Article 9 (other
than those conditions that by their nature are to be satisfied at the Closing)
capable of satisfaction prior to the Closing (it being understood that the
occurrence of the Closing shall remain subject to the satisfaction or waiver of
the conditions that by their terms are to be satisfied at Closing) are
satisfied or waived by the party or parties permitted to do so, unless the
parties hereto agree to another date and time; provided, however,
that Parent and Acquiror shall not be required to effect the Closing prior to
the later of (i) the earlier of (A) a date during the Marketing Period
specified by Parent on no less than three (3) Business Days’ prior written
notice to the Company and (B) the end of the Marketing Period and (ii) the
earlier of (x) the first date on which the Requested Consents shall have been
obtained and the Debt Tender Offer completed or (y) March 19, 2007.  The date upon which the Closing occurs is
hereinafter referred to as the “Closing Date”.


2.2.          Organizational Documents.  The Certificate of Merger shall provide that
at the Effective Time (a) the Company’s certificate of incorporation in
effect immediately prior to



 14
 






 



 


the Effective Time shall be the Surviving Corporation’s
certificate of incorporation and (b) the Acquiror’s by-laws in effect
immediately prior to the Effective Time shall be the Surviving Corporation’s
by-laws, in each case until amended in accordance with applicable Law; provided,
however, that any such amendment shall not amend the certificate of
incorporation or by-laws in a manner prohibited by or inconsistent with Section
7.1.


2.3.          Directors and Officers.  From and after the Effective Time (until such
time as their successors are duly elected or appointed and qualified),
(A) Acquiror’s directors at the Effective Time shall be the Surviving
Corporation’s directors and (B) the Company’s officers immediately prior
to the Effective Time shall be the Surviving Corporation’s officers.


ARTICLE 3


CONVERSION
OF SECURITIES AND RELATED MATTERS


3.1.          Capital Stock of Acquiror.  As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any Company Share or
Acquiror Share, each Acquiror Share issued and outstanding immediately prior to
the Effective Time shall be converted into one share of common stock, par value
$0.01 per share, of the Surviving Corporation.


3.2.          Cancellation of Treasury Stock and Acquiror-Owned
Shares.  As of the
Effective Time, by virtue of the Merger and without any action on the part of
the holder of any Company Share or Acquiror Share, each Company Share held by
the Company as treasury stock or owned by Parent or any Subsidiary of Parent
immediately prior to the Effective Time shall be canceled and retired, and no
payment shall be made or consideration delivered or deliverable in respect
thereof.


3.3.          Conversion of Company Shares.  As of the Effective Time, by virtue of the
Merger and without any action on the part of the holder of any Company Share or
Acquiror Share, each Company Share (excluding any Restricted Shares whose
restrictions do not lapse as of the Effective Time) issued and outstanding
immediately prior to the Effective Time (other than (a) shares to be
cancelled in accordance with Section 3.2 and (b) Dissenting
Shares) shall be converted into the right to receive in cash, without
interest, an amount equal to $49.51 (the “Merger
Consideration”).


3.4.          Exchange of Certificates.


(a)           Prior to the Effective Time, Acquiror shall appoint a bank
or trust company reasonably acceptable to the Company as an agent (the “Exchange Agent”) for the benefit of holders of Company
Shares for the purpose of exchanging, pursuant to this Article 3,
certificates representing the Company Shares (the “Certificates”)
and Company Shares represented by book-entry (“Book-Entry
Shares”).  On the Closing
Date, Parent will, and will cause Acquiror to, make available to and deposit
with the Exchange Agent the aggregate Merger Consideration to be paid in
respect of Company Shares pursuant to this Article 3 (the “Exchange Fund”), and except as contemplated by
Section 3.4(e) or Section 3.4(g) hereof, the Exchange Fund
shall not be used for any other purpose. 
The Exchange Agent shall invest the Merger



 15
 






 



 


Consideration as directed by the Acquiror or
the Surviving Corporation, as the case may be, on a daily basis.  Any interest and other income resulting from
such investments shall be paid to the Surviving Corporation.  To the extent that there are losses with
respect to such investments, or the Exchange Fund diminishes for other reasons
below the level required to make prompt payments of the Merger Consideration as
contemplated hereby, Parent and the Surviving Corporation shall promptly
replace or restore the portion of the Exchange Fund lost through investments or
other events so as to ensure that the Exchange Fund is, at all times,
maintained at a level sufficient to make such payments.


(b)           As promptly as practicable after the Effective Time but
not later than ten (10) Business Days thereafter, the Surviving Corporation
shall send, or shall cause the Exchange Agent to send, to each record holder of
Certificates and each holder of Book-Entry Shares a letter of transmittal and
instructions (which shall be in customary form and specify that delivery shall
be effected, and risk of loss and title shall pass, only upon delivery of the
Certificates to the Exchange Agent or, in the case of Book-Entry Shares, upon
adherence to the procedures set forth in the Letter of Transmittal), for use in
the exchange contemplated by this Section 3.4.  Upon surrender of a Certificate or Book-Entry
Share to the Exchange Agent, together with a duly executed letter of
transmittal, the holder shall be entitled to receive, in exchange therefor, the
Merger Consideration as provided in this Article 3 in respect of the
Company Shares represented by the Certificate or the Book-Entry Share, after
giving effect to any required withholding Tax. 
Until surrendered as contemplated by this Section 3.4, each
Certificate and Book-Entry Share shall be deemed after the Effective Time to
represent only the right to receive the Merger Consideration.


(c)           All cash paid upon surrender of Certificates or Book-Entry
Shares in accordance with the terms hereof shall be deemed to have been issued
in full satisfaction of all rights pertaining to Company Shares represented
thereby.  From and after the Effective
Time, the holders of Certificates or Book-Entry Shares shall cease to have any
rights with respect to Company Shares, except as otherwise provided herein or
by applicable Law.  As of the Effective
Time, the stock transfer books of the Company shall be closed and there shall
be no further registration of transfers on the Company’s stock transfer books
or by book-entry of any Company Shares, other than transfers that occurred
before the Effective Time.  If, after the
Effective Time, Certificates or Book-Entry Shares are presented to the
Surviving Corporation for any reason, they shall be canceled and exchanged as
provided in this Section 3.4.


(d)           If payment of the Merger Consideration in respect of
Company Shares is to be made to a Person other than the Person in whose name a
surrendered Certificate or Book-Entry Share is registered, it shall be a
condition to such payment that the Certificate or Book-Entry Share so
surrendered shall be properly endorsed or shall be otherwise in proper form for
transfer and that the Person requesting such payment shall have paid any
transfer and other Taxes required by reason of such payment in a name other
than that of the registered holder of the Certificate or Book-Entry Share
surrendered or shall have established to the satisfaction of the Surviving
Corporation or the Exchange Agent that such Taxes either have been paid or are
not payable.


(e)           Upon the request of the Surviving Corporation, the
Exchange Agent shall deliver to the Surviving Corporation any portion of the
Merger Consideration made



 16
 






 



 


available to the Exchange Agent pursuant to
this Section 3.4 that remains undistributed to holders of Company Shares
six (6) months after the Effective Time. 
Holders of Certificates who have not complied with this Section 3.4
prior to the demand by the Surviving Corporation shall thereafter look only to
Parent and the Surviving Corporation for payment of any claim to the Merger
Consideration.


(f)            None of Acquiror, Parent, the Surviving Corporation or
the Exchange Agent shall be liable to any Person in respect of any Company
Shares (or dividends or distributions with respect thereto) for any amounts
paid to a public official pursuant to any applicable abandoned property,
escheat or similar Law.


(g)           Each of the Surviving Corporation and Exchange Agent shall
be entitled to deduct and withhold from the Merger Consideration or amounts
otherwise payable hereunder to any Person (including amounts payable under
Article 3) any amounts that it is required to deduct and withhold with respect
to payment under any applicable provision of federal, state, local or foreign
income tax Law and shall make any required filings with the appropriate tax
authorities with respect to such withholding. 
To the extent that the Surviving Corporation or Exchange Agent withholds
those amounts, the withheld amounts shall be treated for all purposes of this
Agreement as having been paid to the holder of Company Shares in respect of
which deduction and withholding was made by the Surviving Corporation or
Exchange Agent, as the case may be.


(h)           If any Certificate has been or is claimed to have been
lost, stolen or destroyed, upon the making of an affidavit of that fact by the
Person claiming that a Certificate has been lost, stolen or destroyed and, if
required by the Surviving Corporation, the posting by such Person of a bond, in
such reasonable amount as the Surviving Corporation may direct, as indemnity
against any claim that may be made against it with respect to that Certificate,
the Exchange Agent will deliver to such Person in exchange for such lost,
stolen or destroyed Certificate, the proper amount of the Merger Consideration.


3.5.          Company Stock Options and Other Awards.


(a)           Each outstanding Company Option shall automatically be
converted at the Effective Time, pursuant to the terms thereof, into the right
to receive a cash payment from the Surviving Corporation, payable as soon as
practicable following the vesting and exercise of the Company Option, equal to
an amount per Company Share subject to such Company Option equal to the excess,
if any, of (i) the Merger Consideration over (ii) the exercise price per
Company Share subject to such vested and exercised Company Option, less any
applicable withholding taxes (the “Option
Consideration”).  Outstanding
unvested Company Options will continue to vest and become exercisable for the
Option Consideration in accordance with the terms of the Contract between the
Company and the holder in effect as of the date hereof evidencing such Company
Option.  The Surviving Corporation and
Parent shall take all corporate action necessary to reserve sufficient cash for
payment upon the exercise of such Company Options on or after the Effective
Time in accordance with the terms and conditions thereof.  Prior to the Effective Time, the Company
shall notify the holders of Company Options of the Surviving Corporation’s
withholding obligations with respect to such Company Options arising on or
after the Effective Time.



 17
 






 



 


(b)           Prior to the Effective Time, the Company shall take all
necessary action under all stock purchase plans in place at the Company or any
of its Subsidiaries relating to Company Shares (including the Trammell Crow Company Employee Stock Purchase Plan)
(collectively, “Purchase Plans”) to provide that
(i) all participants’ rights under all current offering periods shall terminate
at the end of the next payroll date following the date hereof (the “Stock Plan Suspension Date”), but in no event later than
December 31, 2006, and all accumulated payroll deductions allocated to each
participant’s account under the Purchase Plans shall thereupon be used to
purchase from the Company whole Company Shares at a price determined under the
terms of the Purchase Plans for the offering period using the Stock Plan
Suspension Date as the final purchase date and (ii) as of the close of business
on the Business Day immediately prior to the Effective Time, the Purchase Plans
will terminate.  At the Effective Time,
any Company Common Stock acquired under the Purchase Plans will be treated as
provided in Section 3.3.  The Company
shall take all necessary action so that as of the date hereof no new offering
is made and no offering period commences under the Purchase Plans.


(c)           Each Company Share outstanding immediately prior to the
Effective Time (but excluding any Company Options provided for pursuant to
Section 3.5(a) and Restricted Shares not excluded from Section 3.3 (whose
restrictions lapse as of the Effective Time)) that is subject to, and after the
Effective Time pursuant to its terms will remain subject to, vesting or other
lapse restrictions pursuant to any Company Option Plan or any applicable
restricted stock award agreement (each a “Restricted Share”) shall be converted, at the Effective
Time, into the right to receive a cash amount from the Surviving Corporation equal
to the Merger Consideration, less any applicable withholding taxes, as soon as
administratively feasible following the vesting of such Restricted Share,
provided that the payment of such cash amount shall remain subject to the same
terms and conditions (including vesting conditions) as were in effect with
respect to such Company Share immediately prior to the Effective Time.  The Surviving Corporation and Parent shall
take all corporate action necessary to reserve sufficient cash for payment upon
the settlement of such Restricted Shares after the Effective Time upon vesting
thereof in accordance with the terms and conditions of such Restricted Shares.


(d)           Each Company Share underlying the performance unit awards
set forth on Sections 4.12(b) and 4.12(c) of the Company Disclosure Schedule
outstanding immediately prior to the Effective Time (each a “Unit”) shall be converted, at the Effective Time, into the
right to receive a cash amount from the Surviving Corporation equal to the
Merger Consideration, less any applicable withholding taxes, at the time set
forth in and in accordance with the terms of the Contract between the Company
and the holder in effect as of the date hereof evidencing such Unit; provided
that the payment of such cash amount shall remain subject to the same terms and
conditions of the Contract between the Company and the holder evidencing such
Unit in effect immediately prior to the Effective Time.  The Surviving Corporation and Parent shall
take all corporate action necessary to reserve sufficient cash for payment upon
the settlement of such Units on or after the Effective Time upon settlement
thereof in accordance with the terms and conditions of such Units.


(e)           The Company shall notify the holders of Company Options,
Restricted Shares and Units, and participants under the Purchase Plans, of the
impact of the Merger on their respective equity awards or participation rights.



 18














 


 


3.6.          Dissenting
Shares.


(a)           Notwithstanding
any provision of this Agreement to the contrary, Company Shares that are
outstanding immediately prior to the Effective Time and which are held by
Persons who shall have properly demanded in writing appraisal for such shares
in accordance with Section 262 (or any successor provision) of the DGCL
(the “Dissenting Shares”)
shall not be converted into or represent the right to receive the Merger
Consideration as provided hereunder and shall only be entitled to such rights
and consideration as are granted by Section 262 (or any successor
provision) of the DGCL.  Such Persons
shall be entitled to receive payment of the appraised value of such Company
Shares in accordance with the provisions of Section 262 (or any successor
provision) of the DGCL, except that all Dissenting Shares held by Persons who
shall have failed to perfect or who effectively shall have withdrawn or lost
their right to appraisal of such shares under Section 262 (or any
successor provision) of the DGCL shall thereupon be deemed to have been
converted into the right to receive the Merger Consideration pursuant to
Section 3.3 hereto as of the Effective Time or the occurrence of such
failure, withdrawal or loss, whichever occurs later.


(b)           The
Company shall give Acquiror (i) prompt notice of any demands for appraisal
received by the Company, withdrawals of such demands and any other instruments
served pursuant to the DGCL and received by the Company and (ii) the
opportunity to participate in all negotiations and proceedings with respect to
demands for appraisal or the payment of the fair cash value of any such shares
under the DGCL.  Other than pursuant to a
court order, the Company shall not, except with the prior written consent of
Acquiror, make any payment with respect to any demands for appraisal or the
payment of the fair cash value of any such shares or offer to settle or settle
any such demands.


ARTICLE 4


REPRESENTATIONS
AND WARRANTIES OF THE COMPANY


Except
(i) as disclosed in the Company SEC Documents filed with the SEC after January
1, 2006 and prior to the date of this Agreement with respect to information
that is reasonably apparent on its face to relate to the representations and
warranties contained in this Article 4 (excluding any disclosures set forth in
any risk factor section thereof, in any section relating to forward looking
statements and any other disclosures included therein to the extent that they
are cautionary, predictive or forward looking in nature) or (ii) as disclosed
in the Company Disclosure Schedule attached hereto, the Company represents and
warrants to Parent and Acquiror as set forth below:


4.1.          Corporate Existence and Power.  The Company is a corporation, duly
incorporated, validly existing and in good standing under the Laws of the State
of Delaware, and has all corporate powers and authority required to own, lease
and operate its properties and assets and to carry on its business as now
conducted.  The Company is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction where the character of the property and assets owned, leased or
operated by it or the nature of its activities makes qualification necessary,
except where the failure to be so qualified would not be reasonably likely to
have, individually or in the aggregate, a Company Material Adverse Effect.  The



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Company is not in
violation of any provision of its Organizational Documents, and the Company has
made available to Parent true and correct copies of its Organizational Documents.


4.2.          Corporate
Authorization.  The execution, delivery and performance by
the Company of this Agreement and the consummation by the Company of the Merger
and the other transactions contemplated hereby are within the Company’s
corporate powers and, except for the Company Stockholder Approval and the
filing and recordation of the Certificate of Merger in accordance with the
DGCL, have been duly and validly authorized by all necessary corporate action
and no other corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby.  Subject to Section 6.3, the
Board of Directors of the Company unanimously has approved and declared advisable
this Agreement and has resolved to recommend that the Company Stockholders vote
their shares in favor of the adoption of this Agreement and approval of the
transactions contemplated hereby.  This
Agreement has been duly and validly executed and delivered by the Company, and
assuming that this Agreement constitutes the valid and binding obligation of
Parent and Acquiror, constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms subject,
as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting creditors’ rights
and to general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).


4.3.          Governmental
Authorization.  The execution, delivery and performance by
the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby will not require with respect to the Company
or any Company Subsidiary any consent, approval, action, order, authorization,
or permit of, or registration, declaration or filing with, any Governmental
Entity, other than (a) the filing of the Certificate of Merger in
accordance with the DGCL; (b) compliance with any applicable requirements
of any Antitrust Laws or any international or foreign Laws; (c) compliance
with any applicable requirements of the Securities Act and the Exchange Act;
(d) filings with the New York Stock Exchange; (e) such filings and approvals as
may be required by any applicable state securities, “blue sky” or takeover
laws; and (f) other consents, approvals, actions, orders, authorizations,
permits, registrations, declarations and filings which, if not obtained or
made, would not be reasonably likely to have, individually or in the aggregate,
a Company Material Adverse Effect.  The
consummation of the Merger and the other transactions contemplated hereby will
not result in the lapse of any Permit of the Company or Company Subsidiaries or
the breach of any authorization or right to use any Permit of the Company or
Company Subsidiaries or other right that the Company or any Company
Subsidiaries has from a Governmental Entity, except where such lapses or
breaches would not be reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect.


4.4.         Non-Contravention. 
The execution, delivery and performance by the Company of this Agreement
and the consummation by the Company of the Merger and the other transactions
contemplated hereby do not and will not (a) contravene or conflict with
the Organizational Documents of the Company, (b) contravene or conflict with
the Organizational Documents of any Company Subsidiary, (c) assuming
compliance with the matters referred to in Section 4.3, contravene or
conflict with, or constitute a violation of, any provision of any Law binding
upon or applicable to the Company or its Subsidiaries or by which any of their
respective



 20
 






 



 


properties or assets is bound or affected,
(d) constitute a breach of or default under (or an event that with notice
or lapse of time or both would be reasonably likely to become a breach or
default) or give rise (with or without notice or lapse of time or both) to
a right of termination, amendment, cancellation or acceleration under any
Contract binding upon the Company (including, in the case of any Contract
evidencing Indebtedness or other payment obligation of any Special Purpose
Vehicle, any right to claim against the Company or any Company Subsidiaries
other than a Special Purpose Vehicle all or any portion of the amount of
Indebtedness or other payment obligation underlying such Contract), any Company
Subsidiary or any of their respective properties or assets, or (e) result
in the creation or imposition of any Lien on any asset of the Company or any
Company Subsidiary, other than, in the case of clauses (b), (c), (d) and
(e) taken together, any items that would not be reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect.


4.5.          Capitalization.


(a)           The
authorized capital stock of the Company consists solely of 100,000,000 Company
Shares and 30,000,000 shares of preferred stock, par value $0.01 per share (the
“Company Preferred Stock”).  As of October 25, 2006,
(x)(i) 36,350,819 Company Shares (including Restricted Shares) were issued
and outstanding, (ii) 1,552,239 Company Shares were held by the Company in
treasury and (iii) 1,724,927 were Restricted Shares, all of which have
been duly authorized and validly issued and are fully paid and nonassessable
and were issued free of preemptive or similar rights, (y) no shares of the
Company Preferred Stock were issued or outstanding, and (z) no Company
Shares were held by Company Subsidiaries. 
As of October 25, 2006, (i) 3,445,884 Company Shares were
reserved for issuance pursuant to outstanding Company Options granted under
Company Option Plans, (ii) 652,792 Common Shares were reserved for future
issuance under the Company Option Plans (excluding Common Shares reserved for
issuance pursuant to outstanding Company Options), and (iii) 803,187
Common Shares were reserved for future issuance under Purchase Plans.  From June 30, 2006 until the date of
this Agreement, the Company has not declared or paid any dividend or
distribution in respect of any of its Equity Interests and neither the Company
nor any Company Subsidiary has repurchased, redeemed or otherwise acquired any
shares of the Company’s Equity Interests, and the Company’s Board of Directors
has not resolved to do any of the foregoing. 
There are no outstanding or authorized stock appreciation, profit
participation, “phantom stock,” or other similar plans with respect to the
Company or the Company Subsidiaries, other than incentive compensation
arrangements that are not based on the market price of Company Shares and that
are entered into in the Ordinary Course of Business.


(b)           Except (i) as
set forth in this Section 4.5 and (ii) for changes since
October 25, 2006 resulting from the exercise of Company Options
outstanding on that date, neither the Company nor any Company Subsidiary has
issued, or reserved for issuance, any, and there are no outstanding, (x) Equity
Interests of the Company, (y) securities of the Company or any Company
Subsidiary convertible into or exercisable or exchangeable for Equity Interests
of the Company or (z) options, warrants or other rights to acquire from the
Company or any Company Subsidiary, or obligations of the Company or any Company
Subsidiary to issue, any Equity Interests of the Company or securities or other
rights convertible into or exchangeable for Equity Interests of the Company
(the items in clauses (x), (y) and (z) being referred to collectively as the “Company Securities”). 
There are no outstanding Contracts or other



 21
 






 



 


obligations of the Company or any Company Subsidiary to repurchase,
redeem or otherwise acquire any Company Securities.


(c)           Section 4.5(c) of
the Company Disclosure Schedule sets forth a complete and accurate list of all
outstanding Company Options and Restricted Shares as of October 25, 2006,
which list sets forth the name of the holders thereof and, to the extent
applicable, the exercise price or purchase price thereof, the number of Company
Shares subject thereto, the schedule of vesting (including any acceleration of
vesting that may result from this Agreement or the transactions contemplated
hereby), the governing Company Option Plan with respect thereto and the expiration date
thereof.  The Company has no outstanding
bonds, debentures, notes or other indebtedness that have the right to vote (or
which is convertible into, or exchangeable for, securities having the right to
vote) on any matters on which Company Stockholders may vote.  All Company Options and Restricted Shares
have been granted in compliance in all respects with the terms and conditions
of the Company Option Plans and applicable Laws and stock exchange rules and
have been accounted for correctly in all material respects in the financial
statements of the Company.


4.6.          Subsidiaries;
Minority Investments.


(a)           Each
Company Subsidiary (i) is a corporation duly incorporated or an entity
duly organized, and is validly existing and in good standing (except in
jurisdictions where such concept does not exist) under the Laws of its
jurisdiction of incorporation or organization, and has all powers and authority
required to own, lease or operate its properties and assets and to carry on its
business as now conducted, and (ii) has all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted and is duly qualified to do business as a foreign corporation or
entity and is in good standing in each jurisdiction where the character of the
property and assets owned, leased or operated by it or the nature of its
activities makes such qualification necessary, in each case in the foregoing
clauses (i) and (ii) with exceptions which would not be reasonably
likely to have, individually or in the aggregate, a Company Material Adverse
Effect.


(b)           Section 4.6(b) of
the Company Disclosure Schedule sets forth the name of all Company Subsidiaries
and, to the extent applicable, the total number of authorized, issued and
outstanding Equity Interests of each Company Subsidiary and the amount of the
Company’s direct or indirect ownership of Equity Interests in each Company
Entity and, in the case of each Project Entity, (i) the amount of equity
that the Company or any Company Subsidiary is authorized to invest in such
Project Entity and (ii) the amount of Indebtedness or other payment
obligation of such Project Entity that the Company or any Company Subsidiary
(other than a Project Entity) is authorized to guarantee, in each case
excluding obligations under SPV Guarantees. 
For each Company Subsidiary that is a corporation, all of the
outstanding Equity Interests in such Company Subsidiary (1) have been duly
authorized and validly issued and are fully paid and nonassessable, (2) if
owned by the Company or any Company Subsidiary, are owned free and clear of any
Lien (except for liens under the Credit Agreements), (3) are free of any
preemptive or similar right, and (4) are free of any other limitation or
restriction (including any limitation or restriction on the right to vote, sell
or otherwise dispose of the Equity Interests). 
For each Company Subsidiary that is a limited liability company or
partnership, all of the outstanding Equity Interests in such Company Subsidiary
have been duly



 22
 






 



 


authorized and validly issued, and if owned by the Company or any
Company Subsidiary, are owned free and clear of all Liens other than (A) Liens
under the Credit Agreement, (B) Liens in favor of financing sources for the
development project to which such Company Subsidiary relates and (C) Liens in
favor of or against the interests of the other equity holders of such entity.  The Equity Interests of each Company
Subsidiary were issued in compliance with all applicable federal, state and
foreign securities laws except as would not be reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect.  There are no outstanding (x) securities of
the Company or any Company Subsidiary (that is not a Special Purpose Vehicle)
convertible into or exchangeable or exercisable for Equity Interests in any
Company Subsidiary (that is not a Special Purpose Vehicle), (y) options,
warrants or other rights to acquire from the Company or any Company Subsidiary
(that is not a Special Purpose Vehicle), or obligations of the Company or any
Company Subsidiary (that is not a Special Purpose Vehicle) to issue, any Equity
Interests in, or any securities convertible into or exchangeable or exercisable
for any Equity Interests in, any Company Subsidiary (that is not a Special
Purpose Vehicle) or (z) Contracts of the Company or any Company Subsidiary to
issue, sell, repurchase, redeem or otherwise acquire any Equity Interests of
any Company Subsidiary (that is not a Special Purpose Vehicle).


(c)           No
Company Subsidiary is in violation of any provision of its Organizational
Documents, other than violations which would not be reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect.  Section 4.6(c) of the Company Disclosure
Schedule lists each Company Entity for which the Company has made available to
the Acquiror true and correct copies of the articles or certificate of
incorporation or bylaws or equivalent organizational and governing documents.


(d)           Section
4.6(d) of the Company Disclosure Schedule lists each Company Minority
Investment owned by the Company or a Company Subsidiary (other than a Special
Purpose Vehicle) and the Company or Company Subsidiary that owns such Company
Minority Investment. Each Company Minority Investment is owned free and clear
of any Lien (except for Liens under the Credit Agreements). Except as
specifically set forth in this Section 4.6(d), the Company makes no
representation with respect to the Company’s or any Company Subsidiary’s
ownership of any Company Minority Investment or the business, assets,
liabilities, financial condition or results of operations of any Company
Minority Investment.


4.7.          Company
SEC Documents.


(a)           The
Company has filed all forms, reports, filings, registration statements and
other documents required to be filed by it with the SEC since December 31,
2002.  No Company Subsidiary is required
to file any form, report, registration statement or prospectus or other
document with the SEC.


(b)           As
of its filing date, each Company SEC Document complied as to form in all
material respects with the applicable requirements of the Securities Act and/or
the Exchange Act, as the case may be.


(c)           No Company SEC
Document filed since December 31, 2002 pursuant to the Exchange Act contained,
as of its filing date, any untrue statement of a material



 23
 






 



 


fact or omitted to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading.  No Company
SEC Document, as amended or supplemented, if applicable, filed since December
31, 2002 pursuant to the Securities Act contained, as of the date on which the
document or amendment became effective, any untrue statement of a material fact
or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading.


4.8.          Financial
Statements; No Material Undisclosed Liabilities.


(a)           Each
of the audited consolidated financial statements and unaudited consolidated
interim financial statements of the Company included in the Company SEC
Documents were prepared in conformity with GAAP (except as may be indicated in
the notes thereto) throughout the periods involved, and each fairly presents,
in all material respects, the consolidated financial position of the Company
and the entities that it consolidates in accordance with GAAP as of the dates
thereof and their consolidated results of operations and changes in financial
position for the periods then ended (subject to normal year-end adjustments and
the absence of notes that may be required by GAAP in the case of any unaudited
interim financial statements).  The
management of the Company has implemented and maintains disclosure controls and
procedures (as defined in Rule 13a-15(e) of the Exchange Act) to ensure that
material information relating to the Company, including the entities that it
consolidates in accordance with GAAP, is made known to the chief executive
officer and the chief financial officer of the Company by others within those
entities.  The Company’s principal
executive officer and principal financial officer have disclosed, based on
their most recent evaluation of internal control over financial reporting, to
the Company’s auditors and the audit committee of the Company Board of
Directors (or persons performing the equivalent functions): (A) all significant
deficiencies and material weaknesses within their knowledge in the design or
operation of internal control over financial reporting which are reasonably
likely to adversely affect the Company’s ability to record, process, summarize
and report financial information; and (B) any fraud that involves management or
other employees who have a significant role in the Company’s internal control
over financial reporting.  The Company’s
principal executive officer and principal financial officer have made, with
respect to the Company SEC Documents, all certifications required by the
Sarbanes-Oxley Act of 2002 and any related rules and regulations promulgated by
the SEC.  The Company has not identified
any material weaknesses in the design or operation of the internal controls
over financial reporting except as disclosed in the Company SEC Documents filed
prior to the date hereof.  Neither the
Company nor any of the Company Subsidiaries has outstanding, or has arranged
any outstanding, “extensions of credit” to directors or executive officers of
the Company within the meaning of Section 402 of the Sarbanes-Oxley Act of
2002.


(b)           There are no
liabilities or obligations of the Company or any Company Subsidiary, of any
kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, other than: 
(i)  liabilities or obligations (A) disclosed or provided
for in the Company Balance Sheet or disclosed in the notes thereto or in
the Company’s consolidated balance sheet or disclosed in the notes thereto
included in the Company’s quarterly report on Form 10-Q for the quarter ended
June 30, 2006 or (B) not
required by GAAP to be disclosed or provided for in a consolidated balance
sheet of the Company and that were incurred in the Ordinary Course of Business
or which would not be reasonably likely to have, individually



 24
 






 



 


or in the aggregate, a Company Material Adverse Effect;
(ii) liabilities or obligations of Project Entities for which there is no
contractual or other recourse to the Company or any Company Subsidiary that is
not a Project Entity, (iii) SPV Guarantees; (iv) capital commitments
to Special Purpose Vehicles; (v) liabilities or obligations incurred after June
30, 2006 in the Ordinary Course of Business; and (vi) liabilities or
obligations under this Agreement or incurred in connection with the
transactions contemplated hereby.


(c)           Neither
the Company nor any Company Subsidiary is a party to, or has a legally binding
commitment to enter into, any joint venture, off balance sheet partnership or
any similar Contract (including any Contract relating to any transaction or
relationship between or among the Company or the Company Subsidiary, on the one
hand, and any unconsolidated affiliate, including any structured finance,
special purpose or limited purpose entity or person, on the other hand or any “off
balance sheet arrangements” (as defined in Item 303(a) of Regulation S-K under
the Exchange Act)) other than (i) the Minority Investments held by the
Company as of the date hereof with respect to which there is no contractual or
other recourse to the Company or any Subsidiary that is not a Project Entity
and (ii) with respect to the Special Purpose Vehicles, those entered into
in connection with Development and Investment Activities with respect to which
neither the Company nor any Company Subsidiary that is not a Project Entity has
guaranteed the Indebtedness or other payment obligation of, or agreed to make
any equity contribution to, such Special Purpose Vehicle, except, in either
case (x) as disclosed on Section 4.6(b) of the Company Disclosure Schedule, and
(y) SPV Guarantees.  Neither the Company
nor any Company Subsidiary (other than Project Entities) has any direct
ownership interest in any project or other real property constituting a
Development and Investment Activity.


4.9.          Absence
of Certain Changes.


(a)           From
June 30, 2006 to the date of this Agreement, except as otherwise expressly
contemplated by this Agreement, the Company and each Company Subsidiary has
conducted its business in the Ordinary Course of Business and there has not
been any damage, destruction or other casualty losses affecting the business,
properties or assets of the Company or any Company Subsidiary that has had or
would be reasonably likely to have, individually or in the aggregate, a Company
Material Adverse Effect.


(b)           From
June 30, 2006 to the date of this Agreement, except as otherwise expressly
contemplated by this Agreement, there has not been (i) any change by the
Company in its accounting methods, principles or practices (other than changes
required by GAAP after the date of this Agreement); (ii) except in
connection with Development and Investment Activities in the Ordinary Course of
Business, any sale or license of a material amount of assets or rights of the
Company and the Company Subsidiaries; or (iii) any material Tax election,
any change in method of accounting with respect to Taxes or any compromise or
settlement of any proceeding with respect to any material Tax liability by the
Company or any Company Subsidiary.


(c)           From
June 30, 2006 to the date of this Agreement, there has not been any
action, event, occurrence, development or state of circumstances or facts that
has had or would be reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect.



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4.10.        Litigation. 
As of the date of this Agreement, there
is no litigation, action, suit, claim, investigation, arbitration or proceeding
or inquiry, whether civil, criminal or administrative (each, a “Claim”), pending, or, to the Knowledge of
the Company, threatened, against the Company or any Company Subsidiary or any
Special Purpose Vehicle any of their respective assets, properties or employees
before any arbitrator or Governmental Entity that would be reasonably likely to
have, individually or in the aggregate, a Company Material Adverse Effect.  Set forth on Section 4.10 of the Company
Disclosure Schedule is a list of all Claims pending, or to the Knowledge of the
Company, threatened as of the date of this Agreement, against the Company or
any Company Subsidiary or any of their respective assets, properties or
employees (if such Claim is related to, or arising from, an employee’s actions
or omissions on behalf of the Company or any Company Subsidiary) before any
arbitrator or Governmental Entity in which the amount claimed is in excess of
$1,000,000 or in which specific performance or other injunctive relief or
punitive damages are sought, or in which a criminal violation is alleged.  As of the date of this Agreement, neither the
Company nor any Company Subsidiary nor any of their respective properties,
assets or, to the Knowledge of the Company, employees is or are subject to any
order, writ, judgment, injunction, decree, settlement, determination or award (“Order”) having, or which would be
reasonably likely to have, individually or in the aggregate, a Company Material
Adverse Effect.


4.11.        Taxes.  Except as would not be reasonably likely,
individually or in the aggregate, to have a Company Material Adverse Effect,
(a) all Tax returns, statements, declarations, reports and forms, including any
schedules or attachments thereto, required to be filed with any taxing
authority by, or with respect to, the Company and each Company Subsidiary
(collectively, the “Company Returns”)
have been timely filed
accordance with all applicable Laws and the Company Returns are true, correct
and complete in; (b) the Company and each Company Subsidiary has timely
paid all Taxes due and payable whether or not shown as being due on any Company
Return (other than Taxes that are being contested in good faith and for which
adequate reserves are reflected in the Company Balance Sheet); (c) the
charges, accruals and reserves for Taxes with respect to the Company and each
consolidated Company Subsidiary that are reflected on the Company Balance Sheet
are adequate to cover the Tax liabilities accruing through the date thereof;
(d) as of the date of this Agreement, there is no action, suit,
proceeding, audit or claim now proposed or pending against the Company or any
Company Subsidiary in respect of any Taxes; (e) neither the Company nor
any Company Subsidiary is party to, bound by or has any obligation under, any
tax sharing Contract or any Contract that obligates them to make any payment
computed by reference to the Taxes, taxable income or taxable losses of any
other Person; (f) there are no Liens with respect to Taxes on any of the
assets or properties of the Company or any Company Subsidiary other than with
respect to Taxes not due and payable; (g) neither the Company nor any
Company Subsidiary (1) is, or has been, a member of an affiliated,
consolidated, combined or unitary group, other than one of which the Company
was the common parent and (2) has any liability for the Taxes of any
Person (other than the Company and the Company Subsidiaries) under Treasury
Regulation Section 1.1502-6 (or any similar provision of state, local or
foreign Law), or as a transferee or successor, by contract or otherwise;
(h)  neither the Company nor any Company Subsidiary has ever entered into
a closing agreement pursuant to Section 7121 of the Code that could affect
the Company or a Company Subsidiary in a Tax period or portion thereof
beginning after the Effective Time; (i) the Company will not be required to
include amounts in income, or exclude items of deduction, in a taxable period
beginning after the Closing Date as a result of (1) a



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change in method of
accounting occurring prior to the Closing Date, (2) an installment sale or open
transaction arising in a taxable period (or portion thereof) ending on or
before the Closing Date, (3) a prepaid amount received, or paid, prior to the
Closing Date or (4) deferred gains arising prior to the Closing Date; (j) all
Taxes required to be withheld, collected or deposited by or with respect to
Company and each of the Company Subsidiaries have been timely withheld,
collected or deposited as the case may be, and to the extent required, have
been paid to the relevant taxing authority; (k) none of Company or any of the
Company Subsidiaries has been either a “distributing corporation” or a “controlled
corporation” in a distribution occurring during the last five years in which
the parties to such distribution treated the distribution as one to which
Section 355 of the Code is applicable; and (l) neither the Company nor any of
the Company Subsidiaries has engaged in any transaction that would reasonably
be expected to give rise to (1) a list maintenance obligation with respect to
any Person under Section 6112 of the Code or the regulations thereunder or (2)
a disclosure obligation as a “reportable transaction” under Section 6011 of the
Code and the regulations thereunder.


4.12.        Employee
Benefits.


(a)           Section 4.12(a) of
the Company Disclosure Schedule contains a true and complete list of each “employee
benefit plan” (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended (“ERISA”) (whether or
not such “employee benefit plan” is subject to ERISA), including,
without limitation, multiemployer plans within the meaning of
Section 3(37) of ERISA), and all Contracts with individuals providing for
the payment of one-time stay bonuses in excess of $500,000, individual
employment agreements that contain commitments as to equity compensation not
yet granted or issued, stock purchase, stock option, restricted stock, stock compensation, phantom, severance,
employment, change-in-control, fringe benefit (including health and welfare plans and programs), collective
bargaining, incentive, profit sharing, deferred
compensation, pension, retirement, employee
loan, vacation and all other
employee benefit plans, agreements, programs, policies or other arrangements,
whether or not subject to ERISA (including any funding mechanism therefor now
in effect or required in the future as a result of the transaction contemplated
by this Agreement or otherwise), that are legally binding obligations of the
Company or any Company Subsidiaries under which (i) any current or former
employee, officer or director of
the Company or its Subsidiaries (the “Company Employees”)
or any current or former Independent
Contractor of the Company or any Company Subsidiary (the “Company Independent Contractors”) has any present or future right to
benefits and which are contributed to, sponsored by or maintained by the
Company or any Company Subsidiary or (ii) the Company or any Company
Subsidiary has any present or future liability, whether actual or contingent; provided, however,
that Contracts with individuals need not be listed on Section 4.12(a) of the
Company Disclosure Schedule other than individual letter agreements providing
for the payment of one-time stay bonuses in excess of $500,000 and individual
employment agreements that contain commitments as to equity compensation not
yet granted or issued.  All such plans,
programs, policies and arrangements required to be listed on
Section 4.12(a) of the Company Disclosure Schedule shall be collectively
referred to as the “Company Plans.”


(b)           With respect to each
Company Plan, the Company has provided or made available to Parent a current,
accurate and complete copy (or, to the extent no such copy exists, an accurate
description) thereof and, to the extent applicable: (i) any related adoption



 27
 






 



 


agreements, trust agreements, insurance contracts and/or other
funding instruments or agreements
(including any amendments thereto); (ii) the most recent
determination letter, if applicable and
any pending request for such a letter; (iii) any summary plan
description and other written communications (or a written description of any
oral communications) by the Company or its Subsidiaries to the Company
Employees or any Company Independent
Contractors concerning the extent of the benefits provided under a
Company Plan; (iv) a summary of any proposed amendments or changes anticipated
to be made to (including any terminations
of) any of the Company Plans at any time within the twelve months
immediately following the date hereof, except for such proposed amendments or
changes that are required by applicable Law, (v) the most recent non-discrimination tests performed under the Code
(including 401(k) and 401(m) tests) and all filings made by the Company or any
Company Subsidiary with any Governmental Entity, including under the Voluntary
Compliance Resolution or Closing Agreement Program or the Department of Labor
Delinquent Filer Program; and (vi)
for the three most recent completed years (A) the Form 5500 and attached
schedules, (B) audited financial statements, (C) actuarial valuation
reports and funding and/or financial
information returns and statements, and (D) attorney’s response to
an auditor’s request for information.


(c)            (i) Each Company Plan has been
established, maintained and administered in all material respects in accordance
with its terms, and in compliance with the applicable provisions of ERISA, the
Code and other applicable Laws, rules and regulations, and all contributions
required to be made under the terms of any Company Plan as of the date hereof
have been timely made or, if not yet due, have been properly reflected on the
Company’s financial statements; (ii) each Company Plan which is intended
to be qualified within the meaning of Section 401(a) of the Code is
so qualified and has received a favorable determination letter as to its
qualification, and nothing has occurred, whether by action or failure to act,
that would reasonably be expected to cause the loss of such qualification or
affect the tax exempt status of any related trust; (iii) no event has
occurred and no condition exists that would reasonably be expected to subject
the Company or its Subsidiaries, either directly or by reason of their
affiliation with any member of their “Controlled Group”
(defined as any organization which is a member of a controlled group of
organizations within the meaning of Sections 414(b), (c), (m) or (o) of
the Code), to any material Tax, fine, Lien, penalty or other material liability
imposed by ERISA, the Code or other applicable Laws, rules and regulations;
(iv) for each Company Plan with respect to which a Form 5500 has been filed, no
material change has occurred with respect to the matters covered by the most
recent Form since the date thereof; (v) no “reportable event” (as such term is
defined in Section 4043 of the Code) that would reasonably be
expected to result in material liability, no “prohibited transaction” (as such
term is defined in Section 406 of ERISA and Section 4975 of the Code)
that would reasonably be expected to result in liability to the Company or any
of its Subsidiaries or “accumulated funding deficiency” (as such term is
defined in Section 302 of ERISA and Section 412 of the Code (whether
or not waived)) has occurred with respect to any Company Plan; (vi) there
is no present intention, requirement or obligation that any Company Plan be
materially amended, suspended or terminated, or otherwise modified to alter
benefits (or the levels thereof); (vii) no Company Plan is a split-dollar
life insurance program or otherwise provides for loans to executive officers
(within the meaning of The Sarbanes-Oxley Act of 2002); (viii) all Tax, annual
reporting and other governmental filings required by ERISA and the Code with
respect to the Company Plans have been timely filed with the appropriate
Governmental Entity and all notices and disclosures have been provided to
participants, and (ix) all outstanding awards, grants, bonuses, prior



 28
 






 



 


employer (including pre-tax employee) contributions, payments or
benefits provided pursuant to any Company Plan have been fully deductible to
the Company or its Subsidiaries under the Code, except as limited by Sections 162
and 404, as applicable.  Neither the
Company nor any of its Subsidiaries has incurred any current or projected
liability in respect of post-employment or post-retirement health, medical or
life insurance benefits for Company Employees or Company Independent
Contractors, except as required to avoid an excise tax under Section 4980B
of the Code or otherwise except as may be required pursuant to any other
applicable Law.


(d)           Neither the Company, any Company Subsidiary or
any member of their Controlled Group sponsors or maintains or has in the past
sponsored or maintained or, as of the date hereof and except as provided in
Section 4.12(e) of the Company Disclosure Schedule, has any current or
future liability under any employee benefit plan subject to Title IV of ERISA.


(e)           With
respect to any multiemployer plan (within the meaning of
Section 4001(a)(3) of ERISA) to which the Company, its Subsidiaries
or any member of their Controlled Group has any liability or contributes (or
has at any time contributed or had an obligation to contribute):  (i) none of the Company, its
Subsidiaries or any member of their Controlled Group has incurred any
withdrawal liability under Title IV of ERISA which remains unsatisfied or would
be subject to such liability if, as of the Closing Date, the Company, its
Subsidiaries or any member of their Controlled Group were to engage in a
complete withdrawal (as defined in Section 4203 of ERISA) or partial
withdrawal (as defined in Section 4205 of ERISA) from any such
multiemployer plan; and (ii) to the Knowledge of the Company, no such
multiemployer plan is in reorganization or insolvent (as those terms are
defined in Sections 4241 and 4245 of ERISA, respectively), except, in each
case of clauses (i) and (ii) above, any items that would not be reasonably
likely to have, individually or in the aggregate, when combined with other
items of adverse effect under this Section 4.12, a Company Material Adverse
Effect.


(f)            With
respect to each Company Plan, (i) as of the date of this Agreement, to the
Knowledge of the Company, no material actions, suits, claims, investigations or arbitrations (other than routine claims for
benefits in the Ordinary Course of Business or otherwise reserved on the
Company Balance Sheet) are pending or threatened, (ii) as of the date
of this Agreement, no facts or circumstances exist that would reasonably be
expected to give rise to any such material actions, suits or claims, and (iii)
as of the date of this Agreement, no administrative investigation, audit or
other administrative proceeding by the Department of Labor, the Internal
Revenue Service or other governmental agencies are pending, threatened or in
progress, except, in each case of clauses (i) and (iii) above, any items that
would not be reasonably likely to have, individually or in the aggregate, when
combined with other items of adverse effect under this Section 4.12, a Company
Material Adverse Effect.


(g)           No Company Plan nor
any Contracts with individuals exist that, as a result of the execution of this
Agreement or the transactions contemplated by this Agreement (whether alone or
in combination with any subsequent event(s), including the termination of a
Company Employee’s employment), could result in (i) the payment to any Company Employee or
Company Independent Contractor of any money or other property (whether under a
Company Plan or otherwise), (ii) the provision of any benefits or other
rights to any Company Employee or Company Independent Contractor, including
severance pay or an increase in severance pay upon any termination of the
employment or other relationship after the date of this Agreement,
(iii) the



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increase, acceleration or provision of any payments, benefits or other
rights (including funding through a grantor trust or otherwise) to any Company Employee
or Company Independent Contractor, whether or not any such payment, right or
benefit would constitute a “parachute payment” within the meaning of
Section 280G of the Code, (iv) limit or restrict the right of the Company
to merge, amend or terminate any of the Company Plans, (v) cause the Company to
record additional compensation expense on its income statement with respect to
any outstanding stock option or other equity-based award, or (vi) result in
payments under any of the Company Plans or otherwise that would not be
deductible under Section 280G of the Code, except, in the case of
clauses (i), (ii), (iv) and (v) above, any items that would not be
reasonably likely to have, individually or in the aggregate, when combined with
other items of adverse effect under this Section 4.12, a Company Material
Adverse Effect.


(h)           Section 4.12(h)
of the Company Disclosure Schedule sets forth all Company Plans maintained outside the jurisdiction of
the United States or that cover any employee residing or working outside the
United States (the “Foreign Benefit Plans”).  Except as would not individually or in the
aggregate, when combined with other items of adverse effect under this Section
4.12, be reasonably likely to have a Company Material Adverse Effect, with
respect to the Foreign Benefit Plans, (i) all Foreign Benefit Plans have
been established, maintained and administered in all material respects in
compliance with their terms and all applicable statutes, Laws, ordinances,
rules, orders, decrees, judgments, writs, and regulations of any controlling
Governmental Entity; (ii) all contributions or premiums required to be
made by the Company or its Subsidiaries under the terms of each Foreign Benefit
Plan have been made in a timely manner; (iii) if they are intended to qualify
for special Tax treatment, such Foreign Benefit Plans meet all the requirements
for such treatment; (iv) all obligations regarding such Foreign Benefit Plans
have been satisfied, there are no outstanding defaults or violations by any party
to such plans, no Taxes, penalties or fees are owing or eligible in respect of
any such plans, and no material liability or obligation exists with respect to
such Foreign Benefit Plans that has not been disclosed on Section 4.12(h) of the Company Disclosure Schedule; (v) neither the Company nor any
of its Subsidiaries has incurred any obligation in connection with the
termination or withdrawal from any such Foreign Benefit Plan; and (vi) the
present value of the accrued benefit liabilities (whether or not vested) under
each such Foreign Benefit Plan which is funded, determined as of the end of the
most recently ended fiscal year of the Company using generally accepted and
reasonable actuarial assumptions, did not exceed the current value of the
assets of such plan, and for each such Foreign Benefit Plan which is not
funded, the obligations thereunder have, to the extent required, been accrued
in accordance with generally accepted accounting principles as in effect in the
United States as of the end of the most recently ended fiscal year of the
Company, and are, to the extent required, reflected on the financial
statements.


4.13.        Compliance
with Laws; Licenses, Permits and Registrations.


(a)           Except
for matters covered by the representations and warranties in Sections 4.11,
4.12, 4.17 and 4.20 which shall be covered only by those representations and
warranties, and not by this Section 4.13, neither the Company nor any Company
Subsidiary is in violation of, or has violated, any applicable provisions of
any Laws, except for violations which would not be reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect.



 30














 


 


(b)           The
Company and each Company Subsidiary has all permits, licenses, easements,
variances, exemptions, consents, certificates, approvals, authorizations of and
registrations (collectively, “Permits”)
with and under all Laws, and from all Governmental Entities required by the
Company and each Company Subsidiary to carry on their respective businesses as
currently conducted, except where the failure to have the Permits would not be
reasonably likely to have, individually or in the aggregate, a Company Material
Adverse Effect.


(c)           The
information provided by the Company to Parent and Acquiror in order to assist
Parent in its evaluation and determination as to whether any filings,
notifications, authorizations, consent requests, petitions, statements, registrations,
declarations, submissions of information or applications are required to be
made with any Governmental Entity under any international or foreign Antitrust
Laws applicable to this Agreement or the transactions contemplated hereby was
true and correct in all material respects as of the date of this Agreement, to
the extent such information was provided on or prior to the date hereof, or as
of the date provided, to the extent provided after the date hereof.


4.14.        Title to
Assets.  The Company and each Company Subsidiary
(other than a Special Purpose Vehicle) has good title to, or valid leasehold
interests in, all their respective assets, except where the absence thereof
would not be reasonably likely to have, individually or in the aggregate, a
Company Material Adverse Effect.  Other
than assets held by a Special Purpose Vehicle and other than assets in which
the Company or any Company Subsidiary has leasehold interests, all of these
assets are free and clear of all Liens, except for (a) Permitted Liens and (b)
Liens that would not be reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect. 
All assets owned by Special Purpose Vehicles are owned free and clear of
all Liens, except for (i) Liens incurred in the Ordinary Course of
Business by such Special Purpose Vehicles, (ii) Permitted Liens, and
(iii) Liens that would not be reasonably likely to have, individually or
in the aggregate, a Company Material Adverse Effect.


4.15.        Intellectual
Property.  The Company and each Company Subsidiary owns
or has a valid license or other right to use, free and clear of all Liens,
except for Permitted Liens, each trademark, service mark, trade name, domain
name or other source indicator, patent, trade secret, confidential information,
or copyright (including any registrations or applications for registration of
any of the foregoing, which are set forth in Section 4.15 of the Company
Disclosure Schedule) used in or necessary to carry on the business of the
Company and each Company Subsidiary, taken as a whole, as currently conducted
(collectively, the “Company Intellectual
Property”), except where the failure to own or have the right to use
such properties would not be reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect. 
To the Knowledge of the Company, the Company Intellectual Property is
not being infringed or misappropriated by any third party.  Neither the Company nor any Company
Subsidiary has received any notice of infringement of or challenge to, and
there are no Claims or Orders pending or, to the Knowledge of the Company,
threatened with respect to any Company Intellectual Property that would be
reasonably likely to have, individually or in the aggregate, a Company Material
Adverse Effect.



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4.16.        Transaction Fees; Opinions of Financial Advisor.


(a)           Except for Lazard Frères & Co. LLC (“Trammell Crow  Bank”), whose
fees and expenses will be borne by the Company, there is no investment banker,
financial advisor, broker, finder or other intermediary which has been retained
by, or is authorized to act on behalf of, the Company or any Company Subsidiary
which might be entitled to any fee or commission from the Company, Parent,
Acquiror or any of their respective Affiliates upon consummation of the Merger
or the other transactions contemplated by this Agreement.  The Company has heretofore furnished to the
Acquiror complete and correct copies of all Contracts between the Company or
its Subsidiaries and Trammell Crow Bank pursuant to which such firm would be
entitled to any payment relating to the Merger and the other transactions
contemplated by this Agreement.


(b)           The Board of Directors of the Company has received the
opinion of Trammell Crow Bank, dated as of the date hereof, to the effect that,
as of such date, and subject to the qualifications stated therein, the Merger
Consideration is fair to the holders of Company Shares from a financial point
of view.


4.17.        Labor Matters.


(a)           Except for those Company Employees and Company Independent Contractors with
written Contracts that provide otherwise, and except as otherwise provided by
applicable Laws, (i) each Company Employee currently employed by the
Company or a Company Subsidiary is an “at will” employee (whose employment may
be terminated at any time by the Company or such employee, in each case with or
without reason) and has the right to work for the Company or any Company Subsidiary and (ii) each of the
Company Independent Contractors may be terminated for any reason on no more
than thirty (30) days’ notice.  Except as would not
be reasonably likely to have, individually or in the aggregate, a Company
Material Adverse Effect, the Company and its Subsidiaries are in compliance in
all material respects with all applicable Laws or Contracts governing or
concerning labor relations, employment, union and collective bargaining,
immigration, fair employment practices, employment discrimination and
harassment, terms and conditions of employment, workers’ compensation,
occupational safety and health, plant closings, and wages and hours, and any
other Law applicable to the Company or a Company Subsidiary with respect to any
of the Company Employees or Company Independent Contractors, including without
limitation, ERISA, the Immigration Reform and Control Act of 1986, the National
Labor Relations Act, the Civil Rights Acts of 1866 and 1964, the Equal Pay Act,
the Age Discrimination in Employment Act, the Americans with Disabilities Act,
the Family and Medical Leave Act of 1992, WARN, the Occupational Safety and
Health Act, the Davis-Bacon Act, the Walsh-Healy Act, the Service Contract Act,
Executive Order 11246, the Fair Labor
Standards Act and the Rehabilitation Act of 1973 and all regulations
under such acts (collectively, the “Labor Laws”).  Except as would not be reasonably likely to
have, individually or in the aggregate, a Company Material Adverse Effect as of
the date of this Agreement neither the Company nor any Company Subsidiary is
liable for or bound by, as the case may be, any liabilities, judgments,
decrees, orders, citations, Taxes, fines or penalties for failure to comply
with any of the Labor Laws.  Each of the
Company and its Subsidiaries has withheld all amounts required by applicable
Law or by agreement to be withheld from the wages, salaries and other payments
made or benefits provided to Company Employees, except for such failures that
would not be reasonably likely to have, individually or in the aggregate, a
Company Material Adverse Effect.  Except
as would not be reasonably likely to have, individually or in the



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aggregate, a Company Material
Adverse Effect, none of the Company or any of its Subsidiaries is liable for
any arrears of wages, salaries or other benefits or any Taxes or any penalty
for failure to comply with any of the foregoing.


(b)           As of the date of this Agreement, there are no pending or, to the Company’s Knowledge, threatened
claims, lawsuits, complaints, controversies, investigations or other
proceedings against the Company or any of its Subsidiaries brought by or on behalf of any current or
former Company Employee or current or former Company Independent Contractor (other
than regular claims for benefits in accordance with the terms of such Company
Plans and policies), except as would not be reasonably likely to have, individually
or in the aggregate, a Company Material Adverse Effect.


(c)           As of the date of this Agreement, to the Knowledge of the
Company, no current Company Employee or Company Independent Contractor whose
annual cash compensation (including, without limitation, commissions and
bonuses) was in excess of $500,000 in fiscal year 2005 has
given notice to the Company or a Company Subsidiary terminating, nor does the
Company have any Knowledge that any such person intends to terminate, his or
her employment or independent contractor relationship with the Company or its Subsidiaries.


(d)           To the Knowledge of the Company, as of the date of this
Agreement no Company Employee or Company Independent Contractor is in violation
of any term of any employment Contract, non-disclosure agreement,
non-competition agreement, or any restrictive covenant to a former employer
relating (i) to the right of any such person to be employed or retained by the
Company or any of its Subsidiaries because of the nature of the business conducted
or presently proposed to be conducted by the Company or its Subsidiaries, or
(ii) to the use by or for the benefit of any of the Company or any Company Subsidiary of the trade secrets,
intellectual property, or confidential or proprietary information of
others.  To Company’s Knowledge, as of
the date of this Agreement no Company Employee or Company Independent
Contractor is in material violation of any term of any employment Contract,
non-disclosure agreement, non-competition agreement, or restrictive covenant
with the Company or any Company Subsidiary
relating to the business of the Company or any of its Subsidiaries.


(e)           As of the date of this
Agreement, there are no strikes, slowdowns, picketing, work stoppages,
concerted refusal to work overtime, lockouts, other material labor
controversies or disputes or any unfair labor practice charges pending or, to
the Knowledge of the Company, threatened by or between the Company or any
Company Subsidiary and any of their respective Company Employees, nor has any
such controversy or dispute occurred over the last three (3) years.  Neither the Company nor any Company
Subsidiary has recognized a labor union or is a party to, or bound by, any
collective bargaining Contract with a labor union or labor organization, nor,
to the Knowledge of the Company, have there been any organizing efforts during
the past three (3) years, including any petitions for a certification or
unionization proceeding.


(f)            During
the three-year period ending on the date of this Agreement, neither the Company
nor any of its Subsidiaries has effectuated a “plant closing” or “mass layoff”
as those terms are defined in WARN or any similar state law, affecting in whole
or in



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part any site of employment, facility,
operating unit or employee of the Company or any Company Subsidiary.


4.18.        Material
Contracts.


(a)           As
of the date of this Agreement, Section 4.18(a) of the Company
Disclosure Schedule sets forth all of the following Contracts to which the
Company or any Company Subsidiary is a party or which are applicable to any of
their assets or properties, in each case as amended through the date hereof
(each a “Material Contract”):


(i)            Contracts that are
material to the Company and the Company Subsidiaries, taken as a whole, other
than (x) Contracts of Project Entities entered into in Development and
Investment Activities under which the Company or any Company Subsidiary other
than a Project Entity has guaranteed the Indebtedness or other payment
obligation of such Project Entity and (y) SPV Guarantees;


(ii)           Except for SPV
Guarantees, Contracts under which the Company or any Company Subsidiary (other
than a Project Entity) has guaranteed the Indebtedness or other payment
obligation of any Project Entity or Minority Investment, including as a result
of the execution, delivery and performance by the Company of this Agreement and
the consummation by the Company of the Merger and the other transactions
contemplated hereby;


(iii)          other than SPV
Guarantees and Contracts required to be disclosed in clause (a)(ii) above,
Contracts providing for the borrowing or lending of money by the Company or any
Company Subsidiary, whether as borrower, lender or guarantor other than
(x) loans to employees in connection with their initial hiring in the
Ordinary Course of Business not exceeding $100,000 individually and
(y) advances to employees in the Ordinary Course of Business;


(iv)          Contracts pursuant
to which any material property or assets of the Company or any Company
Subsidiary is, or may reasonably be expected to become subject to, a Lien
(other than Permitted Liens) other than (x) SPV Guarantees, and
(y) Contracts creating Liens on assets of Project Entities entered into in
Development and Investment Activities;


(v)           joint venture,
alliance, affiliation or partnership Contracts or joint development or similar
Contracts of the Company and Company Subsidiaries (other than Special Purpose
Vehicles), including with respect to any direct or indirect investment in, or
development of, real property by the Company or a Company Subsidiary other than
a Special Purpose Vehicle;


(vi)          other
than SPV Guarantees and Contracts of Special Purpose Vehicles entered into in
Development and Investment Activities that do not have recourse to the Company
or any Company Subsidiary other than a Special Purpose Vehicle, Contracts for
the acquisition or sale, directly or indirectly (by merger or
otherwise), of material assets (whether tangible or intangible) of
the Company or any Company Subsidiary or the Equity Interests of the Company or
any Company Subsidiary,



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including
Contracts for any such completed acquisitions or sales pursuant to which an “earn
out” or similar form of obligation (whether absolute or contingent) is
currently pending or for which there are any continuing indemnification or
similar obligations, in each case excluding any such Contracts entered into
prior to January 1, 2003 and with respect to which there are no remaining
obligations on the part of any party (including any indemnification
obligations);


(vii)         any interest rate or
currency swaps, caps, floors or option Contracts of the Company or any Company
Subsidiary or any other interest rate or currency risk management arrangement
or foreign exchange Contracts of the Company or any Company Subsidiary;


(viii)        all material
Contracts concerning Company Intellectual Property;


(ix)           contracts with, or
commitments to, Affiliates of the Company, as set forth in Section 4.22 of the
Company Disclosure Schedule;


(x)            Contracts pursuant to which the
Company or any Company Subsidiary is obligated to make any capital contribution
or other investment in or loan to any Person other than (x) SPV
Guarantees, (y) Contracts relating to the items described in Section 4.6
of the Company Disclosure Schedule with respect to Project Entities, and (z)
Contracts of Project Entities entered into in Development and Investment
Activities for which the Company and Company Subsidiaries (other than Project
Entities) have no recourse obligations.


(b)           Neither
the Company nor any Company Subsidiary is, or as of the date of this Agreement,
has received any notice that any other party is, in breach, default or
violation or is unable to perform in any respect (each a “Default”) under any Material Contract (and no event has
occurred or not occurred through the Company’s or any Company Subsidiary’s
action or inaction or, to the Knowledge of the Company, through the action or
inaction of any third parties, which with notice or the lapse of time or both
would constitute or give rise to a Default), except for those Defaults which
would not be reasonably likely to have, individually or in the aggregate, a
Company Material Adverse Effect.  As of
the date of this Agreement, neither the Company nor any Company Subsidiary has
received written notice of the termination of, or intention to terminate, any
Material Contract, except for such notices or terminations that would not be
reasonably likely to have, individually or in the aggregate, a Company Material
Adverse Effect.  No Claims for indemnification under any purchase or sale Contract
have been made by or against the Company or any Company Subsidiary since
January 1, 2003 that have not been fully resolved prior to the date hereof
and, to the Knowledge of the Company, there are no such Claims threatened.


(c)           As of the date of
this Agreement, neither the Company nor any Company Subsidiary is party to any
Contract containing covenants that would limit in any material respect after
the Effective Time the ability of Parent or any of its Subsidiaries (excluding,
after the Effective Time, the Company or any Company Subsidiary) to (i) engage
in any line of business, (ii) compete with any person in any market or line of
business or (iii)



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operate, manage, finance or develop properties in any geographic area
or for any type of use (the types of limitations and rights described in
clauses (i) through (iii), “Exclusivity
Arrangements”), other than Exclusivity Arrangements that restrict
activities in a specific local market (as opposed to broader regional, state or
national restrictions) that apply only to Development and Investment
Activities.


(d)           Except
as would not be reasonably likely to have a Company Material Adverse Effect,
(i) no default has occurred with respect to any of the SPV Guarantees or,
if applicable, any Contracts providing for construction or other loans, such
that there would be recourse under such Contracts to the Company or any Company
Subsidiary for the Indebtedness or other payment obligation of any other Person
other than a Special Purpose Vehicle, and (ii) as of the date of this
Agreement, no claim against the Company or any Company Subsidiary other than a
Special Purpose Vehicle has been made in writing to the Company by the
counterparties thereto under such SPV Guarantees or such Contracts.  Except as would not be reasonably likely to
have a Company Material Adverse Effect, (x) no default has occurred under
any joint venture, limited liability company or partnership Contracts to the
extent such Contracts are the governing documents of any Special Purpose Vehicle
such that there would be recourse under such Contracts to the Company or any
Company Subsidiary other than a Special Purpose Vehicle, and, (y) as of
the date of this Agreement, no claim against the Company or any Company
Subsidiary other than a Special Purpose Vehicle has been made in writing to the
Company by the counterparties to such Contracts under such Contracts.


4.19.        Real
Estate.


(a)           Section 4.19(a) of
the Company Disclosure Schedule contains a true and complete list of all of the
material leases, ground leases, licenses, tenancies, subleases and all other
occupancy agreements in which any Company Subsidiary (other than a Special
Purpose Vehicle to the extent such agreement is non-recourse (except for SPV
Guarantees) to the Company and the Company Subsidiaries other than any Special
Purpose Vehicle) is a tenant or subtenant as of the date hereof (the leased and
subleased space or parcel of real property thereunder being, collectively, the “Leased Property”) (the “Leases”).  Except as would not be reasonably likely to
have, individually or in the aggregate, a Company Material Adverse Effect:
(i) the Company (or the applicable Company Subsidiary) has good and valid
title to the leasehold estate in all the Leased Property, free and clear of any
Liens against such leasehold estate (other than Permitted Liens), (ii) the
Leases (with such term including solely for purposes of clauses (ii) through
(v), inclusive, of this Section 4.19(a), all amendments, and
modifications, supplements, renewals, extensions and guarantees related
thereto) are valid, binding and enforceable against the Company or such
Subsidiary in accordance with their terms and in full force and effect,
(iii) neither the Company (or the applicable Company Subsidiary), nor to
the Knowledge of the Company, any other party to any Lease, is in default under
such Lease, and no event has occurred which, with notice or lapse of time,
would constitute a breach or default by the Company (or such Company
Subsidiary) under the Leases, (iv) the Company (or the applicable Company
Subsidiary) has not assigned, transferred, conveyed, mortgaged, or encumbered
any interest in any Leased Property, and (v) the Company (or the applicable
Company Subsidiary or to the Company’s Knowledge the applicable other Company
Entity) enjoys peaceful and undisturbed possession under the Leases.



 36
 






 



 


(b)           Neither
the Company nor the Company Subsidiaries (other than the Special Purpose
Vehicles) owns any real property or interest in real property (other than
leasehold interests).


(c)           The
Leased Property constitutes all real property necessary to operate the
businesses of the Company and its Subsidiaries in all material respects as
presently conducted (other than with respect to the Special Purpose Vehicles).


4.20.        Environmental. 
Except as would not be reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect: (i) the Company and each
Company Subsidiary complies, and at all times has complied, and to the Company’s
Knowledge each other Company Entity complies and at all times has complied,
with all applicable Environmental Laws, and possess and comply with, and at all
times possessed and complied with, all applicable Environmental Permits
required under such Laws; (ii) there are no Materials of Environmental
Concern or other facts, events, conditions or set of circumstances at or
relating to any property or other facility (A) currently or previously owned or
leased, by the Company or any Company Subsidiary, (B) currently managed or
operated by the Company, any Company Subsidiary other than a Special Purpose
Vehicle or (C) currently managed or operated by a Special Purpose Vehicle with
respect to which an environmental guarantee has been entered into with respect
thereto, in each case that would reasonably be expected to result in liability
of the Company or any Company Subsidiary under any applicable Environmental
Law; and (iii) neither the Company nor any Company Subsidiary has received or
is otherwise aware of any Claim or any written notification alleging that it is
liable under any Environmental Law, or any request for information pursuant to
Section 104(e) of the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, or similar Law concerning any
release or threatened release of Materials of Environmental Concern at any
location; and (iv) none of the Company and the Company Subsidiaries and to the
Company’s Knowledge any other Special Purpose Vehicle has contractually assumed
any liability under any Environmental Law other than in the conduct of
Development and Investment Activities or under services contracts, property
management agreements with clients or other contracts entered into in the
Ordinary Course of Business.


4.21.        Insurance.  Section 4.21 of the Company Disclosure Schedule
lists all insurance policies involving general errors and omissions, directors
and officers coverage or environmental liabilities of the Company or any of its
Subsidiaries in effect on the date hereof and true and correct copies of such
insurance policies have been made available to Acquiror.  As of the date of this Agreement, there is no
material claim by the Company or any Company Subsidiary pending under any such
insurance as to which coverage has been questioned, denied or disputed by the
underwriters of such insurance.  All
premiums payable under all such insurance have been paid when due and the
Company and each Company Subsidiary is in all material respects in full
compliance with the terms of such insurance.


4.22.        Affiliate Transactions.  Except (i) for any expense reimbursements and
advances in the Ordinary Course of Business, (ii) for any employment or
consulting agreement identified in the Company Disclosure Schedule and any
other employment agreement with officers other than executive officers, (iii)
for benefits pursuant to a Company Plan, or (iv) for transactions in the
Ordinary Course of Business with any Affiliate of a non-employee member of



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the Company’s Board of Directors, there are no
Contracts with more than $250,000 of obligations, commitments or payments
remaining as of the date of this Agreement between the Company or any Company
Entity, on the one hand, and any (x) executive officer or director of the
Company or any Company Subsidiary or any of their immediate family members (including
their spouses) or any Person known by the Company to be an Affiliate of such
Person, or (y) Person known by the Company to be a beneficial owner of
five percent (5%) or more of any class or series of voting securities of the
Company.


4.23.        Required Vote;
Board Approval; State Takeover Statutes.


(a)           The
only vote required of the holders of any class or series of the Company’s
Equity Interests necessary to adopt this Agreement and to approve the Merger
and the other transactions contemplated hereby is the approval of a majority of
the outstanding Company Shares (the “Company
Stockholder Approval”).


(b)           On
or prior to the date hereof, the Company’s Board of Directors has
(i) determined that this Agreement, the Voting Agreements and the
transactions contemplated hereby and thereby, including the Merger, are
advisable and in the best interests of the Company and the Company
Stockholders, (ii) approved and declared advisable this Agreement and
approved the Voting Agreements and the transactions contemplated hereby and
thereby, including the Merger, and (iii) resolved to recommend to the
Company Stockholders that they vote in favor of adopting and approving this
Agreement (the action set forth in clause (iii) is referred to as the “Company Recommendation”). 
Such approval by the Company’s Board of Directors is sufficient to
render inapplicable to this Agreement, the Voting Agreements and the Merger and
any of such other transactions contemplated hereby or thereby, the restrictions
on “business combinations” set forth in Section 203 of the DGCL.  No state takeover statute or similar statute
or regulation of the states of Delaware or Texas applies or purports to apply
to the Merger, this Agreement, the Voting Agreements or any of the transactions
contemplated hereby or thereby and no provision of the Organizational Documents
of the Company or any Company Subsidiary would, directly or indirectly,
restrict or impair the ability of Parent to vote, or otherwise to exercise the
rights of a stockholder with respect to, shares of the Company and any Company
Subsidiary that may be acquired or controlled by Parent, as a result of the
Merger or otherwise.


(c)           Except
as provided in Section 4.23(b), no other state takeover statute or similar
statute or regulation applies or purports to apply to the Merger, this
Agreement, the Voting Agreements or any of the transactions contemplated hereby
or thereby.


4.24.        Information
to Be Supplied.  The Proxy Statement will not, at the time of
the mailing thereof and at the time of the Company Stockholder Meeting and in
light of the circumstances in which they are made, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading.  The Proxy Statement will comply as to form
with the provisions of the Exchange Act. 
Notwithstanding the foregoing, the Company makes no representation or
warranty with respect to any statements made or incorporated by reference in
the Proxy Statement based on information supplied by Parent or Acquiror in
writing specifically for inclusion or incorporation by reference therein.



 38














 


 


ARTICLE 5


REPRESENTATIONS
AND WARRANTIES OF PARENT AND ACQUIROR


Except
as disclosed in the Parent and Acquiror Disclosure Schedule attached hereto,
Parent and Acquiror, jointly and severally, represent and warrant to the
Company that:


5.1.          Corporate
Existence and Power.  Each of Parent and Acquiror is a corporation
duly incorporated, validly existing and in good standing under the Laws of its
jurisdiction of incorporation and has all corporate powers and authority
required to own, lease and operate its properties and assets and carry on its
business as now conducted.  Each of
Parent and Acquiror is duly qualified to do business as a foreign corporation
and is in good standing in each jurisdiction where the character of the
property owned, leased or operated by it or the nature of its activities makes
qualification necessary, except where the failure to be qualified has not had
and would not be reasonably likely to have, individually or in the aggregate, a
Parent Material Adverse Effect.  True and
correct copies of the certificate of incorporation and bylaws of Acquiror, and
all amendments, modifications or supplements thereto, have been provided to the
Company.


5.2.          Corporate
Authorization.  The execution, delivery and performance by
each of Parent and Acquiror of this Agreement and the consummation by each of
Parent and Acquiror of the Merger and the other transactions contemplated
hereby are within the corporate powers of each of Parent and Acquiror and have
been duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of Parent or Acquiror are necessary to
authorize this Agreement or to consummate the transactions contemplated
hereby.  This Agreement has been duly and
validly executed and delivered by each of Parent and Acquiror and assuming that
this Agreement constitutes the valid and binding obligation of the Company,
this Agreement constitutes a valid and binding agreement of each of Parent and
Acquiror, enforceable in accordance with its terms.


5.3.          Governmental
Authorization.  The execution, delivery and performance by
each of Parent and Acquiror of this Agreement and the consummation by Parent
and Acquiror of the transactions contemplated hereby will not require any
consent, approval, action, order, authorization, or permit of, or registration,
declaration or filing with, any Governmental Entity by Parent or Acquiror other
than (a) those set forth in clauses (a) through (d) of
Section 4.3 and (b) other consents, approvals, actions, orders,
authorizations, permits, registrations, declarations and filings which, if not
obtained or made, would not be reasonably likely to have, individually or in
the aggregate, a Parent Material Adverse Effect.


5.4.          Non-Contravention.  The execution, delivery and performance by
Parent and Acquiror of this Agreement and the consummation by Parent and
Acquiror of the Merger and the other transactions contemplated hereby do not
and will not (a) contravene or conflict with the Organizational Documents
of Parent or Acquiror, (b) assuming compliance with the matters referred
to in Section 5.3, contravene or conflict with any provision of Law,
binding upon or applicable to Parent or Acquiror or by which any of their
respective properties or assets is bound or affected, (c) constitute a
breach or default under (or an event that with notice or lapse of time or both
could reasonably become a breach or default) or give rise (with or without
notice



 39
 






 



 


or lapse of time or both) to a right of
termination, amendment, cancellation or acceleration under any Contract binding
upon, Parent or Acquiror or their respective properties or assets, or
(d) result in the creation or imposition of any Lien on any asset of
Parent or Acquiror other than, in the case of clauses (b), (c) and (d) taken
together, any such items that have not had and would not be reasonably likely
to have a Parent Material Adverse Effect.


5.5.          Financing. 
As of the date of this Agreement, Acquiror has received an executed
commitment letter dated October 30, 2006 (the “Commitment Letter”) from Credit Suisse and Credit Suisse
Securities (USA) LLC (“Lender”),
pursuant to which Lender has committed, subject to the terms and conditions set
forth therein, to provide to Parent the amount of financing set forth in the
Commitment Letter (the “Financing”),
to complete the transactions contemplated hereby.  A true and complete copy of the Commitment
Letter has been previously provided to the Company.  Acquiror has fully paid any and all
commitment fees or other fees required by such Commitment Letter to be paid as
of the date hereof.  As of the date
hereof, the Commitment Letter is valid and in full force and effect, does not
contain any material misrepresentation by Parent (other than those resulting
from inaccurate information, if any, provided by the Company) and no event has
occurred which (with or without notice, lapse of time or both) would constitute
a breach thereunder on the part of Parent or Acquiror.  There are no conditions precedent or other
contingencies related to the funding of the full amount of the Financing, other
than as set forth in or contemplated by the Commitment Letter.  The aggregate proceeds contemplated by the
Commitment Letter, together with available cash of Parent and Acquiror, will be
sufficient for Acquiror and the Surviving Corporation to pay the aggregate
Merger Consideration, the aggregate consideration to be paid to each holder of
a Company Option and other awards pursuant to Section 3.5, any repayment
or refinancing of debt contemplated in the Commitment Letter and the fees and
expenses incurred in connection with the transactions contemplated hereby.  The fee letter between Parent and Lender
referred to in the Commitment Letter does not contain any conditions precedent
or other contingencies related to the funding of the full amount of the
Financing or any provisions that could reduce the aggregate amount of the
Financing set forth in the Commitment Letter or the aggregate proceeds
contemplated by the Commitment Letter. 
As of the date hereof, none of Parent or Acquiror has any reason to
believe that any of the conditions to the Financing will not be satisfied or
that the Financing will not be available to Parent and Acquiror on the Closing
Date.


5.6.          Information
to Be Supplied.  The information supplied or to be supplied by
Parent and Acquiror (if any) in writing specifically for inclusion or
incorporation by reference in the Proxy Statement will, at the time of the
mailing thereof and at the time of the Company Stockholder Meeting, not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading.


5.7.          Solvency; Surviving
Corporation After the Merger.  Neither Parent nor Acquiror is entering into
the transactions contemplated by this Agreement with the actual intent to
hinder, delay or defraud either present or future creditors.  Assuming that the representations and
warranties of the Company contained in this Agreement are true and correct in
all material respects, and after giving effect to the Merger and the other
transactions contemplated hereby, at and immediately after the Effective Time,
the Surviving Corporation (i) will be solvent (in that both the fair value of
its assets will not be less than the sum of its debts and that the present fair



 40
 






 



 


saleable value of its
assets will not be less than the amount required to pay its probable liability
on its recourse debts as they become absolute and matured); (ii) will have
adequate capital and liquidity with which to engage in its business; and (iii)
will not have incurred and does not plan to incur debts beyond its ability to
pay as they become absolute and matured.


5.8.          Vote/Approval
Required.  No vote or consent of the holders of any
class or series of capital stock of Parent is necessary to approve this
Agreement or the Merger or the transactions contemplated hereby.  The vote or consent of Services, a
wholly-owned subsidiary of Parent, as the sole stockholder of Acquiror is the
only vote or consent of the holders of any class or series of capital stock of
Parent or Acquiror necessary to approve this Agreement or the Merger or the
transactions contemplated hereby and Parent will cause such vote to be obtained
on the date of this Agreement.


5.9.          Parent
SEC Documents.


(a)           Parent
has filed all forms, reports, filings, registration statements and other
documents required to be filed by it with the SEC since December 31, 2004.  No Subsidiary of Parent is required to file
any form, report, registration statement or prospectus or other document with
the SEC pursuant to the Exchange Act.


(b)           As
of its filing date, each Parent SEC Document complied as to form in all
material respects with the applicable requirements of the Securities Act and/or
the Exchange Act, as the case may be.


(c)           No
Parent SEC Document filed since December 31, 2004 pursuant to the Exchange Act
contained, as of its filing date, any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading.  No Parent SEC Document, as
amended or supplemented, if applicable, filed since December 31, 2004 pursuant
to the Securities Act contained, as of the date on which the document or
amendment became effective, any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading.


(d)           Each
of the audited consolidated financial statements and unaudited consolidated
interim financial statements of the Company included in the Parent SEC
Documents were prepared in conformity with GAAP (except as may be indicated in
the notes thereto) throughout the periods involved, and each fairly presents,
in all material respects, the consolidated financial position of the Company
and its consolidated Subsidiaries as of the date thereof and their consolidated
results of operations and changes in financial position for the periods then
ended (subject to normal year-end adjustments in the case of any unaudited
interim financial statements).


5.10.        Litigation. 
As of the date of this Agreement, there is no Claim pending, or, to the
knowledge of Parent or Acquiror, threatened, against or affecting Parent or
Acquiror (“Parent Litigation”) or
against any of their respective assets, properties or employees before any
arbitrator or Governmental Entity that would reasonably be expected to materially
adversely affect the ability of Parent or Acquiror to consummate the Merger,
and neither Parent nor



 41
 






 



 


Acquiror nor any of their
respective properties or assets or, to the Knowledge of Parent or Acquiror,
employees is or are subject to any Order that would reasonably be expected to
materially adversely affect the ability of the Company or Acquiror to
consummate the Merger.


5.11.        No
Business Conduct; Ownership.  Acquiror was incorporated on October 25,
2006.  Since its inception, Acquiror has
not engaged in any activity, other than such actions in connection with (i) its
organization and (ii) the preparation, negotiation and execution of this
Agreement and the transactions contemplated hereby.  Acquiror has not had any operations, has not
generated any revenues and has no liabilities other than those incurred in
connection with the foregoing and in association with the Merger as provided in
this Agreement.  All of the Equity
Interests of Acquiror are wholly-owned (directly or indirectly) by Parent.


ARTICLE 6


COVENANTS
OF THE COMPANY


The Company agrees as set forth below.


6.1.          Company
Interim Operations.


(a)           Except
as set forth in Section 6.1 of the Company Disclosure Schedule or as otherwise
expressly contemplated by this Agreement, without the prior written consent of
Acquiror (which consent shall not be unreasonably withheld, conditioned or
delayed following a written request for such consent), from the date hereof
until the Effective Time, the Company shall, and shall cause each Company
Subsidiary (other than any Special Purpose Vehicle) to, conduct its business in
all material respects in the Ordinary Course of Business, and, subject to the
limitations, restrictions and prohibitions contained herein, shall use all
reasonable efforts to (x) maintain in effect all material Permits that are
required for the Company or such Company Subsidiary (other than any Special
Purpose Vehicle) to carry on its business as currently conducted, (y) keep
available the services of the key officers, employees and independent
contractors set forth on Section 6.1(a)(y) of Parent Disclosure Schedule, and
(z) preserve existing relationships with its material customers, lenders,
suppliers and other Persons having material business relationships with it.  Without limiting the generality of the
foregoing, except as set forth in Section 6.1 of the Company Disclosure
Schedule or as otherwise expressly contemplated by this Agreement, from the
date hereof until the Effective Time, without the prior written consent of
Acquiror (such consent not to be unreasonably withheld, conditioned or
delayed), the Company shall not, nor shall it permit any Company Subsidiary to,
directly or indirectly:


(i)            amend the
Organizational Documents of the Company or any Company Subsidiary other than
amendments to the Organizational Documents of Company Subsidiaries in the
Ordinary Course of Business in a manner that would not adversely affect the
consummation of the Merger, the other transactions contemplated hereby and the
Financing;


(ii)           (A)  split, combine or reclassify any of its
Equity Interests or amend the terms of any rights, warrants or options to
acquire its securities, (B) except



 42
 






 



 


for dividends
in the Ordinary Course of Business by a wholly-owned Company Subsidiary,
declare, set aside or pay any dividend or other distribution (whether in cash,
stock or property or any combination thereof) in respect of its Equity
Interests or otherwise make any payments to holders of such Equity Interests in
their capacities as such, or (C) redeem, repurchase or otherwise acquire
or offer to redeem, repurchase, or otherwise acquire any of its securities or
any rights, warrants or options to acquire its securities, except in the case
of the foregoing clauses (A), (B) and (C), with respect only to Special Purpose
Vehicles for any such actions that are in the Ordinary Course of Business;


(iii)          except with respect
to Special Purpose Vehicles and Development and Investment Activities permitted
by Section 6.1(b), to which Section 6.1(b) (and not this Section
6.1(a)(iii)) applies, issue, deliver, sell, exchange, grant, pledge, encumber
or transfer or authorize the issuance, delivery, sale, grant, pledge,
encumbrance or transfer of, any Equity Interests of the Company or any Company
Subsidiary or any securities convertible into or exercisable for, or any
rights, warrants or options to acquire, any Equity Interests of the Company or
any wholly-owned Company Subsidiary, other than the issuance of Company Shares
pursuant to the exercise of Company Options granted prior to the date hereof;


(iv)          except with respect
to Special Purpose Vehicles and Development and Investment Activities permitted
by Section 6.1(b), to which Section 6.1(b) (and not this Section
6.1(a)(iv)) applies, acquire, directly or indirectly (whether pursuant to
merger, stock or asset purchase, joint venture or otherwise), in one
transaction or series of related transactions (A) any Person, any Equity
Interests or other securities of any Person, any division or business of any
Person or all or substantially all of the assets of any Person or (B) any
interest or investment in real property, except in either case to the extent
(1) otherwise obligated pursuant to any Contract as of the date hereof, a
copy of which has previously been made available to Parent subject to redaction
for competitively sensitive information or (2) solely among or between the Company and
Company Subsidiaries;


(v)           except with respect
to Special Purpose Vehicles and Development and Investment Activities permitted
by Section 6.1(b), to which Section 6.1(b) (and not this Section
6.1(a)(v)) applies, sell, lease, license, encumber or otherwise dispose of any
assets, or rights, other than (A) obsolete equipment and property no
longer used in the operation of the business of the Company or the Company
Subsidiaries and (B) assets which do not have a value of more than $1,000,000
individually or $10,000,000 in the aggregate;


(vi)          except
with respect to Special Purpose Vehicles and Development and Investment
Activities permitted by Section 6.1(b), to which Section 6.1(b) (and not
this Section 6.1(a)(vi)) applies, (A) (1)  incur any indebtedness for
borrowed money, except borrowings under the terms of the Credit Agreements to
fund working capital in the Ordinary Course of Business, (2) issue or sell
any debt securities or warrants or other rights to acquire any debt securities
of the Company or any Company Subsidiary, (3) make any loans, advances or
capital contributions to, or investments in,



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any other
Person, other than to the Company or any Company Subsidiary and other than
advancements to developers or brokers and other commission based Company
Employees or Company Independent Contractors in the Ordinary Course of Business
or (4) assume, guarantee or endorse, or otherwise as an accommodation become
responsible for, the obligations of any Person (other than obligations of the
Company or any Company Subsidiary and the endorsements of negotiable
instruments for collection in the Ordinary Course of Business), or
(B) enter into or materially amend any Contract to effect any of the
transactions prohibited by this Section 6.1a(vi);


(vii)         except with respect
to Special Purpose Vehicles and Development and Investment Activities permitted
by Section 6.1(b), to which Section 6.1(b) (and not this Section 6.1(a)(vii))
applies, (A) enter into any Exclusivity Arrangements that would: (x) be
applicable after the Effective Time to Parent or any of its Subsidiaries
(excluding, after the Effective Time, the Company or any Company Subsidiary),
(y) restrict activities with respect to a geographic location other than
restrictions limited in scope to a specific local market (as opposed to broader
regional, state or national restrictions), or (z) apply to activities other
than Development and Investment Activities of the Company or any Company
Subsidiary (other than any Special Purpose Vehicle), (B) enter any
Contract that if entered into prior to the date hereof would be a Material
Contract pursuant to clauses (ii), (iv), (v), (vi) or (ix) of the
definition of Material Contract, (C) other than in the Ordinary Course of
Business, enter into any Contract that would be a Material Contract pursuant to
clauses (vii), (viii) or (x) of the definition of Material Contract,
(D) enter into any Contracts with the Person set forth in Section 6.1(a)(vii)(D)
of the Company Disclosure Schedule other than as set forth on such schedule,
(E) other than in the Ordinary Course of Business, enter into any Contract
that is not a revenue producing Contract that would be included in clause (i)
of the definition of Material Contracts but would not otherwise fall within any
of clauses (ii) through (x) of the definition of Material Contracts),
(F) amend or modify in any material respect or terminate any Material
Contract that the Company or such Company Subsidiaries could not otherwise
enter into without the prior written consent of Parent, or (G) other than
in the Ordinary Course of Business otherwise waive, release or assign any
material rights, claims or benefits of the Company or any Company Subsidiary under
any Material Contract;


(viii)        except
as required by applicable Law or the terms of any Company Plan existing as of
the date of this Agreement, (A) unless provided for in the 2006 Budget set
forth in Schedule 6.1(i), increase the compensation (including commission
rates) or benefits of any present or former director, officer or employee of
the Company or any Company Subsidiaries, (B) pay a bonus, whether accrued
or unaccrued, to any Company Employee or Company Independent Contractor other
than payments pursuant to the Company’s annual cash incentive programs as in
effect on the date of this agreement (including the Trammell Crow Company 2006
Annual Principal Bonus Plan) in the Ordinary Course of Business or under other
commitments made or contemplated in writing prior to October 20, 2006 (with all
implementation of any discretionary elements thereof being made only in the
Ordinary Course of Business), (C) grant or alter the terms of, any
severance, retention or termination pay or benefit to any Company Employee or
Company Independent Contractor other than (x) payment in



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the Ordinary
Course of Business to any Company Employee or Company Independent Contractor
whose employment is terminated between the date hereof and the Closing Date,
(y) newly hired Company Employees receiving the benefits of the Company’s
standard severance plan as in effect on the date of this Agreement and (z)
grants of retention pay in accordance with the Trammell Crow Company, Retention
Plan or as set forth on Schedule 6.1(a)(viii)(c), (D) establish, adopt,
enter into, amend or terminate any Company Plan or any Contract that would be a
Company Plan if it were in existence as of the date of this Agreement,
(E) grant any equity or equity-based awards (other than the issuance of
Company Shares pursuant to the exercise of Company Options granted prior to the
date hereof), (F) increase the funding obligation or contribution rate of
any Company Plan subject to Title IV of ERISA, (G) allow for the
commencement of any new offering periods under any employee stock purchase
plans, (H) enter into any employment, consulting, Independent Contractor
or similar Contract, or amend, supplement or modify the terms of any such
existing Contracts except as contemplated by the following clause (I), (I) hire,
or offer to hire, any new employee or enter into any new employment or
Independent Contractor relationship, or agree to enter into any new Independent
Contractor relationship (except in the case of this clause (I) (1)
non-management employees in the Ordinary Course of Business, (2) to replace
departing management employees or independent contractors after the date
hereof, provided that the compensation and benefits offered to such replacement
do not materially exceed that of the replaced employee or independent
contractor, (3) with respect to offers of employment that are outstanding as of
the date hereof, and (4) employees or Independent Contractors assigned to
outsourcing projects pursuant to outsourcing Contracts or to properties managed
by the Company or any of its Subsidiaries in the Ordinary Course of Business),
or (J) terminate any Company Employee or Company Independent Contractor
unless such termination is in the Ordinary Course of Business;


(ix)           other than with
respect to Special Purpose Vehicles and Development and Investment Activities
permitted by Section 6.1(b) to which this Section 6.1(a)(ix) does not
apply and except as set forth in Section 6.1 of the Company Disclosure
Schedule and on the 2006 Budget set forth in Section 6.1 of the Company
Disclosure Schedule (the “2006 Budget”),
authorize or make any single capital expenditure in excess of $2,000,000 or
aggregate capital expenditures of the Company and the Company Subsidiaries
taken together, in excess of $10,000,000;


(x)    change the Company’s
methods of accounting in effect at December 31, 2005, except as required
by changes in GAAP or by Regulation S-X of the Exchange Act or as otherwise
specifically disclosed in the Company SEC Documents filed prior to the date
hereof;


(xi)           (A)
except for the payment of any deductible under an existing insurance policy (or
a commercially reasonable substitute for a company engaged in businesses
similar to those of the Company and Company Subsidiaries (other than any
Special Purpose Vehicle)) with respect to a Claim that is being settled by such
insurance company, settle, pay, compromise or discharge, any Claim that (x)
requires any payment by the Company and Company Subsidiaries (other than any
Special Purpose Vehicle) in excess of $500,000 or (y) involves any restrictions
on the conduct of the



 45
 






 



 


Company or any
Company Subsidiary (other than any Special Purpose Vehicle) or Affiliates’
business or other equitable remedies that materially adversely affect the
business of the Company or any Company Subsidiary (other than any Special
Purpose Vehicle) or (B)  settle, pay, compromise or discharge any Claim
against the Company or any Company Subsidiary with respect to or arising out of
the transactions contemplated by this Agreement or the Voting Agreements;


(xii)  other than in the Ordinary
Course of Business and other than with respect to any Special Purpose Vehicle,
(A) make or change any material Tax election, (B) enter into any
settlement or compromise of any material Tax liability, (C) file any
amended Company Return with respect to any material Tax, (D) change any annual
Tax accounting period or accounting method, (E) enter into any closing
agreement relating to any material Tax or (F) surrender any right to claim
a material Tax refund;


(xiii)         other than with
respect to any Special Purpose Vehicle, create any new business division or
otherwise enter into any new line of business;


(xiv)        fail to continuously
maintain in full force and effect its current insurance or a commercially
reasonable substitute for a company engaged in businesses similar to those of
the Company and Company Subsidiaries (other than any Special Purpose Vehicle);


(xv)         other than with
respect to wholly-owned Company Subsidiaries or any Special Purpose Vehicle,
adopt a plan of complete or partial liquidation, dissolution, merger,
consolidation, restructuring, recapitalization or other reorganization of the
Company or any Company Subsidiary (other than any Special Purpose Vehicle)
(other than this Agreement and the Merger and other transactions contemplated
hereby);


(xvi)        except as otherwise
permitted by Section 6.1(a)(viii) and except for (A) expense
reimbursements and advances in the Ordinary Course of Business and (B)
transactions in the Ordinary Course of Business with Affiliates of any non-employee
member of the Company’s Board of Directors, enter into any Contract with any
officer or director of the Company or Company Subsidiaries or any of their
immediate family members (including their spouses);


(xvii)       enter into any
Contract having terms that (A) provide for the making of any payment as a
result of the Merger, (B) would result in the occurrence of a material and
adverse change in the rights or obligations of the Company or any of the
Company Subsidiaries as a result of the Merger or (C) would result in the
occurrence of a material change in the rights or obligations of the
counterparty thereto as a result of the Merger;


(xviii)      effectuate a “plant
closing” or “mass layoff” as those terms are defined in WARN or any similar
state law, affecting in whole or in part any site of employment, facility,
operating unit or employee of the Company or any Company Subsidiary (other than
any Special Purpose Vehicle); and



 46
 






 



 


(xix)         authorize, agree or
commit, verbally or in writing, to do any of the foregoing.


(b)           Except
as set forth in Section 6.1 of the Company Disclosure Schedule or as
otherwise expressly contemplated by this Agreement, without the prior written
consent of Acquiror (which consent shall not be unreasonably withheld,
conditioned or delayed), from the date hereof until the Effective Time, the
Company shall cause each Special Purpose Vehicle which it controls to, conduct
such Special Purpose Vehicle’s business in all material respects in the
Ordinary Course of Business.  Except as
set forth in Section 6.1 of the Company Disclosure Schedule or as otherwise
expressly contemplated by this Agreement, from the date hereof until the
Effective Time, without the prior written consent of Acquiror (such consent not
to be unreasonably withheld, conditioned or delayed), the Company shall cause
the Company Subsidiaries in the conduct of their Development and Investment
Activities to, and shall cause each Special Purpose Vehicle which it controls
to:


(i)            sell, lease or
otherwise dispose of properties only in the Ordinary Course of Business,
provided that such sale, lease or other disposition does not provide for
recourse to the Company or any Company Subsidiary (other than Project Entities)
other than for (x) master lease obligations, (y) obligations that
would not reasonably be expected to exceed $5,000,000 in the aggregate for all
such dispositions in any 90-day period, or (z) SPV Guarantees;


(ii)           engage in any new
Development and Investment Activity after the date hereof only in the Ordinary
Course of Business;


(iii)          from the date
hereto through the Closing Date, (A) issue, deliver, sell, exchange, grant,
pledge, encumber or transfer or authorize the issuance, delivery, sale, grant,
pledge, encumbrance or transfer of, Equity Interests of any Special Purpose
Vehicle or any securities convertible into or exercisable for, or any rights,
warrants or options to acquire, any Equity Interests of such Special Purpose
Vehicle, (B) invest capital only in the Ordinary Course of Business, and (C)
incur indebtedness for borrowed money, in each case of the foregoing clauses
(A), (B) and (C),
only in connection with a Development and Investment Activity, provided that


(1)           the
aggregate amount of (x) capital invested (whether in the form of equity or
debt) by the Company and all Company Subsidiaries (excluding Project Entities)
in Project Entities (“Capital Investments”)
on or after the date of this Agreement plus (without duplication) (y) all
legally binding commitments to invest capital (whether in the form of equity or
debt) in Development and Investment Activities (“Capital
Commitments”) entered into on or after the date of this Agreement by
the Company and all Company Subsidiaries (excluding Project Entities) will not
exceed the sum of (A) the aggregate amount of all unfunded Capital
Commitments by the Company and all Company Subsidiaries (excluding Project
Entities) that were outstanding as of October 29, 2006, plus
(B) the aggregate amount of cash distributed to the Company and the
Company Subsidiaries (excluding Project Entities) on or after the date of this
Agreement by Project Entities in respect of promoted interests, incentive fees,
development and



 47
 






 



 


investment
services fees or Capital Investments (whether such Capital Investments are
outstanding as of the date of this Agreement or made after the date of this
Agreement in accordance with this Section 6.1(b)), net of any fees,
employee compensation, taxes or other cash expenses payable by the Company and
the Company Subsidiaries in respect of such distributions or the transactions
relating thereto, plus (C) $60 million, plus (D) in the
event (and only in the event) that the Closing Date does not occur on or prior
to April 30, 2007, $30 million;


(2)           the Company and the Company
Subsidiaries will not acquire any ownership interest in any project or real
property constituting Development and Investment Activities other than
indirectly through Project Entities.  The
Company and the Company Subsidiaries’ direct or indirect ownership interest in
any project or real property constituting Development and Investment Activities
will only be held through one or more Project Entities;


(3)           with respect to any individual
Development and Investment Project, the maximum amount of Indebtedness or other
payment obligation of the Project Entities relating to such project that is
guaranteed by, or for which there is otherwise recourse to (in each case other
than an SPV Guarantee), the Company and the Company Subsidiaries (other than
Project Entities) shall not exceed $10 million;


(4)           the maximum amount of Indebtedness or
other payment obligation of the Project Entities taken as a whole that is
guaranteed by, or for which there is otherwise recourse to (in each case other
than SPV Guarantees), the Company and the Company Subsidiaries (other than
Project Entities) shall not exceed (A) $59 million in the aggregate at all
times on or prior to April 30, 2007 and (B) $71 million in the aggregate at all
times after April 30, 2007; and


(5)           for any Development and Investment
project or investment with respect to which it is proposed that the sum of
(i) the Capital Investments and (without duplication) Capital Commitments
by the Company and Company Subsidiaries (excluding Project Entities), and
(ii) the portion of the Indebtedness or other payment obligation to be
guaranteed (other than an SPV Guarantee) by the Company and/or any Company
Subsidiaries (other than the Project Entity that owns the Development and
Investment Project or such entity’s general partner) exceed $5,000,000, such
Development and Investment Activity must be consented to and approved by
Messrs. Bob Sulentic, Jim Groch and Chris Kirk prior to the time that the sum
of such Capital Investment, Capital Commitment and portion of Indebtedness or
other payment obligation so guaranteed exceeds $5,000,000;


(iv)          not
pay, or contractually commit to any, promote compensation to any employees of
the Company or any Company Subsidiary in connection with any Development and
Investment Activity if such payment would be inconsistent with the policies of
the Company set forth in Section 6.1(b) of the Company



 48
 






 



 


Disclosure
Schedule unless approved by Bob Sulentic after consultation with Brett White;


(v)           not enter into any
Exclusivity Arrangements that would: (A) be applicable after the Effective Time
to Parent or any of its Subsidiaries (excluding, after the Effective Time, the
Company or any Company Subsidiary), or (B) apply to activities other than
Development and Investment Activities of the Company or any Company Subsidiary
(other than any Special Purpose Vehicle);


(vi)          not, other than in
the Ordinary Course of Business, enter into any interest rate or currency
swaps, caps, floors or option Contracts of the Company or any Company
Subsidiary or any other interest rate or currency risk management arrangement
or foreign exchange Contracts of the Company or any Company Subsidiary;


(vii)         not, other than in
the Ordinary Course of Business, enter into any material Contract concerning
Company Intellectual Property;


(viii)        not enter into any
contracts with, or commitments to, Affiliate of the Company, as set forth in
Section 4.22 of the Company Disclosure Schedule, or with the Person set forth
in Section 6.1(a)(vii)(D) of the Company Disclosure Schedule; or


(ix)           amend or modify in
any material respect or terminate any Contract that the Company or such Company
Subsidiaries could not otherwise enter into without the prior written consent
of Parent pursuant to this Section 6.1(b).


(c)           Holding,
Parent and Acquiror acknowledge and agree that (i) nothing contained in this
Agreement shall give Holding, Parent or Acquiror, directly or indirectly, the
right to control or direct the Company’s or the Company Subsidiaries’
operations prior to the Effective Time, and (ii) prior to the Effective Time,
each of the Company, on the one hand, and Holding, Parent and Acquiror, on the
other hand, shall exercise, consistent with the terms and conditions of this
Agreement, complete control and supervision over its respective
operations.  To the extent Parent
determines there are any Exclusivity Arrangements that purport to restrict
Parent and its Subsidiaries (other than the conduct by the Company, Company
Subsidiaries and the Special Purpose Vehicles) following the Closing, or that
there will be any other inconsistent contractual obligations with respect to
any Contracts as a result of the Merger, the Company and Parent will work
together in good faith to seek to develop and implement a plan mutually
acceptable to both the Company and Parent to reconcile such restrictions or inconsistencies,
provided that neither party shall take any action with respect thereto prior to
Closing unless mutually agreed upon by both the Company and Parent.


6.2.          Stockholder Meeting. 
The Company shall cause a meeting of its Stockholders (the “Company Stockholder Meeting”) to be duly
called and held as promptly as reasonably practicable after receipt of SEC
confirmation that the SEC has no further comments to the Proxy Statement for
the purpose of obtaining the Company Stockholder Approval.  Subject to Section 6.3 hereto (including
the right of the Company’s Board of Directors to amend, withdraw, modify,
change, condition or qualify the Company Recommendation pursuant to



 49
 






 



 


Section 6.3(b)), the
Company’s Board of Directors shall recommend adoption by the Company
Stockholders of this Agreement and approval by the Company Stockholders of the
transactions contemplated hereby, including the Merger, and the Company shall
take all other reasonable lawful action to solicit and secure the Company
Stockholder Approval.  Subject to
Section 6.3 hereto (including the right of the Company’s Board of
Directors to amend, withdraw, modify, change, condition or qualify the Company
Recommendation pursuant to Section 6.3(b)), the Company Recommendation,
together with a copy of the opinion referred to in Section 4.16(b), shall
be included in the Proxy Statement. 
Notwithstanding anything to the contrary contained in this Agreement,
the Company may adjourn or postpone the Company Stockholder Meeting to the
extent necessary (i) to ensure that any supplement or amendment to the Proxy
Statement, which is necessary to ensure that the Proxy Statement does not
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, is provided to its
Stockholders in advance of a vote to obtain the Company Stockholder Approval or
(ii) if as of the time for which the Company Stockholder Meeting is originally
scheduled there is an insufficient number of Company Shares represented (either
in person or by proxy) to constitute a quorum necessary to conduct the business
of the Company Stockholder Meeting.


6.3.          Acquisition
Proposals; Board Recommendation.


(a)           The
Company agrees that it shall not, nor shall it permit any Company Subsidiary
to, nor shall it authorize or knowingly permit any officer, director, employee,
investment banker, attorney, accountant, agent or other advisor or
representative (collectively, “Representatives”)
of the Company or any Company Subsidiary, directly or indirectly, to
(i) solicit, initiate or otherwise knowingly encourage the submission of
any Acquisition Proposal, (ii) participate in any discussions or
negotiations regarding, or furnish to any Person any non-public information
with respect to or in connection with, or take any other action knowingly to
facilitate any inquiries or the making of any proposal that constitutes, or
that would reasonably be expected to lead to, any Acquisition Proposal,
(iii) grant any waiver or release under any standstill or similar
agreement with respect to any class or series of the Company’s Equity Interests
(provided that the Company shall be permitted to grant waivers or
releases under any such agreements solely to permit the counterparty thereto to
make an Acquisition Proposal), or (iv) except for the waivers and releases
permitted by the foregoing clause (iii) and as otherwise permitted or required
pursuant to Sections 6.3(d) and 6.3(e), enter into any agreement with respect
to any Acquisition Proposal. 
Notwithstanding anything to the contrary contained in this Agreement, if
the Company receives an unsolicited Acquisition Proposal from a Third Party
that constitutes a Superior Proposal or that the Company’s Board of Directors
determines in good faith could reasonably be expected to lead to the delivery
of a Superior Proposal from that Third Party, prior to obtaining the Company
Stockholder Approval, the Company may, subject to compliance with the provisions
of this Section 6.3, furnish information, including non-public
information, to, and engage in discussions and negotiations with, such Third
Party with respect to its Acquisition Proposal and grant a waiver as provided
in clause (iii) of the immediately preceding sentence (“Permitted Actions”) if the Board of
Directors of the Company concludes in good faith, after consultation with its
outside financial advisors and legal advisors, that, as a result of such
Acquisition Proposal, the failure to take such Permitted Action would be
inconsistent with its fiduciary duties under applicable Law.



 50














 


 


(b)           Except
as permitted by this Section 6.3(b), neither the Board of Directors of the
Company nor any committee thereof shall amend, withdraw, modify, change,
condition or qualify in any manner adverse to Parent or Acquiror, the Company
Recommendation (it being understood and agreed that a “stop, look and listen”
communication by the Board of Directors of the Company to the Company
Stockholders pursuant to Rule 14d-9(f) of the Exchange Act, in connection
with the making or amendment of a tender offer or exchange offer by any Person
other than the Company or any Company Subsidiary, shall not be deemed to
constitute an amendment, withdrawal, modification, change, condition or
qualification of the Company Recommendation for all purposes of this Agreement,
including Section 6.2 and Section 10.1(d)(ii), this Section 6.3 and
Section 10.1(d)).  Notwithstanding
anything in this Section 6.3 to the contrary, prior to obtaining the Company
Stockholder Approval, the Board of Directors of the Company may amend,
withdraw, modify, change, condition or qualify the Company Recommendation in a
manner adverse to Parent or Acquiror, if the Board of Directors of the Company
concludes in good faith, after consultation with its outside legal counsel,
that the failure to take such action would be inconsistent with its fiduciary
duties under applicable Law, provided that if and only if such
amendment, withdrawal, modification, change, condition or qualification is
proposed to be made in response to any Acquisition Proposal then such amendment,
withdrawal, modification, change, condition or qualification shall not be made
(1) unless such Acquisition Proposal constitutes a Superior Proposal,
(2) the Company has complied in all material respects with this
Section 6.3, (3) until after the third Business Day following
delivery to Parent by the Company of a Notice of Superior Proposal and
(4) unless either (x) on or before the expiration of the three (3)
Business Day period following the delivery to Parent of the Notice of Superior
Proposal referred to in the foregoing clause (3), Parent does not make a
Matching Bid in response to such Superior Proposal or (y) following receipt of
a Matching Bid within the three (3) Business Day period, the Board of Directors
of the Company concludes in good faith, after consultation with its outside
legal counsel and financial advisors and after taking into consideration the
Matching Bid, that the Superior Proposal to which the Notice of Superior
Proposal relates continues to be a Superior Proposal.  Any action pursuant to the terms of this
Section 6.3(b) shall not constitute a breach of the Company’s representations,
warranties, covenants or agreements contained in this Agreement.


(c)           Unless
the Company’s Board of Directors has previously withdrawn, or is concurrently
therewith withdrawing, the Company Recommendation in accordance with this
Section 6.3 and otherwise complies with Section 6.3(d), neither the Company’s Board of
Directors nor any committee thereof shall recommend any Acquisition Proposal to
the Company Stockholders or, except as otherwise permitted by this Section 6.3,
enter into any letter of intent, agreement in principle, merger, acquisition or
similar agreement with respect to any Acquisition Proposal.  Notwithstanding anything to the contrary contained
in this Agreement, including this Section 6.3, nothing shall prevent the
Company’s Board of Directors from taking or disclosing a position and complying
with Rule 14e-2 and Rule 14d-9 under the Exchange Act with respect to any
Acquisition Proposal or making any disclosure required by applicable Law.


(d)           Notwithstanding
anything in this Section 6.3 to the contrary, at any time prior to obtaining
the Company Stockholder Approval, the Board of Directors of the Company may, in
response to a Superior Proposal that did not result from a breach of this
Section 6.3, cause the Company to terminate this Agreement pursuant to Section
10.1(c)(ii) and



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concurrently with such termination enter into a definitive agreement
providing for the transactions contemplated by such Superior Proposal; provided,
however, that the Company shall not terminate this Agreement pursuant to
Section 10.1(c)(ii), and any purported termination pursuant to Section
10.1(c)(ii) shall be void and of no force or effect, unless the Company shall
have complied in all material respects with all the provisions of this Section
6.3, including the notification provisions in this Section 6.3(d), and with all
applicable requirements of Section 10.2(b)(ii) (including the payment of the
Company Termination Fee prior to or on the date of such termination) in
connection with such Superior Proposal; and provided  further, however,
that the Company shall not exercise its right to terminate this Agreement
pursuant to Section 10.1(c)(ii): (A) until after the third Business Day
following delivery to Parent of written notice from the Company advising Parent
that the Board of Directors of the Company has received a Superior Proposal,
specifying the material terms and conditions of the Superior Proposal, and identifying
the Person making such Superior Proposal (a “Notice of Superior Proposal”) and stating that the Board of
Directors of the Company intends to cause the Company to exercise its right to
terminate this Agreement pursuant to Section 10.1(c)(ii) (it being understood
and agreed that, prior to any termination pursuant to Section 10.2(c)(ii)
taking effect, any amendment to the price or any other material term of a
Superior Proposal (such amended Superior Proposal, a “Modified
Superior Proposal”) shall require a new Notice of Superior Proposal
and a new three (3) Business Day period with respect to such Modified Superior
Proposal) and (B) unless either (x) on or before the expiration of the three
(3) Business Day period following the delivery to Parent of any Notice of
Superior Proposal, Parent does not make a good faith written proposal (a “Matching Bid”) in response to such Superior Proposal or (y)
following receipt of a Matching Bid within the three (3) Business Day period,
the Board of Directors of the Company concludes in good faith, after
consultation with its outside legal counsel and financial advisors and after
taking into consideration the Matching Bid, that the Superior Proposal to which
the Notice of Superior Proposal relates continues to be a Superior Proposal.


(e)           The Company shall
notify Parent promptly (but in no event later than the next Business Day) after
receipt by the Company of (i) any Acquisition Proposal, (ii) any request for
information relating to the Company or any Company Subsidiary in connection
with an Acquisition Proposal or for access to the properties, books or records
of the Company or any Company Subsidiary, (iii) any inquiry that would
reasonably be expected to lead to an Acquisition Proposal or from any Person
seeking to have discussions or negotiations with the Company relating to a
possible Acquisition Proposal or (iv) any request for a waiver or release under
any standstill or similar agreement by any Person that has made, or informs the
Board of Directors of the Company or such Company Subsidiary that it is
considering making, an Acquisition Proposal; provided, however,
that prior to participating in any discussions or negotiations or furnishing
any such information, the Company shall receive from such Person an executed
confidentiality agreement on terms that are not materially less favorable to
the Company than the Confidentiality Agreement, provided that such
confidentiality agreement with such Person may contain additional provisions
that expressly permit the Company to comply with the provisions of this Section
6.3.  The notice shall indicate the
material terms and conditions of the proposal or request and the identity of
the Person making it and shall include a copy of all written materials provided
by or on behalf of such Person in connection with such proposal, request or
inquiry, and the Company will promptly (but in no event later than the next
Business Day from the receipt thereof) notify Parent and Acquiror of the
Company’s receipt of any material modification of or material amendment to any
Acquisition Proposal (and the



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material terms of such modification or amendment) and provide copies of
all written materials subsequently provided to, by or on behalf of such Person
in connection with such proposal, request or inquiry; provided, however, that
without limiting what changes may be material, any change in the form, amount,
timing or other aspects of the consideration to be paid with respect to the
Acquisition Proposal shall be deemed to be a material modification or a
material amendment.  The Company shall
keep Parent informed in all material respects, on a reasonably current basis,
of the status of any negotiations, discussions and documents with respect to
such Acquisition Proposal, request or inquiry.


(f)            The
Company shall immediately cease, and shall cause any Person acting on its
behalf to cease, and cause to be terminated any existing discussions or
negotiations with any Third Party conducted heretofore with respect to any
Acquisition Proposal and shall request any such Third Parties in possession of
confidential information about the Company or any Company Subsidiary that was
furnished by or on behalf of the Company or any such Subsidiary to return or
destroy all such information in the possession of such Third Party or the agent
or advisor of such Third Party.


6.4.          Termination
of Credit Agreements.  On or prior to the second Business Day prior
to the Closing Date, the Company shall use its reasonable efforts to deliver to
Parent copies of payoff letters (subject to delivery of funds as arranged by
Parent and Acquiror), in reasonable form, from the administration agents under
the Credit Agreements and shall use its commercially reasonable efforts to make
arrangements for the release of all mortgages, liens and other security over
the Company’s and the Company Subsidiaries’ properties and assets securing such
obligations (subject to delivery of funds as arranged by Parent and Acquiror,
if necessary).


6.5.          Resignation
of Directors.  Prior to the Effective Time, the Company
shall deliver to Acquiror evidence satisfactory to Acquiror of the resignation
of all directors of the Company effective at the Effective Time.


6.6.          Rule
16b-3.  Prior to the Effective Time, the Company
shall take such steps as may be reasonably necessary to cause dispositions of
Equity Interests of the Company (including derivative securities) pursuant to
the transactions contemplated by this Agreement by each individual who is a
director or officer of the Company to be exempted under Rule 16b-3 promulgated
under the Exchange Act in accordance with that certain No-Action Letter dated
January 12, 1999 issued by the SEC regarding such matters.


ARTICLE 7


COVENANTS OF PARENT AND ACQUIROR


Each of Parent and Acquiror agrees as set forth below.


7.1.          Director and Officer Liability.


(a)           Parent, Acquiror and
the Surviving Corporation agree that the Surviving Corporation shall adopt on
or prior to the Effective Time, in its certificate of incorporation and
by-laws, the same indemnification, limitation of or exculpation from liability
and expense advancement provisions as those set forth in the Company’s
certificate of



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incorporation and by-laws, in each case as of the date of this
Agreement, and that such provisions shall not be amended, repealed, revoked or
otherwise modified for a period of six (6) years after the Effective Time in
any manner that would adversely affect the rights thereunder of the individuals
who on or prior to the Effective Time were directors, officers, employees or
agents of the Company or any Company Subsidiary or are otherwise entitled to
the benefit of such provisions, unless such modification is required after the
Effective Time by applicable Law.


(b)           Without limiting any
additional rights that any Indemnified Party (as defined below) may have
pursuant to any employment agreement, indemnification agreement or otherwise,
to the fullest extent permitted under applicable Law, commencing at the
Effective Time, Parent and the Surviving Corporation shall jointly and
severally indemnify, defend and hold harmless, each present (as of immediately
prior to the Effective Time) and former director, officer or employee of the
Company and each Company Subsidiary and their respective estates, heirs,
personal representatives, successors and assigns (collectively, the “Indemnified Parties”) against all costs and expenses
(including reasonable attorneys’ and other professionals’ fees and expenses),
judgments, fines, losses, claims, damages, liabilities and settlement amounts
paid in connection with any Claim (whether asserted prior to, at or after the
Effective Time) arising out of or pertaining to any action or inaction in
their capacity as director or officer of the Company or any Company Subsidiary
or their serving at the request of the Company or any Company Subsidiary as a
director, officer, employee, agent, trustee, shareholder, partner or fiduciary
of another Person, pension or other employee benefit plan or enterprise in each
case occurring on or before the Effective Time (including the transactions contemplated
by this Agreement).  Without limiting the
foregoing, in the event of any Claim, (i) Parent and the Surviving
Corporation shall, jointly and severally, (x) periodically advance reasonable
fees and expenses (including attorneys’ and other professionals’ fees and
expenses) with respect to the foregoing and pay the reasonable fees and
expenses of counsel selected by each Indemnified Party, promptly after
statements therefor are received, provided that the Indemnified Party to whom
fees and expenses are advanced or for which fees and expenses of counsel are
paid provides an undertaking to repay such advances and payments if it is
ultimately determined that such Indemnified Party is not entitled to
indemnification, and (y) vigorously assist each Indemnified Party in such
defense, and (ii) subject to the terms of this Section 7.1, Parent
and the Surviving Corporation shall cooperate in the defense of any
matter.  If any Claim is commenced as to
which an Indemnified Party desires to receive indemnification, such Indemnified
Party shall notify the Surviving Corporation with reasonable promptness; provided,
however, that failure to give reasonably prompt notice to the Surviving
Corporation shall not affect the indemnification obligations of Parent and the
Surviving Corporation hereunder except to the extent that the failure to so
notify has actually and materially prejudiced Parent and the Surviving
Corporation in such Claim.  The
Indemnified Party shall have the right to retain counsel of such Indemnified
Party’s own choice to represent such Person; and such counsel shall, to the
extent consistent with its professional responsibilities, reasonably cooperate
with the Surviving Corporation and any counsel designated by the Surviving
Corporation.  Parent and the Surviving
Corporation shall be liable only for any settlement of any Claim against an
Indemnified Party made with Parent or Surviving Corporation’s written consent,
which consent shall not be unreasonably withheld, conditioned or delayed.  Parent and the Surviving Corporation shall
not, without the prior written consent of an Indemnified Party, settle or
compromise any Claim, or permit a default or consent to the entry of any
judgment in respect thereof, unless such settlement, compromise or consent
includes, as an unconditional term thereof, the giving by the claimant to such
Indemnified Party of an



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unconditional release from all liability and obligations (civil or
criminal or monetary or otherwise) in respect of such Claim.


(c)           Parent
agrees that the Company will cause to be put in place immediately prior to the
Effective Time “tail” insurance policies with a claims period of at least six
years from the Effective Time from an insurance carrier with the same or better
credit rating as the Company’s current insurance carrier with respect to
directors’ and officers’ liability insurance in an amount and scope no more
favorable than the Company’s existing policies as in effect as of the date
hereof with respect to matters existing or occurring at or prior to the
Effective Time.


(d)           All
rights to indemnification and/or advancement of expenses contained in any
agreement with any Indemnified Parties as in effect on the date hereof with
respect to matters occurring on or prior to the Effective Time (including the
transactions contemplated hereby) shall survive the Merger and continue in full
force and effect.  Parent and the
Surviving Corporation shall indemnify any Indemnified Party against all
reasonable costs and expenses (including attorneys’ and other professionals’
fees and expenses), such amount to be payable in advance upon request as
provided in Section 7.1(b), relating to the enforcement of such Indemnified
Party’s rights under this Section 7.1 or under any charter, bylaw or agreement
regardless of whether such Indemnified Party is ultimately determined to be
entitled to indemnification hereunder or thereunder, provided that such
Indemnified Party provides an undertaking to repay any advances of costs and
expenses if it is ultimately determined that such Indemnified Party is not
entitled to indemnification hereunder or thereunder.


(e)           This
Section 7.1 shall survive the consummation of the Merger and is intended
to be for the benefit of, and shall be enforceable by, the Indemnified Parties
referred to herein, their heirs and personal representatives and shall be
binding on Parent and the Surviving Corporation and their successors and
assigns and the covenants and agreements contained herein shall not be deemed
exclusive of any other rights to which an Indemnified Party is entitled,
whether pursuant to Law, Contract or otherwise.


(f)            If
Parent or the Surviving Corporation or any of their successors or assigns
(i) consolidates with or merges into any other Person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger,
or (ii) transfers or conveys all or substantially all of its properties
and assets to any Person, then, and in each case, to the extent not assumed by
operation of law, proper provision shall be made so that the successors and
assigns of Parent or the Surviving Corporation, as the case may be, shall
assume the obligations set forth in this Section 7.1 and all rights to
indemnification and/or advancement of expenses contained in any agreement with
any Indemnified Parties as in effect on the date hereof with respect to matters
occurring on or prior to the Effective Time (including the transactions
contemplated hereby).  The provisions of
this Section 7.1 are intended to be for the benefit of, and shall be enforceable
by, the Indemnified Parties and the Surviving Corporation, and his or her or
its heirs and representatives.


(g)           Nothing in this
Agreement is intended to, shall be construed to or shall release, waive or
impair any rights to directors’ and officers’ insurance claims under any policy
that is or has been in existence with respect to the Company or any of its
officers,



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directors or employees, it being understood and agreed that the
indemnification provided for in this Section 7.1 is not prior to or in substitution
for any such claims under such policies.


7.2.          Employee
Benefits.


(a)           Except
as otherwise provided in this Section 7.2, for a period of one (1) year after
the Effective Time, the Surviving Corporation shall, and Parent shall cause the
Surviving Corporation to, provide to individuals who are employees of the
Company and each Company Subsidiary immediately prior to the Effective Time and
who subsequently become employees of the Surviving Corporation (the “Continuing Employees”), with employee benefits (excluding
equity based benefits or awards and any defined benefit retirement plan
benefits) that, in the aggregate, are comparable to the employee benefits
provided by Parent and its Subsidiaries to similarly situated employees of
Parent or its Subsidiaries immediately prior to the Effective Time.


(b)           Parent
and the Surviving Corporation will cause the employee benefit plans that such
Continuing Employees are or become eligible to participate in to take into
account for purposes of eligibility and vesting thereunder service by such
employees with the Company or any Subsidiary as if such service were with the
Surviving Corporation or any of its Subsidiaries, as the case may be, to the
same extent that such service was credited under any analogous Company Plan
immediately prior to the Effective Time. 
Following the Effective Time, Continuing Employees will retain credit
for unused vacation and sick days which were accrued with the Company or a
Subsidiary as of the Effective Time.  In
addition, if the Effective Time falls within an annual period of coverage under
any group health plan of the Surviving Corporation or any of its Subsidiaries,
each Continuing Employee shall be given credit for covered expenses paid by
that employee under comparable Company Plans during the applicable coverage
period through the Effective Time toward satisfaction of any annual deductible
limitation and out-of-pocket maximum that may apply under that group health
plan of the Surviving Corporation and its Subsidiaries.  Except as otherwise provided in this Section
7.2, nothing herein shall limit the ability of Parent, the Surviving
Corporation or any of their respective Subsidiaries to amend or terminate any
of the Company Plans in accordance with their terms at any time.


(c)           Parent
agrees to adopt as binding and enforceable policies and continue after the
Effective Time, and to cause the Surviving Corporation to continue, the
Trammell Crow Company 2006 Annual Principal Bonus Plan, Trammell Crow Company
Severance Pay Policy and Trammell Crow Company Retention Plan (the “2006 Plans”), in each case as adopted by the Board of
Directors of the Company prior to the Effective Time and in the form set forth
on, or with respect to the Trammell Crow Company Retention Plan in accordance
with the term sheet set forth on, Section 7.2(c) of the Company Disclosure
Schedule, with respect to Continuing Employees until (i) the payment of all
amounts due and payable under the Trammell Crow Company Retention Plan and with
respect to calendar year 2006 in the case of the Trammell Crow Company 2006
Annual Principal Bonus Plan and (ii) the
one-year anniversary of the Closing Date in the case of the Trammell Crow
Company Severance Pay Policy.



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(d)           Effective
as of the day immediately preceding the Effective Date, the Company shall take
all corporate actions necessary to effectuate the termination of the Trammell
Crow Company Retirement Savings Plan (the “Company 401(k) Plan”), subject to and conditioned upon the
occurrence of the Effective Time, unless Parent provides notice to the Company
at least 15 days prior to the Effective Time that the Company 401(k) Plan shall
not be terminated.  The Parent shall
receive from the Company evidence that action to effectuate the termination of
the Company 401(k) Plan has been taken pursuant to a resolution of the Company’s
Board of Directors (the form and substance of such resolution shall be subject
to review and approval of the Parent, which approval shall not be unreasonably
withheld).


(e)           The
provisions of this Section 7.2 are for the sole benefit of the parties to this
Agreement and nothing herein, expressed or implied, is intended or shall be
construed to confer upon or give to any person (including for the avoidance of
doubt any Company Employees or Company Independent Contractors), other than the
parties hereto and their respective permitted successors and assigns, any legal
or equitable or other rights or remedies (with respect to the matters provided
in this Section 7.2) under any provision of this Agreement.  Notwithstanding the foregoing, the provisions
of this Section 7.2(e) shall in no way limit any legal or equitable or other
rights or remedies of any person (including for the avoidance of doubt any
Company Employees or Company Independent Contractors) under the 2006 Plans or
under any other Contract or communications between such person and any of the
Company, Parent or the Surviving Corporation.


7.3.          Transfer
Taxes.  The parties shall cooperate in the
preparation, execution and filing of all returns, questionnaires, applications
or other documents regarding all state, local and foreign real property
transfer or gains, sales, use, transfer, value added, stock transfer and stamp
taxes, any transfer, recording, registration and other fees or similar Taxes (“Transfer Taxes”) which become payable in
connection with the transactions contemplated by this Agreement that are
required to be filed on or before the Effective Time.  All Transfer Taxes (including any interest or
penalties with respect thereto) attributable to the Merger shall be timely paid
by Parent, Acquiror or the Surviving Corporation and expressly shall not be a
liability of the holder of any Company Shares.


7.4.          Debt
Tender Offer or Redemption.


(a)           No later than seven
(7) days after the date of this Agreement, Parent shall cause CB Richard Ellis
Services, Inc. (“Services”) to
launch a tender offer and Consent Solicitation (the ”Debt Tender
Offer”) for all of the outstanding 9-3/4% Senior Notes due May 15,
2010 of Services (the ”Notes”) on the
terms set forth on Schedule 7.4. 
Promptly upon the receipt of the Requested Consents with respect to the
Indenture, Parent will cause Services to enter into a supplemental indenture or
supplemental indentures reflecting the amendments to such indentures approved
by such Requested Consent and Parent will use all reasonable efforts to cause
the relevant indenture trustee to promptly enter into such supplemental
indenture or supplemental indentures; provided, that the amendments
contained in such supplemental indentures shall become operative upon the
acceptance of the Notes tendered in the Debt Tender Offer.  The closing of any Debt Tender Offer shall
not be conditioned on the occurrence of the Closing, and Parent shall use, and
shall cause Services to use, all reasonable efforts to cause the Debt Tender
Offer to close on or prior to the Closing Date. 
Upon the closing



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of the Debt Tender Offer in accordance with the terms of the Debt
Tender Offer, Parent will cause Services to accept for purchase and purchase
the Notes tendered in the Debt Tender Offer (the ”Tendered Notes”) and purchase all of the Tendered Notes,
including payment of any applicable premiums, and all related fees and
expenses.  For purposes of this
Agreement, “Consent Solicitation” means a
solicitation of the Requested Consents from the holders of the Notes; and “Requested Consents” means the consents of holders of a
majority in principal amount of the Notes to the amendments to the Indenture
and the Notes described in Section 7.4 of the Parent Disclosure Schedule
or in the applicable Consent Solicitation materials, as the case may be.


(b)           In
the event that the Requested Consents shall not have been obtained by Services
on or prior to March 16, 2007, Parent shall promptly thereafter deliver, or
cause to be delivered, to the holders of the Notes a notice of redemption for
all of the outstanding Notes and take, or cause to be taken, all other actions
reasonably necessary to cause the redemption of the Notes pursuant to the
Indenture, dated as of May 22, 2003, between Services and U.S. Bank National
Association (as amended, the “Indenture”)
and, as of March 16, 2007, the satisfaction and discharge of the Indenture and
the Notes.


7.5.          Parent
Board of Directors.  Subject to applicable Law and the rules of
the New York Stock Exchange, Parent shall cause its Board of Directors to
include (either pursuant to newly-created directorships and/or vacancies, as
determined by Parent in its sole discretion) the following individuals (each
such individual in clause (a) to be selected by Parent in its discretion,
subject to the consent of such individual to serve as a member of the Board of
Directors of Parent and subject as to any individual described in clause (a) or
(b) to the satisfaction of Parent’s corporate governance guidelines as in
effect as of the date of this Agreement): 
(a) two members of the Board of Directors of the Company immediately
prior to the Effective Time who will qualify as “independent” (as defined by
Section 303A.02 of the New York Stock Exchange Listed Company Manual and
Section 10A of the Exchange Act (or any successor provisions)) members of the
Board of Directors of Parent, which appointment to the Board of Directors of
Parent shall become effective at or promptly after the Effective Time, and (b) the
chief executive officer of the Company immediately prior to the Effective Time,
which appointment of the chief executive officer of the Company to the Board of
Directors of Parent shall become effective on the Closing Date.


ARTICLE 8


COVENANTS
OF PARENT ACQUIROR AND THE COMPANY


The parties hereto agree as set forth below.


8.1.          Efforts. 
Subject to Section 8.2 and the other terms and conditions of this
Agreement, each party will use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable Law to consummate the Merger and the other
transactions contemplated by this Agreement, including preparing and filing as
promptly as practicable all documentation to effect all necessary filings,
notices, petitions, statements, registrations, submissions of information,
applications and other documents necessary to consummate the Merger and the
other transactions contemplated by this



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Agreement; provided,
however, that in no event shall any Party or its Subsidiaries be required to
pay, and without Parent’s prior consent the Company and the Company
Subsidiaries shall not pay, prior to the Effective Time any fee, penalties or
other consideration to any Third Party to obtain any consent or approval
required for the consummation of the Merger under any Contract.


8.2.          Governmental Approvals.


(a)           Except for the filings and notifications made pursuant to
applicable Antitrust Laws, to which Sections 8.2(b), (c), (d), (e), (f), (g), (h)
and (i), and not this Section 8.2(a), shall apply, within ten (10) Business Days after the date hereof, each of Parent,
Acquiror and the Company shall, and shall cause its Subsidiaries to prepare and
file with the appropriate Governmental Entities such authorizations, consents,
notifications, certifications, registrations, declarations and filings that are
necessary in respect of the Permits set forth on Schedule 8.2(a) and shall
diligently and expeditiously prosecute, and shall cooperate fully with each
other in the prosecution of, such matters.


(b)           On or before November 6, 2006, or any shorter period
as required by applicable Antitrust Laws, each of Parent and the Company shall
file, or cause to be filed by their respective “ultimate parent entities”, any
Notification and Report Forms and related material required to be filed by it
with the Federal Trade Commission  (the “FTC”) and the Antitrust Division of the United States
Department of Justice under the HSR Act (the “Antitrust
Division”) with respect to the transactions contemplated by this
Agreement and thereafter shall promptly make any further filings pursuant
thereto that may be necessary, proper or advisable.


(c)           Upon
and subject to the terms of this Section 8.2, Parent and the Company shall, and
shall cause their respective Subsidiaries to: (i) use all of their respective
reasonable efforts to obtain prompt termination of any waiting period under the
HSR Act and prompt termination of any other requisite waiting period under any
applicable Law; (ii) reasonably cooperate and consult with each other in
connection with the making of all filings, notifications and any other material
actions pursuant to this Section 8.2, including subject to applicable Law, by
permitting counsel for the other party to review in advance, and consider in
good faith the views of the other party in connection with, any proposed
written communication to any Governmental Entity and by providing counsel for
the other party with copies of all filings and submissions made by such party
and all correspondence between such party (and its advisors) with any
Governmental Entity and any other information supplied by such party and such
party’s Subsidiaries to a Governmental Entity or received from such a
Governmental Entity in connection with the transactions contemplated by this
Agreement; provided, however,
that (A) materials may be redacted before being provided to the other party (x)
to remove (1) references concerning the valuation of Parent, the Company, or
any of their Subsidiaries, (2) independent broker production information and
(3) individual customer pricing information, (y) as necessary to comply with
contractual arrangements, and (z) as necessary to avoid disclosure of other
competitively sensitive information or to address reasonable privilege or
confidentiality concerns, and (B) copies of documents filed by a party hereto
pursuant to Item 4(c) of the Notification and Report Form filed with the FTC
and the Antitrust Division pursuant to Section 8.2(b) shall not be required to
be provided to any other party hereto; (iii) furnish to the other parties such
information and assistance as such parties reasonably may request in connection
with the preparation of any submissions to, or agency proceedings by, any
Governmental Entity;



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and (iv) promptly inform the other party of
any communications with, and inquiries or requests for information from, such
Governmental Entities in connection with the transactions contemplated by this
Agreement.  Materials included in
Sections 8.2(a) and 8.2(b) above will be provided to outside counsel pursuant
to a joint defense agreement (the “Joint
Defense Agreement”) so long as the producing party has the legal
right to provide such materials to outside counsel for the other party pursuant
to a Joint Defense Agreement.


(d)           If any objections are asserted by any Governmental Entity
with respect to the transactions contemplated hereby, or if any action is
instituted by any Governmental Entity challenging any of the transactions
contemplated hereby as violative of any applicable Antitrust Law or an Order is
issued enjoining the Merger under any applicable Antitrust Law, Parent and
Acquiror shall, subject to the provisions of this Section 8.2, use all reasonable efforts to resolve any
such objections or challenge as such Governmental Entity may have to such
transactions under such Law or to have such Order vacated, reversed or
otherwise removed in accordance with applicable legal procedures with the goal
of enabling the transactions contemplated by this Agreement to be consummated
by the End Date, including subject to Section 8.2(e), an agreement to (i) sell
or otherwise dispose of, or hold separate and agree to sell or otherwise
dispose of, assets, categories of assets or businesses of the Company or its Subsidiaries;
(ii) terminate existing relationships and contractual rights and obligations of
the Company or its Subsidiaries; (iii) terminate any relevant venture or other
arrangement of the Company; or (iv) effectuate any other change or
restructuring of the Company (and to enter into agreements or stipulate to the
entry of an order or decree or file appropriate applications with the FTC, the
Antitrust Division or other Governmental Entity), and the Company shall use all reasonable efforts to assist Parent
and Acquiror in effectuating the foregoing; provided, however,
that (A) the Company shall not take any of the foregoing actions without the
prior written consent of Parent, and (B) Parent shall not take any of the
foregoing actions without the prior written consent of the Company if such
actions would bind the Company to take any action (including paying money or
entering into any other obligation) irrespective of whether the Closing
occurs.  Parent, Acquiror and the Company
and their respective Subsidiaries shall, subject to the provisions of this
Section 8.2, use all their respective reasonable efforts to seek to lift,
reverse or remove any temporary restraining order, preliminary or permanent
injunction or other Order or decree that would otherwise give rise to a failure
of any Antitrust Conditions.


(e)           Notwithstanding anything to the contrary contained in this
Agreement, (i) Parent and Acquiror will not be obligated to agree to take any
action, or accept any conditions, restrictions, obligations or requirements
with respect to Parent and its Subsidiaries (as constituted without giving
effect to the Merger) and (ii) Parent and Acquiror shall not be obligated to
agree, and neither the Company nor any Subsidiary shall agree without Parent’s prior written consent, to take
any action or accept any conditions, restrictions, obligations or requirements
with respect to the Company and its Subsidiaries if such actions, conditions,
restrictions, obligations or requirements would have, or would be reasonably
likely to have, individually or in the aggregate, a Company Material Adverse
Effect or would result in the sale, divestiture, other disposition or loss of
twenty-five percent (25%) or more of the consolidated revenue of any one or
more of the following businesses of the Company:  Property Management, Facilities Management,
or Project Management (and whether any such disposition would, individually or
in the aggregate with other dispositions in such line of business, result in a loss
of twenty-percent (25%) or more of the consolidated revenue of such line of
business shall



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be determined on a pro forma basis by utilizing the consolidated
results of operations of the Company for the year ending 2006 and assuming that
the disposition occurred on January 1, 2006).


(f)            Parent
will determine strategy, lead all proceedings and coordinate all activities
with respect to seeking any actions, consents, approvals or waivers of any
Governmental Entity as contemplated hereby, and, subject to the other
provisions of this Section 8.2 (including Section 8.2(e)), the Company and its
Subsidiaries will take such lawful actions as reasonably requested by Parent in
connection with obtaining such consents, approvals or waivers. Notwithstanding
Parent’s rights to lead all proceedings as provided in the prior sentence,
Parent shall not require the Company to, and the Company shall not be required
to, take any action with respect to satisfying the Antitrust Conditions which
would bind the Company or its Subsidiaries irrespective of whether the Closing
occurs.


(g)           In
furtherance and not in limitation of the other covenants of the parties
contained in this Section 8.2, each party agrees to cooperate and use all
reasonable efforts to assist in any defense by any other party hereto of the
transactions contemplated by this Agreement before any Governmental Entity
reviewing the transactions contemplated by this Agreement, including by
providing (as promptly as practicable) such information as may be requested by
such Governmental Entity or such assistance as may be reasonably requested by
the other party hereto in such defense.


(h)           As
used herein, “Antitrust Conditions”
means any of the conditions set forth in Section 9.1(b) and Section 9.1(c) (but
solely, in the case of Section 9.1(c), to the extent the order, injunction,
judgment or decree referred to in such Section is issued or brought under
applicable Antitrust Laws).


(i)            From
the date of this Agreement through the date of termination of the required
waiting period under the HSR Act, the Company, Parent and Acquiror and their
respective Subsidiaries shall not take any action that would reasonably be
expected to hinder or delay the obtaining of clearance or the expiration of the
applicable waiting period under the HSR Act or any other applicable Antitrust
Law.


8.3.          Proxy Statement.  As soon as practicable and in any event no
later than ten (10) days after execution of this Agreement, the Company shall
prepare the preliminary Proxy Statement and file the preliminary Proxy
Statement with the SEC under the Exchange Act. 
The Company shall use all reasonable efforts to have the preliminary
Proxy Statement cleared by the SEC. 
Parent, Acquiror and the Company shall cooperate with each other in the
preparation of the Proxy Statement, and the Company shall notify Acquiror of
the receipt of any comments of the SEC with respect to the Proxy Statement and
of any requests by the SEC for any amendment or supplement thereto or for
additional information and shall provide to Parent promptly copies of all
correspondence between the Company or any representative of the Company and the
SEC.  Parent shall promptly provide the
Company with such information regarding Parent and its Subsidiaries as may be
required to be included in the Proxy Statement or as may be reasonably required
to respond to any comment of the SEC. 
The Company shall give Parent and its counsel a reasonable opportunity
to review and comment on the Proxy Statement and any other documents filed with
the SEC or mailed to the Company Stockholders prior to



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their being filed with, or sent to, the SEC or mailed
to the Company Stockholders and shall give Parent and its counsel a reasonable
opportunity to review and comment on all amendments and supplements to the
Proxy Statement and any other documents filed with, or sent to, the SEC or
mailed to the Company Stockholders and all responses to requests for additional
information and replies to comments prior to their being filed with, or sent
to, the SEC or mailed to Company Stockholders. 
Each of the Company, Parent and Acquiror agrees to use all reasonable
efforts, after consultation with the other parties hereto, to respond promptly
to all such comments of and requests by the SEC.  As promptly as practicable after the Proxy
Statement has been cleared by the SEC, the Company shall file the definitive
Proxy Statement with the SEC and cause the Proxy Statement to be mailed to the
Stockholders of record, as of the record date established by the Board of
Directors of the Company.  Each of the
Company, Parent and Acquiror promptly shall correct any information provided
(or omitted) by it and used in the Proxy Statement that shall have become false
or misleading in any material respect to ensure that the Proxy Statement does
not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and the Company shall
take all steps necessary to file with the SEC and have cleared by the SEC any
amendment or supplement to the Proxy Statement as to correct the same and to
cause the Proxy Statement as so corrected to be disseminated to the Company
Stockholders, in each case to the extent required by applicable Law.


8.4.          Public Announcements.  The parties shall cooperate with each other
in the development and distribution of, and consult with each other before
issuing, any press release or making any public statement or announcement with
respect to this Agreement, the Voting Agreements and the transactions
contemplated hereby and thereby and shall not issue any such press release or
make any such public statement or announcement without the prior consent of the
other parties (which shall not be unreasonably withheld or delayed), except as
may be required by applicable Law or any listing agreement with any national
securities exchange.


8.5.          Access
to Information; Notification of Certain Matters.


(a)           From
the date hereof until the Effective Time and subject to applicable Law, the
Company and each Company Subsidiary shall, upon reasonable advance notice,
(i) give Parent and Acquiror and their counsel, financial advisors,
financing sources, auditors and other authorized representatives reasonable
access (in accordance with such procedures as are mutually agreed to between
Parent and the Company prior to any such access) to its offices, properties,
books and records; (ii) furnish or make available to Parent and Acquiror
and their counsel, financial advisors, financing sources, auditors and other
authorized representatives any financial and operating data and other material
information in the possession of the Company or any Company Subsidiary as those
Persons may reasonably request; and (iii) instruct its employees, counsel,
financial advisors, financing sources, auditors and other authorized representatives
to cooperate with the reasonable requests of Parent and Acquiror and their
counsel, financial advisors, auditors and other authorized representatives, in
the case of clauses (i), (ii) and (iii), for the purpose of familiarizing
itself with the Company and each of its Subsidiaries in anticipation of or
reasonably related to the consummation of the transactions contemplated by this
Agreement, including the integration of the Company, the Company Subsidiaries,
the Minority Investments and the Special Purposes Vehicles and their respective
businesses, operations, assets and properties with those of Parent and
Acquiror.  Any access



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pursuant to this Section
8.5 shall be conducted in a manner which will not interfere unreasonably
with the conduct of the business of the Company and its Subsidiaries and shall
be in accordance with this Section 8.5(a) and any other existing agreements or
obligations binding on the Company or any of its Subsidiaries.  Unless otherwise required by Law or as
otherwise provided in this Agreement, each of Parent and Acquiror will hold,
and will cause its respective officers, employees, counsel, financial advisors,
financing sources, auditors and other authorized representatives to hold any
nonpublic information obtained in any investigation in confidence in accordance
with, and agrees to be bound by, the terms of the Confidentiality
Agreement.  No investigations pursuant to
this Section 8.5(a) shall affect any representations or warranties of
the parties herein or the conditions to the obligations of the parties
hereto.  From the date hereof until the
Effective Time, the Company shall, and shall cause its Subsidiaries to, provide
Parent and Acquiror with reasonable access, upon reasonable prior notice to
Chris Kirk, the General Counsel of the Company or any Person designated by him
to receive such notices, to employees and consultants of the Company and its
Subsidiaries for the purpose of enabling Parent and Acquiror to meet with and
make offers of employment or service to one or more of said individuals and to
discuss integration and other transition matters with respect to the
transactions contemplated hereby; provided, however that the
Company shall have the right to have a representative attend each such
meeting.  Notwithstanding the foregoing
provisions of this Section 8.5(a), the Company shall not be required to, or to
cause any of its Subsidiaries to, grant access or furnish information to
Parent.  Acquiror or any of their
respective representatives to the extent that (A) such information is of a
competitively sensitive nature, subject to an attorney/client or attorney work
product privilege or (B) such access or the furnishing of such information is
prohibited by law or an existing Contract. 
Notwithstanding the foregoing provisions of this Section 8.5(a), Parent
and Acquiror shall not have access to personnel records of the Company or any
of its Subsidiaries relating to individual performance or evaluation records,
medical histories or other information that in the Company’s good faith opinion  the disclosure of which could subject the
Company or any of its Subsidiaries to risk of liability.  In addition, except as otherwise expressly
permitted pursuant to this Section 8.5(a), Parent and Acquiror shall not
contact any personnel of the Company or its Subsidiaries regarding or in
connection with the transactions contemplated by this Agreement without the
express prior consent of Trammell Crow Company’s general counsel or such other
person as has been designated by him in writing.  Each of Parent and Acquiror agrees that it
will not, and will cause its representatives not to, use any information
obtained pursuant to this Section 8.5(a) for any purpose unrelated to the
consummation of the transactions contemplated by this Agreement or the conduct
of the business of the Company, Company Subsidiaries, Special Purpose Vehicles
and Company Minority Investments after the Effective Time, including the
integration of the Company, the Company Subsidiaries, the Minority Investments
and the Special Purposes Vehicles and their respective businesses, operations,
assets and properties with those of Parent and Acquiror.


(b)           The
Company shall give prompt notice to Parent and Acquiror, and Parent and
Acquiror shall give prompt notice to the Company, of (i) any representation
or warranty of such party contained in this Agreement that has become untrue or
inaccurate such that the conditions set forth in Article 9 would not be
satisfied; (ii) any failure of the Company or Parent and Acquiror, as the
case may be, to comply with or satisfy, any covenant or agreement contained in
this Agreement to be complied with or satisfied by it hereunder such that the
conditions set forth in Article 9 would not be satisfied; (iii) any notice
or other communication



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from any Third Party
alleging that the consent of such Third Party is or may be required in
connection with the transactions contemplated by this Agreement; and (iv) the
occurrence of any event, development or circumstance which has had or would be
reasonably likely to result in a Company Material Adverse Effect or Parent
Material Adverse Effect, as applicable; provided, however, that
the delivery of any notice pursuant to this Section 8.5(b) shall not
limit or otherwise affect (x) the representations, warranties, covenants
or agreements of the parties hereto or (y) the remedies available
hereunder to the party giving or receiving such notice.


8.6.          Disposition of Litigation.  The Company will consult with Parent with
respect to any action by any Third Party to restrain or prohibit or otherwise
oppose the Merger or the other transactions contemplated by this Agreement or
any Voting Agreement and, subject to Section 6.3, will use all reasonable
efforts to resist any such effort to restrain or prohibit or otherwise oppose
the Merger or the other transactions contemplated by this Agreement or any
Voting Agreement.  Parent may participate
in (but not control) the defense of any stockholder litigation against the
Company and its directors relating to the transactions contemplated by this
Agreement or any Voting Agreement at Parent’s sole cost and expense.  In addition, subject to Section 6.3, the
Company will not voluntarily cooperate with any Third Party which has sought or
may hereafter seek to restrain or prohibit or otherwise oppose the Merger or
the other transactions contemplated by this Agreement or any Voting Agreement
and will reasonably cooperate with Parent to resist any such effort to restrain
or prohibit or otherwise oppose the Merger or the other transactions contemplated
by this Agreement or any Voting Agreement.


8.7.          Confidentiality Agreements.  The parties acknowledge that the Company and
the Parent entered into the Confidentiality Agreement, which Confidentiality
Agreement shall continue in full force and effect in accordance with its terms
until the earlier of (a) the Effective Time or (b) the expiration of
the Confidentiality Agreement according to its terms.  Subject to Section 6.3 hereto, without the
prior written consent of Parent, neither the Company nor any Company Subsidiary
will waive or fail to enforce any provision of any confidentiality or similar
agreement which the Company or any Company Subsidiary has entered into in
connection with any completed or proposed business combination relating to the
Company or such Company Subsidiary.


8.8.          Financing
Arrangements.


(a)           Parent
and Acquiror shall use all reasonable efforts to take, or cause to be taken,
all actions and do, or cause to be done, all things necessary, proper or
advisable to arrange the Financing on the terms and conditions described in the
Commitment Letter, including using all reasonable efforts to (i) satisfy
on a timely basis all conditions applicable to Parent and Acquiror to obtaining
the Financing set forth therein, (ii) prior to the last day of the
Marketing Period, negotiate and enter into definitive agreements with respect
thereto on the terms and conditions contemplated by the Commitment Letter
(including any related flex provisions) or on other terms in the aggregate not
materially less favorable to Parent and in no event less favorable as to
pricing and other economic terms (as determined in the good faith reasonable
judgment of Parent), (iii) timely prepare the necessary offering
circulars, private placement memoranda, or other offering documents or
marketing materials with respect to the Financing, (iv) commence the
syndication activities contemplated by the Commitment Letter within seven (7)
days following the Initiation Date and (v) consummate the Financing at or
prior



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to Closing.  Parent shall give
the Company prompt notice (A) of any material breach by any party of the
Commitment Letter of which Parent or Acquiror becomes aware, (B) if and when
Parent or Acquiror becomes aware that any portion of the financing contemplated
by the Commitment Letter will not be available to consummate the transactions
contemplated by this Agreement and (C) of any termination of the Commitment
Letter.  Parent and Acquiror shall keep
the Company informed on a reasonably current basis in reasonable detail of the
status of their efforts to arrange the Financing or Alternative Financing and
provide to the Company copies of executed copies of the definitive documents
related to the Financing or Alternative Financing (excluding any fee letters,
engagement letters or other agreements that are confidential by their
terms).  If any portion of the Financing
becomes unavailable on the terms and conditions contemplated in the Commitment
Letter, Parent and Acquiror shall use all reasonable efforts to arrange to
obtain alternative financing, including from alternative sources, on terms not
materially less favorable to Parent in the aggregate and in no event less
favorable as to pricing and other economic terms (as determined in the good
faith reasonable judgment of Parent) than the Financing contemplated by the
Commitment Letter (“Alternative Financing”)
as promptly as practicable following the occurrence of such event and the
foregoing clauses (i) through (v) shall be applicable to the Alternative
Financing.  Parent and Acquiror shall (1)
comply in all material respects with the Commitment Letter, (2) enforce in all
material respects their rights under the Commitment Letter and (3) not permit
any material amendment or modification to be made to, or any waiver of any material
provision or remedy under, the Commitment Letter or the fee letter referred to
in the Commitment Letter without the prior written consent of the Company.  Parent and Acquiror shall provide notice to
the Company promptly upon receiving the Financing or, if applicable, the
Alternative Financing.


(b)           The
Company agrees to provide, and shall cause the Company Subsidiaries and its and
their Representatives to provide, all reasonable cooperation (including with
respect to timeliness) in connection with the arrangement of the Financing as
may be reasonably requested by Parent (provided that such requested cooperation
does not unreasonably interfere with the ongoing operations of the Company and
the Company Subsidiaries), including (i) participation in meetings, drafting
sessions, presentations, road shows, and rating agency and due diligence
sessions, (ii) furnishing Parent and its financing sources with financial and
other pertinent information regarding the Company as may be reasonably
requested by Parent to consummate the Financing, including all financial
statements and financial data with respect to the Company and the Company
Subsidiaries required to satisfy conditions 3. and 4. set forth in Annex II of
the Commitment Letter (the “Required
Financial Information”), (iii) reasonably assisting Parent and its
financing sources in the preparation of (A) offering documents, business
projections, pro forma financial information, private placement memoranda, bank
information, memoranda, prospectuses and similar documents for any portion of
the Financing or Alternative Financing and (B) materials for rating agency
presentations, (iv) reasonably cooperating with the marketing efforts of Parent
and its financing sources for any portion of the Financing, (v) taking all
action reasonably requested by Parent so that effective as of the Effective
Time (A) the board of directors of each Company Subsidiary that will
become a guarantor under Parent’s credit facilities consists of one or more
employees of Parent or its Subsidiaries and (B) one or more employees of
Parent or its Subsidiaries is appointed as an officer of such Company
Subsidiary, (vi) reasonably cooperating with Parent’s legal counsel in
connection with any legal opinions that such legal counsel may be required to deliver
in connection with the Financing, including using all reasonable efforts to remedy any corporate
conditions which may impede the delivery



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of any required legal opinion, (vii) using all reasonable efforts
to obtain surveys and title insurance as reasonably requested by Parent, (viii)
authorizing the independent auditor of the Company to provide its opinion and
consents with respect to the financial statements included in the Required
Financial Information, and (ix) providing monthly and quarterly unaudited
financial statements (excluding footnotes) within the timeframe, and solely to
the extent that the Company prepares such financial statements for the Company’s
Board of Directors, provided that (A) none of the Company or any
Company Subsidiary shall be required to incur any liability in connection with
the Financing or Alternative Financing prior to the Effective Time,
(B) the pre-Closing Board of Directors of the Company and the pre-Closing
directors, managers and general partners of Company Subsidiaries shall not be
required to adopt resolutions approving the agreements, documents and
instruments pursuant to which the Financing or Alternative Financing is
obtained, (C) none of the Company or any Company Subsidiary shall be
required to execute prior to the Effective Time any definitive financing
documents, including any credit or other agreements, pledge or security
documents, or other certificates, legal opinions or documents in connection
with the Financing or Alternative Financing, (D) except as expressly
provided above, none of the Company or any Company Subsidiary shall be required
to take any corporate actions prior to the Effective Time to permit the
consummation of the Financing on the Alternative Financing and (E) Parent
and Acquiror shall jointly and severally indemnify, defend and hold harmless
the pre-Closing directors and officers of the Company and the Company
Subsidiaries from and against any liability or obligation to providers of the
Financing or Alternative Financing in connection with the Financing or
Alternative Financing.  Except for the
representations and warranties of the Company set forth in Article 4 of this
Agreement, the Company shall not have any liability to Parent or Acquiror in
respect of any financial statements, other financial information or data or
other information provided pursuant to this Section 8.8.  If this Agreement is terminated prior to the
Effective Time, Parent shall, promptly upon request by the Company, reimburse
the Company for all reasonable out-of-pocket costs incurred by the Company or
the Company Subsidiaries in connection with such cooperation.  The Company agrees that the consolidated
balance sheets, statements of income and cash flows and all other financial statements
of the Company and its Subsidiaries included in the Required Financial
Information will be prepared in accordance with GAAP consistently applied
throughout the periods involved and will each fairly present, in all material
respects, the financial condition and results of operations and cash flows and
statements of stockholders equity of such entities in accordance with GAAP as
of and for the periods presented therein (subject to normal year-end
adjustments in the case of unaudited interim financial statements and also
subject to the absence of notes to the financial statements that may be
required by GAAP and subject to the Company’s ability to obtain financial
information from Savills plc.  If the
Company is unable to account for its investment in Savills plc utilizing the
equity method of accounting because of the Company’s inability to obtain
adequate financial information from Savills plc to so account for such
investment, then the parties agree that for purposes of this Section 8.8(b) and
Section 4.8 the failure to do so in the Company’s financial statements shall
not be deemed to render such financial statements inconsistent, or
noncompliant, with GAAP.  The parties
hereto acknowledge and agree that the provision of separate financial
statements or other separate financial data regarding Savills plc shall not be
required in order for the Company to comply with its obligations pursuant to
this Section 8.8(b) or for Parent and Acquiror to satisfy conditions 3.
and 4. set forth in Annex II of the Commitment Letter.



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(c)           Parent,
Acquiror and the Company shall reasonably cooperate with each other such that
the Company has reasonable time and opportunity to publicly announce the
financial condition and results of operations of the Company and its
consolidated Subsidiaries that are reflected in the financial information,
including the Required Financial Information, prior to or contemporaneously
with the delivery of such financial information to Parent’s and Acquiror’s
financing sources, including Lender, in connection with the Financing or Alternative
Financing.


8.9.          Investigation
and Agreement by Parent and Acquiror; No Other Representations or Warranties.


(a)           Parent
and Acquiror acknowledge and agree that they have made their own inquiry and
investigation into, and, based thereon, have formed an independent judgment
concerning, the Company and its Subsidiaries and their businesses and
operations, and Parent and Acquiror have requested such documents and
information from the Company as each such party considers material in
determining whether to enter into this Agreement and to consummate the
transactions contemplated in this Agreement. 
Each of Parent and Acquiror acknowledges and agrees that it has had an
opportunity to ask all questions of and receive answers from the Company with
respect to any matter such party considers material in determining whether to
enter into this Agreement and to consummate the transactions contemplated in
this Agreement.  In connection with
Parent’s and Acquiror’s investigation of the Company and its Subsidiaries and
their businesses and operations, Parent and Acquiror and their representatives
have received from the Company or its representatives certain projections and
other forecasts for the Company and its Subsidiaries and certain estimates,
plans and budget information.  Each of
Parent and Acquiror acknowledges and agrees that there are uncertainties
inherent in attempting to make such projections, forecasts, estimates, plans
and budgets; that Parent and Acquiror are fully responsible for making their
own evaluation of the Company including as to the adequacy and accuracy of all
estimates, projections, forecasts, plans and budgets so furnished to them or
their representatives, and that the Company does not make any representations
regarding such estimates, projections, forecasts, plans and budgets except as
provided in Article 4.  Notwithstanding
the foregoing or any other provisions of this Agreement, no information or
knowledge obtained in any investigation conducted by Parent or Acquiror or
provided to Parent or Acquiror shall affect or be deemed to modify any
representation or warranty contained herein or the conditions to the
obligations of the parties hereto to consummate the transactions contemplated
hereby.


(b)           Each
of Parent and Acquiror agrees that, except for the representations and
warranties made by the Company that are expressly set forth in Article 4 of
this Agreement, the Company does not make, and has not made, any
representations or warranties in connection with the Merger and the
transactions contemplated hereby.  Except
as expressly set forth herein, no Person has been authorized by the Company to
make any representation or warranty relating to the Company or any Company
Subsidiary or their respective businesses, or otherwise in connection with the
Merger and the transactions contemplated hereby and, if made, such
representation or warranty may not be relied upon as having been authorized by
the Company. Without limiting the generality of the foregoing, each of Parent
and Acquiror agrees that, except as provided in Article 4, neither the Company,
any holder of Equity Interests of the Company nor any of their respective
Affiliates or



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representatives, makes or
has made any representation or warranty to Parent and Acquiror or any of their
representatives or Affiliates with respect to


(i)            any forward-looking
information such as projections, forecasts, estimates, plans or budgets of
future revenues, expenses or expenditures, future results of operations (or any
component thereof), future cash flows (or any component thereof) or future
financial condition (or any component thereof) of the Company or any of its
Subsidiaries or the future business, operations or affairs of the Company or
any of its Subsidiaries heretofore or hereafter delivered to or made available
to Parent and Acquiror or their respective representatives or Affiliates; or


(ii)           any other
information, statement or documents heretofore or hereafter delivered to or
made available to Parent and Acquiror or their respective representatives or
Affiliates, including the information in the on-line data room, with respect to
the Company or any of its Subsidiaries or the business, operations or affairs
of the Company or any of its Subsidiaries, except to the extent and as
expressly covered by a representation and warranty made by the Company and
contained in Article 4 of this Agreement.


(c)           The
Company agrees that, except for the representations and warranties made by
Parent and Acquiror that are expressly set forth in Article 5 of this
Agreement, Parent and Acquiror do not make, and have not made, any
representations or warranties in connection with the Merger and the
transactions contemplated hereby other than those expressly set forth
herein.  Except as expressly set forth
herein, no Person has been authorized by Parent or Acquiror to make any
representation or warranty relating to Parent or Acquiror or their respective
businesses, or otherwise in connection with the Merger and the transactions
contemplated hereby and, if made, such representation or warranty may not be
relied upon as having been authorized by Parent or Acquiror.


ARTICLE 9


CONDITIONS
TO MERGER


9.1.          Conditions to the
Obligations of Each Party. 
The obligations of the Company, Parent and Acquiror to consummate the
Merger are subject to the satisfaction of the following conditions:


(a)           the
Company Stockholder Approval shall have been obtained;


(b)           the
waiting period (and any extension thereof) applicable to the Merger under the
HSR Act and other applicable Antitrust Laws set forth on Section 9.1(b) of the
Company Disclosure Schedule shall have been terminated or shall have expired,
and all consents, approvals, permits, authorizations and waiting periods under
all Antitrust Laws set forth in Section 9.1(b) of the Company Disclosure Schedule,
and all consents, approvals, permits, authorizations and waiting periods or
waiting periods of Governmental Entities set forth in Section 9.1(b) of the
Company Disclosure Schedule to the Merger, shall have been obtained or expired,
as the case may be; and



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(c)           no
temporary restraining order, preliminary or permanent injunction or other
judgment, order or decree issued by a court or agency of competent jurisdiction
located in the United States or in another jurisdiction outside of the United
States in which the Company or any of its Subsidiaries, or Parent or any of its
Subsidiaries, engage in business activities that prohibits the consummation of
the Merger shall have been issued and remain in effect, and no Law shall have
been enacted, issued, enforced, entered, or promulgated that prohibits or makes
illegal the consummation of the Merger or any of the other material
transactions contemplated by this Agreement.


9.2.          Conditions to the
Obligations of the Company. 
The obligations of the Company to consummate the Merger are subject to
the satisfaction or waiver in writing by the Company of the following further
conditions:


(a)           The
representations and warranties of Parent and Acquiror contained in this
Agreement, disregarding all qualifications and exceptions contained therein
relating to materiality or Parent Material Adverse Effect, shall be true and
correct as of the Closing Date as if made on and as of the Closing Date (or, if
given as of a specific date, at and as of such date), except where the failure
or failures of any such representations and warranties to be so true and
correct have not had and would not reasonably be expected to have, individually
or in the aggregate, a Parent Material Adverse Effect.  Parent and Acquiror shall have performed and
complied in all material respects with all covenants and agreements required by
this Agreement to be performed or complied with by it on or prior to the
Closing Date.  Parent and Acquiror shall
each have delivered to the Company a certificate from an officer of Parent and
Acquiror, as applicable, dated the Closing Date, to the foregoing effect.


9.3.          Conditions to the
Obligations of Parent and Acquiror.  The obligations of Parent and Acquiror to
consummate the Merger are subject to the satisfaction or waiver in writing by
Parent of the following further conditions:


(a)           The
representations and warranties of the Company contained in this Agreement
(other than representations and warranties set forth in Sections 4.2, 4.5,
4.9(c), 4.13(c), 4.16, 4.23(a) and 4.23(b), disregarding all qualifications and
exceptions contained therein relating to materiality or Company Material
Adverse Effect, shall be true and correct as of the Closing Date as if made on
and as of the Closing Date (or, if given as of a specific date, at and as of
such date), except where the failure or failures of any such representations
and warranties to be so true and correct have not had and would not reasonably
expected to have, individually or in the aggregate, a Company Material Adverse
Effect.  The representations and
warranties of the Company contained in Sections 4.2, 4.5, 4.13(c), 4.16,
4.23(a) and 4.23(b) shall be true and correct in all material respects as of
the Closing Date as if made on and as of the Closing Date (or, if given as of a
specific date, at and as of such date). 
The representations and warranties of the Company contained in Section
4.9(c) shall be true and correct as of the Closing Date as if made on and as of
the Closing Date.  The Company shall have
performed and complied in all material respects with all covenants and
agreements required by this Agreement to be performed or complied with by it on
or prior to the Closing Date.  The
Company shall have delivered to Parent and Acquiror a certificate from an
officer of the Company, dated the Closing Date, to the foregoing effect.



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(b)           From
the date of this Agreement to the Closing Date, there shall not have occurred
any action, event, occurrence, development or state of circumstances or facts
that has had or would be reasonably likely to have, individually or in the
aggregate, a Company Material Adverse Effect.


ARTICLE
10


TERMINATION


10.1.        Termination.  This Agreement may be terminated and the
Merger abandoned at any time prior to the Effective Time by written notice,
whether before or after the Company Stockholder Approval shall have been
obtained:


(a)           by mutual written agreement of Parent and the Company, in
each case, duly authorized by their respective Boards of Directors or duly
authorized committees thereof;


(b)           by either Parent or the Company, if


(i)            the
Effective Time shall not have occurred on or before the May 7, 2007 (the “End Date”); provided,
however, that the right to terminate this Agreement under this
Section 10.1(b)(i) shall not be available to any party whose breach
of or failure to perform any representation, warranty, covenant or agreement
has been the principal cause of, or resulted in, the failure of the Merger to
occur on or before the date this Agreement is sought to be terminated pursuant
to this clause (i); provided further, however, that if neither Parent nor
Acquiror is in material breach of any representation, warranty, covenant or
agreement contained herein other than the failure of Parent or Acquiror to
consummate the Merger when required to do so pursuant to the terms of this
Agreement solely by reason of a failure to receive the proceeds of the
Financing contemplated by the Commitment Letter, then the foregoing proviso
shall not apply to Parent in such circumstance, provided further, however, that
if on the End Date (as determined before any extension thereof pursuant to this
proviso) all conditions set forth in Sections 9.1, 9.2 and 9.3 have been
satisfied (treating such date as if it were the Closing Date) (other than the
Antitrust Conditions and the delivery of the officer’s certificates
contemplated by Sections 9.2(a) and 9.3(a)), then either the Company or
Parent may extend the End Date to August 6, 2007 by delivery of written
notice of such extension to the other on or within five Business Days prior to the
End Date (as so extended, the “End Date”);


(ii)           if
any Governmental Entity of competent jurisdiction shall have issued an order,
decree or ruling or taken any other action permanently restraining, enjoining
or otherwise prohibiting the Merger, in either case, (A) on the basis that the
Merger and the transactions contemplated thereby are violative of any Antitrust
Law or (B) for any reason other than as contemplated by Section 10.1(b)(ii)(A),
and, in each case, such order decree, ruling or action shall have become final
and nonappealable; provided, however, that the right to terminate
under this Section 10.1(b)(ii) shall not be



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available to any party whose material breach of this Agreement has been
the principal cause of such action; or


(iii)          the
Company Stockholder Meeting (or any adjournment or postponement thereof) has
been convened and concluded and the Company Stockholder Approval shall not have
been obtained; or


(c)           by the Company,


(i)            if
a breach of or failure to perform in any material respect any representation,
warranty, covenant or agreement set forth in this Agreement by Parent or
Acquiror shall have occurred which breach or failure to perform would give rise
to the failure of a condition set forth in Section 9.1 or 9.2, and, if
curable, such breach or failure has not been cured within twenty (20) days (but
not beyond the End Date) after the receipt of written notice thereof from the
Company, or such breach or failure is not reasonably capable of being cured
within twenty (20) days (but not beyond the End Date) after the receipt of
written notice thereof from the Company; provided that the Company may not
terminate this Agreement pursuant to this Section 10.1(c)(i) if it is in
material breach of any of its representations, warranties, covenants and
obligations under this Agreement so as to cause any of the conditions set forth
in Section 9.1 or 9.3 not to be satisfied; or


(ii)           in
response to a Superior Proposal as contemplated by Section 6.3(d), provided,
however, that termination of this Agreement pursuant to this Section
10.1(c)(ii) shall not be effective until the Termination Fee has been paid to
Acquiror in accordance with Section 10.2(b)(ii); or


(iii)          if
the Effective Time shall not have occurred on or before the date required
pursuant to Section 2.1(d) due to Parent or Acquiror’s failure to effect
the Closing in breach of this Agreement, and at the time of such termination
(treating such date of termination as if it were the Closing Date) the
conditions set forth in Sections 9.1 and 9.3 (other than the delivery by
the Company of the officer’s certificate contemplated by Section 9.3(a))
have been satisfied or waived; or


(d)           by Parent, if:


(i)            a
breach of or failure to perform in any material respect any representation,
warranty, covenant or agreement set forth in this Agreement by the Company
shall have occurred which breach or failure to perform would give rise to the
failure of a condition set forth in Sections 9.1 or 9.3, and, if curable,
such breach or failure has not been cured within twenty (20) days (but not
beyond the End Date) after the receipt of written notice thereof from Parent,
or such breach or failure is not reasonably capable of being cured within
twenty (20) days (but not beyond the End Date) after receipt of written notice
thereof from Parent; provided that Parent may not terminate this Agreement
pursuant to this Section 10.1(d)(i) if it is in material breach of any of its
representations, warranties, covenants and obligations under this Agreement so
as to cause any of the conditions set forth in Section 9.1 or 9.2 not to be
satisfied; or



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(ii)   (A)
the Board of Directors of the Company or any other duly authorized committee of
the Board of Directors of the Company shall (1) amend, withdraw, modify,
change, condition or qualify the Company Recommendation in a manner adverse to
Parent or
Acquiror or fail to include the Company Recommendation in the Proxy Statement;
(2) approve or recommend to the Company Stockholders an Acquisition
Proposal (other than by Parent, Acquiror or their Affiliates); (3) approve
or recommend that the Company Stockholders tender, or otherwise fail to
recommend the Company Stockholders not tender, their Company Shares in any
tender or exchange offer that is an Acquisition Proposal (other than by Parent,
Acquiror or their Subsidiaries);
or (4) approve a resolution, publicly propose or agree to do any of the
matters set forth in the immediately foregoing clauses (1) through (3); or
(B) after the third Business
Day following Parent’s receipt of a Notice of Superior Proposal unless prior to
such termination (x) a new Notice of Superior Proposal has been delivered
with respect to an Acquisition Proposal by a different Third Party than the
prior Notice of Superior Proposal (in which event, such new Notice of Superior
Proposal shall then be subject to this Section 10.1(d)(ii)(B)), (y) a new
Notice of Superior Proposal has been delivered with respect to a Modified
Superior Proposal (in which event, such new Notice of Superior Proposal shall
then be subject to this Section 10.1(d)(ii)(B)) or (z) the Company shall have
withdrawn such Notice of Superior Proposal.


10.2.        Effect of Termination.


(a)           If this Agreement is terminated pursuant to
Section 10.1, this Agreement shall forthwith become null and void and
there shall be no liability or obligation on the part of Parent, Acquiror, the
Company or any of their respective Representatives, stockholders or Affiliates,
except that, subject
to Sections 10.2(d) and 10.2(g), no such termination shall relieve any
party hereto of any liability or damages resulting from fraud or any breach of
this Agreement prior to such termination; provided, that the provisions
of Sections 8.4, 8.7, 8.9, 10.2, 10.3 and Article 11 of this
Agreement and the definitions of the defined terms used in such provisions of
this Agreement, wherever located herein, shall remain in full force and effect
and survive any termination of this Agreement.


(b)           In the event that:


(i)            this
Agreement is terminated by Parent pursuant to Section 10.1(d)(ii), the Company shall pay
to Parent (in immediately
available funds to an account designated by Parent) on the next Business Day
following such termination a cash amount equal to $40,000,000 (the “Company Termination Fee”);


(ii)           this
Agreement is terminated by the Company pursuant to Section 10.1(c)(ii), then on
the date of termination of this Agreement, the Company shall pay to Parent (for
and on behalf of Parent and Acquiror) (by wire transfer of immediately
available funds to an account designated by Parent) a cash amount equal to the
Company Termination Fee; or


(iii)  (A) this
Agreement is terminated pursuant to Section 10.1(b)(i) (provided that at the
time of such termination (treating such date of termination



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as if it were the Closing Date) pursuant to Section 10.1(b)(i),
the conditions precedent in Sections 9.1(b) and 9.1(c) shall have been
satisfied and the principal reason for the Closing not having previously
occurred shall not be the failure to satisfy the condition precedent set forth
in Section 9.2(a) or the failure by Parent and Acquiror to receive the proceeds
of the Financing contemplated by the Commitment Letter), Section 10.1(b)(iii)
or Section 10.1(d)(i), (B) prior to such termination, an Acquisition Proposal (with all
percentages included in the definition of Acquisition Proposal increased to
thirty percent (30%) for purposes of this definition) is publicly announced, publicly disclosed or
is consummated, and (C) a transaction contemplated by the definition of Acquisition Proposal (which need not be the same Acquisition Proposal
and with all percentages included in the definition of Acquisition
Proposal increased to thirty percent (30%) for purposes of this definition) is
completed or an agreement is
executed by the parties thereto with respect to an Acquisition Proposal (with
all percentages included in the definition of Acquisition Proposal increased to
thirty percent (30%) for purposes of this definition) prior
to or within the twelve (12) months following the date on which this Agreement
is terminated, the Company shall pay to Parent (in immediately available funds
to an account designated by Parent) on the next Business Day following the
earlier of the closing of the transaction contemplated by such Acquisition
Proposal or the Company entering into a definitive agreement contemplating such
Acquisition Proposal, a cash amount equal to the Company Termination Fee.


(c)           In the event that this Agreement is terminated by Parent
or the Company pursuant to Section 10.1(b)(i) or Section 10.1(b)(ii)(A) and, in
each case, at the time of such termination,


(i)            both
Parent and the Company have the right, in accordance with the terms hereof, to
terminate this Agreement pursuant to Section 10.1(b)(i) or Section
10.1(b)(ii)(A), as applicable,


(ii)           neither
Parent nor the Company has the right to terminate this Agreement pursuant to
Section 10.1(b)(ii)(B) (or would have the right to so terminate assuming that
the relevant order, decree, ruling or action referenced in Section
10.1(b)(ii)(B) has become final and non-appealable at the time of such
termination),


(iii)          in
the event of such termination pursuant to Section 10.1(b)(i) and treating
such date of termination as if it were the Closing Date, the conditions set
forth in Sections 9.1 (other than the Antitrust Conditions) and 9.3 (other
than the delivery by the Company of the officer’s certificate contemplated by
Section 9.3(a)) have been satisfied, and


(iv)          in
the event of such termination pursuant to Section 10.1(b)(ii)(A), the
conditions set forth in Section 9.1 (other than the Antitrust Conditions)
shall have been satisfied or waived or are reasonably likely to have been
satisfied by the End Date and (treating such date of termination as if it were
the Closing Date) the conditions set forth in Section 9.3 shall be satisfied
other than the delivery by the Company of the officer’s certificate
contemplated by Section 9.3(a),



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then Parent shall pay to the Company (by wire transfer
of immediately available funds to an account designated by the Company) on the
next Business Day following such termination a cash amount equal to
$100,000,000 (the “Parent Antitrust
Termination Fee”).


(d)           In the event that this Agreement is terminated


(i)            by
the Company pursuant to Section 10.1(b)(i), and at the time of such
termination only the Company has the right to terminate this Agreement pursuant
to the provisions of Section 10.1(b)(i);


(ii)           by
the Company or Parent pursuant to Section 10.1(b)(i) where, at the time of
such termination, both the Company and Parent have the right to terminate this
Agreement pursuant to the provisions of Section 10.1(b)(i) and Parent and
Acquiror have failed to consummate the Merger when required to do so pursuant
to the terms of this Agreement solely by reason of a failure to receive the
proceeds of the Financing contemplated by the Commitment Letter;


(iii)          by
the Company pursuant to Section 10.1(b)(ii), and at the time of such
termination, only the Company has the right to terminate this Agreement
pursuant to the provisions of Section 10.1(b)(ii);


(iv)          by
the Company pursuant to Section 10.1(c)(i);


(v)           by
the Company pursuant to Section 10.1(c)(iii); or,


(vi)          by
Parent or Acquiror when they did not have the right to terminate this Agreement
pursuant to Section 10.1


then, in the case of the foregoing clauses (i) through
(vi), inclusive, Parent and Acquiror, jointly and severally, agree to pay to
the Company (by wire transfer of immediately available funds to an account
designated by the Company) a cash amount equal to $200,000,000 (the “Parent Breach Termination Fee”) on the next
Business Day following the date of termination of this Agreement.  The parties hereto acknowledge that the
agreements contained in this Section 10.2(d) are an integral part of the
transactions contemplated by this Agreement and that the Parent Breach
Termination Fee is not a penalty, but rather is liquidated damages in a
reasonable amount that will compensate the Company for the efforts and
resources expended and opportunities foregone while negotiating this Agreement
and in reliance on this Agreement and on the expectation of the consummation of
the transactions contemplated hereby, and for losses and damages likely to be
incurred or suffered as a result of termination in the circumstances described
in clauses (i) through (vi) of the preceding sentence, which amount would
otherwise be impossible to calculate with precision.  Anything in this Agreement to the contrary
notwithstanding, if this Agreement is terminated pursuant to Section 10.1
under circumstances where the Parent Breach Termination Fee is payable pursuant
to this Section 10.2(d), then subject to the Company’s rights pursuant to
Section 10.2(e), the Company’s right to receipt of payment of the Parent Breach
Termination Fee shall be the sole and exclusive remedy against Parent, Acquiror
and any of their respective Representatives, Affiliates, directors, officers,
employees, partners, managers, members, or stockholders (each, a “Parent Party”)
for any Company Damages.



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(e)           The Company, Parent and Acquiror acknowledge and agree that
the agreements contained in Sections 10.2(b), (c), (d) and (g) are an integral part
of the transactions contemplated by this Agreement, and that, without these
agreements, Company, Parent and Acquiror would not enter into this Agreement;
accordingly (i) if the Company fails promptly to pay the amount due pursuant to
Section 10.2(b) or (ii) Parent or Acquiror fails promptly to pay the amount due
pursuant to Section 10.2(c) or (d),
and, in order to obtain such payment, the Company or Parent, as applicable,
commences a suit that results in a judgment against the Company or Parent for
the Parent Antitrust Termination Fee,
Parent Breach Termination Fee or the Company Termination Fee, as
applicable, the Company shall pay to Parent or Parent shall pay to the Company,
as applicable, its costs and expenses (including reasonable attorneys’ fees and
expenses) in connection with such suit, together with interest on the amount of
the Parent Antitrust Termination Fee,
Parent Breach Termination Fee or Company Termination Fee, as applicable,
from the date such payment was required to be made until the date of payment at
the prime rate of Credit Suisse, in effect on the date such payment was
required to be made.


(f)            If more than one provision contained in Section 10.1 is an
applicable basis for termination of this Agreement by the Company or Parent, as
applicable, then the Company or Parent, as applicable, shall be entitled to
assert more than one provision contained in Section 10.1 as the basis for its
termination of this Agreement and the Company or Parent, as applicable, shall
be entitled to receive payment of the highest remedy available pursuant to this
Section 10.2 arising out of such reasons for termination of this
Agreement, provided that the Company shall not be entitled to more than
one recovery of the Parent Antitrust Termination Fee or the Parent Breach
Termination Fee, as applicable.  For the
avoidance of doubt, under no circumstances will (i) the Company be entitled to
recover both the Parent Antitrust Termination Fee and the Parent Breach
Termination Fee or (ii) Parent and Acquiror be entitled to more than one
recovery of the Company Termination Fee.


(g)           Anything in this Agreement to the contrary
notwithstanding, subject to the Company’s rights pursuant to Section 10.2(e),
the maximum aggregate liability of Parent and Acquiror in the aggregate for all
Company Damages arising out of or resulting from breaches of this Agreement or
any representations, warranties, covenants and agreements contained in this
Agreement shall equal $200,000,000 minus the amount of any Parent Breach
Termination Fee or Parent Antitrust Termination Fee paid to the Company (the “Parent Liability Cap”). 
Subject to the Company’s rights pursuant to Section 10.2(e), the Company
agrees that in no event shall the Company, any Company Subsidiaries or any of
their Affiliates seek (and the Company shall cause its Affiliates not to seek)
any Company Damages or any other recovery, judgment, or damages of any kind,
including consequential, indirect, or punitive damages, against any Parent
Party in excess of the Parent Liability Cap or from any Parent Party other than
Parent and Acquiror.  The parties hereto
acknowledge that the agreements contained in this Section 10.2(g) are an
integral part of the transactions contemplated by this Agreement and that
Parent and Acquiror would not have entered into this Agreement without such
agreements.


10.3.        Fees and Expenses.  Except as otherwise specifically provided
herein, all fees and expenses incurred in connection herewith and the
transactions contemplated hereby shall be paid by the party incurring expenses,
whether or not the Merger is consummated.



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ARTICLE
11


MISCELLANEOUS


11.1.        Notices.  All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
or similar writing) and shall be given,


	
  if to Parent or Acquiror,
  to:

  
	
   

  
	
  CB Richard Ellis
  Group, Inc.

  
	
  100 North
  Sepulveda Boulevard, Suite 1050

  
	
  El Segundo,
  California 90245

  
	
  Attention:
  General Counsel

  
	
  Telecopy No.:
  310-505-4701

  
	
   

  
	
  with a copy to
  (which copy shall not be deemed to be notice to Parent or Acquiror):

  
	
   

  
	
  Simpson Thacher
  & Bartlett LLP

  
	
  2550 Hanover
  Street

  
	
  Palo Alto,
  California 94304

  
	
  Attention:
  Richard Capelouto

  
	
  Facsimile
  Number: (650) 251-5002

  
	
   

  
	
  if to the
  Company, to:

  
	
   

  
	
  Trammell Crow
  Company

  
	
  2001 Ross
  Avenue, Suite 3400

  
	
  Dallas, Texas
  75201

  
	
  Attention:
  Robert Sulentic

  
	
  Telecopy No.:
  214-863-3125

  
	
   

  
	
  with a copy to:

  
	
   

  
	
  Trammell Crow
  Company

  
	
  2001 Ross Avenue,
  Suite 3400

  
	
  Dallas, Texas
  75201

  
	
  Attention:
  General Counsel

  
	
  Telecopy No.:
  214-863-3125

  
	
   

  
	
  with a copy to
  (which copy shall not be deemed to be notice to the Company):

  
	
   

  
	
  Vinson &
  Elkins L.L.P.

  
	
  2001 Ross Avenue

  
	
  3700 Trammell
  Crow Center

  
	
  Dallas, Texas
  75201

  
	
  Attention:
  Michael D. Wortley

  
	
   

  	
  P. Gregory
  Hidalgo

  
	
  Facsimile
  Number: (214) 999-7959

  



 



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or
such other address or facsimile number as a party may hereafter specify for the
purpose by notice to the other parties hereto. Each notice, request or other
communication shall be effective only (a) if given by facsimile, when the
facsimile is transmitted to the facsimile number specified in this
Section and the appropriate facsimile confirmation is received or
(b) if given by overnight courier or personal delivery, when delivered at
the address specified in this Section.


11.2.        Survival.  None of the representations, warranties and,
except as provided in the following sentence, covenants and agreements
contained herein or in any instrument delivered pursuant to this Agreement
shall survive the Effective Time.  Article
3, this Article 11, the
agreements of Parent, Acquiror and the Company in Sections 7.1, 7.2, 7.3, 7.5,
and Section 10.3, Article 11 and those other covenants and agreements contained
herein that by their terms apply, or that are to be performed in whole or in
part, after the Effective Time shall survive the consummation of the Merger.


11.3.        Amendments;
No Waivers.


(a)           Any
provision of this Agreement may be amended or waived prior to the Effective
Time, if, and only if, the amendment or waiver is in writing and signed, in the
case of an amendment, by the Company, Parent and Acquiror or in the case of a
waiver, by the party against whom the waiver is to be effective.


(b)           At
any time prior to the Effective Time, any party hereto may with respect to any
other party hereto (i) extend the time for the performance of any of the
obligations or other acts of such party and (ii) waive any inaccuracies in
the representations and warranties of such party contained herein or in any
document delivered pursuant hereto.  No
such extension or waiver shall be deemed or construed as a continuing extension
or waiver on any occasion other than the one on which such extension or waiver
was granted or as an extension or waiver with respect to any provision of this
Agreement not expressly identified in such extension or waiver on the same or
any other occasion.  No failure or delay
by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by Law.


11.4.        Successors and Assigns.  The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that all or any of the
rights or obligations of Parent or Acquiror may be assigned to any direct or
indirect wholly-owned Subsidiary of such party (which assignment shall not
relieve such assigning party of its obligations hereunder); provided, further,
that other than with respect to the foregoing proviso, no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.  Any purported assignment in violation hereof
shall be null and void.


11.5.        Counterparts;
Effectiveness; Third Party Beneficiaries.  This Agreement may be signed in any number of
counterparts, each of which shall be an original (including any counterpart
transmitted by facsimile or other electronic means of transmission), with the
same effect as if the signatures thereto and hereto were upon the same
instrument. This



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Agreement shall become
effective when each party hereto shall have received counterparts hereof signed
by all of the other parties hereto. 
Except as provided in Sections 7.1, no provision of this Agreement
is intended to confer upon any Person other than the parties hereto any rights
or remedies hereunder.


11.6.        Governing Law.  THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL
LAWS OF THE STATE OF DELAWARE APPLICABLE TO CONTRACTS EXECUTED AND FULLY
PERFORMED WITHIN THE STATE OF DELAWARE.


11.7.        Jurisdiction.  EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES HERETO AGREE THAT
ANY SUIT, ACTION OR PROCEEDING SEEKING TO ENFORCE ANY PROVISION OF, OR BASED ON
ANY MATTER ARISING OUT OF OR IN CONNECTION WITH, THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY SHALL BE BROUGHT IN THE COURT OF CHANCERY OF THE STATE
OF DELAWARE (OR, IN THE CASE OF ANY CLAIM AS TO WHICH THE FEDERAL COURTS HAVE
EXCLUSIVE SUBJECT MATTER JURISDICTION, THE FEDERAL COURT OF THE UNITED STATES
OF AMERICA) SITTING IN THE STATE OF DELAWARE, AND EACH OF THE PARTIES
HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF THOSE COURTS (AND OF THE
APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUIT, ACTION OR PROCEEDING AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUIT, ACTION OR
PROCEEDING IN ANY OF THOSE COURTS OR THAT ANY SUIT, ACTION OR PROCEEDING WHICH
IS BROUGHT IN ANY OF THOSE COURTS HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.  PROCESS IN ANY SUIT, ACTION OR
PROCEEDING MAY BE SERVED ON ANY PARTY ANYWHERE IN THE WORLD, WHETHER WITHIN OR
WITHOUT THE JURISDICTION OF ANY OF THE NAMED COURTS.  WITHOUT LIMITING THE FOREGOING, EACH PARTY
AGREES THAT SERVICE OF PROCESS ON IT BY NOTICE AS PROVIDED IN SECTION 11.1
SHALL BE DEEMED EFFECTIVE SERVICE OF PROCESS.


11.8.        Enforcement.  The parties recognize and agree that if for
any reason any of the provisions of this Agreement are not performed in
accordance with their specific terms or are otherwise breached, immediate and
irreparable harm or injury would be caused for which money damages would not be
an adequate remedy.  Accordingly, each
party agrees that, prior to any termination of this Agreement pursuant to
Section 10.1, but subject to the last sentence of this Section 11.8, the
parties shall be entitled to specific performance of the terms hereof.  In the event that any action shall be brought
in equity to enforce the provisions of this Agreement, no party shall allege, and
each hereby waives the defense, that there is an adequate remedy at Law.  Notwithstanding the foregoing, the Company
shall not be entitled to an injunction to prevent breaches of this Agreement by
Parent or Acquiror or to enforce specifically the terms and provisions of this
Agreement if (i) the Company is in material breach of any of its
representations, warranties, covenants or obligations under this Agreement or
(ii) the Merger has not been consummated due to the reason of a failure of
Parent and Acquiror to receive the



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proceeds of the Financing
contemplated by the Commitment Letter and neither Parent nor Acquiror is, nor
are they collectively, in material breach of its or their respective
representatives, warranties, covenants or obligations under this Agreement so
as to cause any of the conditions set forth in Section 9.1 or 9.2 not to
be satisfied (other than due to a breach consisting of the failure to
consummate the Merger due to the failure to receive the proceeds of the
Financing).  Notwithstanding the
foregoing, neither Parent nor Acquiror shall be entitled to an injunction to
prevent breaches of this Agreement by the Company or to enforce specifically
the terms and provisions of this Agreement if either Parent or Acquiror is, or
collectively are, in material breach of its or their respective
representations, warranties, covenants and obligations under this Agreement so
as to cause any of the conditions set forth in Section 9.1 or 9.2 not to be
satisfied.


11.9.        Entire Agreement.  This Agreement (together with the exhibits
and schedules hereto), the Voting Agreements and the Confidentiality Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both oral
and written, between the parties with respect to the subject matter hereof.


11.10.      Authorship;
Representation by Counsel. 
The parties agree that the terms and language of this Agreement were the
result of negotiations between the parties and, as a result, there shall be no
presumption that any ambiguities in this Agreement shall be resolved against
any party.  Any controversy over
construction of this Agreement shall be decided without regard to events of authorship
or negotiation.  Each of the parties
hereto acknowledges that it has been represented by independent counsel of its
choice throughout all negotiations that have preceded the execution of this
Agreement.


11.11.      Severability.  If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of Law
or public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
adverse to any party.  Upon a
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.


11.12.      Waiver of
Jury Trial.  EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT OR
OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.


11.13.      Rules of
Construction.


(a)           The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this Agreement.  In this Agreement (i) words denoting the
singular include the plural and vice versa, (ii) ”it” or



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“its” or words denoting
any gender include all genders, (iii) the word “including” shall mean “including
without limitation,” whether or not expressed, (iv) any reference herein
to a Section, Article, Paragraph, Clause or Schedule refers to a Section,
Article, Paragraph or Clause of or a Schedule to this Agreement, unless
otherwise stated, and (v) when calculating the period of time within or
following which any act is to be done or steps taken, the date which is the
reference day in calculating such period shall be excluded and if the last day
of such period is not a Business Day, then the period shall end on the next day
which is a Business Day.


(b)           The
inclusion of any information in the Company Disclosure Schedule or Parent and
Acquiror Disclosure Schedule shall not be deemed an admission or
acknowledgment, in and of itself and solely by virtue of the inclusion of such
information in the Company Disclosure Schedule or Parent and Acquiror
Disclosure Schedule, as applicable, that such information is required to be
listed in the Company Disclosure Schedule or Parent and Acquiror Disclosure
Schedule, as applicable, or that such items are material to the Company, Parent
or Acquiror, as the case may be.  The
headings, if any, of the individual sections of each of the Company Disclosure
Schedule and Parent and Acquiror Disclosure Schedule are inserted for
convenience only and shall not be deemed to constitute a part thereof or a part
of this Agreement.  The Company
Disclosure Schedule and Parent and Acquiror Disclosure Schedule are arranged in
sections corresponding to those contained in Articles IV and V, as applicable,
merely for convenience, and the disclosure of an item in one section of the
Company Disclosure Schedule or Parent and Acquiror Disclosure Schedule as an
exception to a particular representation or warranty shall be deemed adequately
disclosed as an exception with respect to all other representations or
warranties to the extent that the relevance of such item to such representations
or warranties is reasonably apparent on the face of such item, notwithstanding
the presence or absence of an appropriate section of the Company Disclosure
Schedule or Parent and Acquiror Disclosure Schedule with respect to such other
representations or warranties or an appropriate cross reference thereto.


(c)           The
specification of any dollar amount in the representations and warranties or
otherwise in this Agreement or in the Company Disclosure Schedule or Parent and
Acquiror Disclosure Schedule is not intended and shall not be deemed to be an
admission or acknowledgment of the materiality of such amounts or items, nor
shall the same be used in any dispute or controversy between the parties to
determine whether any obligation, item or matter (whether or not described
herein or included in any schedule) is or is not material for purposes of this
Agreement.


(d)           The
fact that any representation or warranty of the Company is given only as of the
date of this Agreement shall not prevent any event, circumstance or condition
occurring after the date of this Agreement that would otherwise be within the
scope of such representation or warranty from being taken into account when
determining whether the condition set forth in Section 9.3(b) has been
satisfied as of the Closing Date.


11.14.      Affiliate
Liability.  Each of the
following is herein referred to as a “Company Affiliate” or “Parent Affiliate”,
as applicable:  (i) any direct or
indirect holder of equity interests or securities in the Company or Parent, as
applicable, (whether limited or general partners, members, stockholders or
otherwise), and (ii) any director, officer, employee, representative or agent
of (1) the Company or Parent, as applicable, or (2) any Person who



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controls the Company or
Parent, as applicable.  Except to the
extent that a Company Affiliate is an express party thereto, no Company
Affiliate shall have any liability or obligation to Parent or Acquiror of any
nature whatsoever in connection with or under this Agreement, the Voting
Agreements or the transactions contemplated hereby or thereby as a result of
such Person’s status as a Company Affiliate, and Parent and Acquiror hereby
waive and release all claims of any such liability and obligation.  Except to the extent that a Parent Affiliate
is an express party thereto, no Parent Affiliate shall have any liability or
obligation to the Company of any nature whatsoever in connection with or under
this Agreement, the Voting Agreements or the transactions contemplated hereby
or thereby as a result of such Person’s status as a Parent Affiliate, and the
Company hereby waives and releases all claims of any such liability and
obligation.


*                              *                              *



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IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective authorized officers as
of the day and year first above written.


	
  

  	
  TRAMMELL
  CROW COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   /s/ Robert
  E. Sulentic

  	
   

  
	
   

  	
   

  	
  Name:  Robert E. Sulentic

  
	
   

  	
   

  	
  Title:  Chairman and CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CB
  RICHARD ELLIS GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   /s/ Brett
  White

  	
   

  
	
   

  	
   

  	
  Name:  Brett White

  
	
   

  	
   

  	
  Title:  President and Chief Executive

  
	
   

  	
   

  	
            Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  A-2 ACQUISITION
  CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:  

  	
   /s/ Brett
  White

  	
   

  
	
   

  	
   

  	
  Name:  Brett White

  
	
   

  	
   

  	
  Title:  President

  
					



 



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